should be reduced to judgment before it | debts, must be read in connection with § could be set up in bar of a discharge. 17, limiting the operation of discharges, in which the provable character of claims for fraud in general is recognized, by excepting from a discharge claims for frauds which have been reduced to judgment, or which were committed by the bankrupt while acting as an officer, or in a fiduciary capac The intent of Congress in changing the language of the act of 1867 seems to have been to restore the act of 1841, which, as already observed, extended the benefits of the law to every debtor who had not been guilty of defalcation as a public officer or in a fiduciary capacity, the act of 1898 add-ity. If no fraud could be made the basis of ing, however, to the excepted class those against whom a judgment for fraud had been obtained. a provable debt, why were certain frauds excepted from the operation of a discharge! We are, therefore, of opinion that if a debt Some stress is laid by the supreme court originates or is "founded upon an open aoof Illinois upon the punctuation of subd. count or upon a contract, express or im4, § 17, presumably upon the insertion of a plied," it is provable against the bankrupt's comma after the word "misappropriation," estate, though the creditor may elect to thereby indicating a severance of that which bring his action in trover, as for a frauduprecedes from that which follows. While lent conversion, instead of in assumpsit, for we do not deny that punctuation may shed a balance due upon an open account. It some light upon the construction of a stat- certainly could not have been the intention ute (Joy v. St. Louis, 138 U. S. 1, 32, 34 of Congress to extend the operation of the L. ed. 843, 852, 11 Sup. Ct. Rep. 243), we do discharge under § 17 to debts that were not think it is entitled to weight in this not provable under § 63a. It results from case. In the enumeration of persons or the construction we have given the latter things in acts of Congress it has been the section that all debts originating upon an custom for many years to insert a comma open account or upon a contract, express or before the final "and" or "or" which pre-implied, are provable, though plaintiff elect cedes the last thing enumerated, apparently to bring his action for fraud. for greater precision, but without special In the case under consideration defendsignificance. So little is punctuation a partants purchased, under the instructions of of statutes that courts will read them with the plaintiff, certain stocks, and opened an such stops as will give effect to the whole. account with him, charging him with comDoe ex dem. Willis v. Martin, 4 Term Rep. mission and interest, and crediting him with 65, 2 Revised Rep. 324; Hammock v. Farm- amounts received as margins. Subsequenters' Loan & T. Co. 105 U. S. 77, 84, 26 L. ly, and without the knowledge of the plained. 1111, 1113; United States v. Lacher, 134 tiff, they sold these stocks, and thereby conU. S. 624, 628, 33 L. ed. 1080, 1083, 10 Sup.verted them to their own use. Without goCt. Rep. 625; United States v. Isham, 17 ing into the details of the facts, it is eviWall. 496, 21 L. ed. 728. 2. But it is strenuously insisted by the plaintiff that a claim for the conversion of personal property is not within the scope of § 17, because it is not a “provable debt" within the definition of § 63a. Did the latter section stand alone, there would be some ground for saying that a claim, though "founded upon an open account, or upon a contract, express or implied," would not be a provable debt, if plaintiff elected to treat the conversion as fraudulent, and sue in trover, though he might have chosen to waive the tort, and bring an action for a balance due on account. An early English case (Parker v. Crole, 5 Bing. 63, 2 Moore & P. 150) is cited to the effect that the operation of the discharge is determined by the election of the creditor to sue in assumpsit or case. A like ruling was made in certain cases under the bankruptcy acts of 1841 and 1867. Williamson v. Dickens, 27 N. C (15 Ired. L.) 259; Hughes v. Oliver, 8 Pa. 426; Bradner v. Strang, 89 N. Y. 299-307. dent that the plaintiff might have sued them in an action on contract, charging them with the money advanced and with the value of the stock; or in an action of trover, based upon their conversion. For reasons above given, we do not think that his election to sue in tort deprived his debt of its provable character, and that, as there is no evidence that the frauds perpetrated by the defendants were committed by them in an official or fiduciary capacity, plaintiff's claim against them was discharged by the proceedings in bankruptcy. The judgment of the Supreme Court of Illinois is therefore reversed, and the case remanded to that court for further proceedings not inconsistent with this opinion. (195 U. S. 172) RICARDO AMADO, Piff. in Err, v. UNITED STATES. Error to district court of the United States But we think that § 63a, defining provable 1. *194 173 of final judgments of the district court of the United States for the district of Porto Rico is not necessarily confined, by the act of April 12, 1900 (31 Stat. at L. 77, 85, chap. 191), 85, to the class of cases therein described as those where the Constitution of the United States or a treaty thereof or an act of Congress is brought in question and the right claimed thereunder is denied, in view of the prior clause of that section, authorizing such review if the case be one which, if determined in a territorial supreme court, may be carried up to the Federal Supreme Court. 2. The claim in a written motion in arrest of Judgment or sentence that the indictment did not set forth "an offense under the statutes iffs, customs, and duties shall be levied, collected, and paid upon all articles imported into Porto Rico from ports other than those of the United States which are required by law to be collected upon articles imported into the United States from foreign countries;" also, that "the statutory laws of the United States not locally inapplicable, except as hereinbefore or hereinafter otherwise provided, shall have the same force and effect in Porto Rico as in the United States, except the internal revenue laws, which, in view of the provisions of section three, shall not have force and effect in Porto Rico.". 31 Stat. at L. 77, 80, chap. 191, §§ 2, 14. "These statutes being in force, the plaintiff in error, Amado, was indicted in the district court of the United States for Porto Rico, upon the charge of having, on May 28th, 1901, unlawfully received, concealed, and facilitated the transportation, concealment, and sale of certain specified quantities of Holland gin, vermouth, brandy, and Danish beer, theretofore, as the accused well knew, fraudulently imported into Porto Rico, contrary to law, without the payment No-to the United States of the duties imposed upon such articles. of the United States" is too indefinite to give the Federal Supreme Court jurisdiction of a writ of error to the district court of the United States for the district of Porto Rico, under the act of April 12, 1900 (31 Stat. at L. 77, 85, chap. 191), § 35, as of a case where the Constitution of the United States or a treaty thereof or an act of Congress was brought in question and the right claimed thereunder denied. [No. 33.] Submitted October 25, 1904. Decided vember 7, 1904. IN N ERROR to the District Court of the United States for the District of Porto Rico to review a conviction of having unlawfully received and concealed merchandise which had been imported without the payment of the customs duties. Dismissed for want of jurisdiction. The accused was duly arraigned, and found guilty by a jury. A motion in arrest of judgment having been overruled, he was sentenced to confinement in the penitentiary of Porto Rico for one year and one day, and to pay a fine of $500. A new trial was denied, and the accused sued out the present writ of error. In allowing the writ the judge of the dis The facts are stated in the opinion. Plaintiff in error submitted the cause on trict court expressed some doubt whether the record. error would lie, but he resolved the doubt Assistant Attorney General Purdy for de- in favor of the defendant. fendant in error. The government insists that the writ of error should be dismissed for want of ju Mr. Justice Harlan delivered the opinion risdiction in this court to review the judg of the court: ment below; otherwise, that the judgment should be affirmed. The Revised Statutes of the United States provide that "if any person shall fraudulently or knowingly import or bring into the United States, or assist in so doing, any merchandise, contrary to law, or shall receive, conceal, buy, sell, or in any manner facilitate the transportation, concealment, or sale of, such merchandise after importation, knowing the same to have been imported contrary to law, such merchandise shall be forfeited, and the offender shall be fined in any sum not exceeding five thousand dollars nor less than fifty dollars, or be imprisoned for any time not exceeding two years, or both." § 3082, U. S. Comp. Stat. 1901, p. 2014. It is provided by the above act of April 12th, 1900, that the district court of the United States for Porto Rico "shall have, in addition to the ordinary jurisdiction of district courts of the United States, jurisdiction of all cases cognizant in the circuit courts of the United States, and shall proceed therein in the same manner as a circuit court." 31 Stat. at L. 77, 84, chap. 191, § 34. The act also provides that writs of error and appeals from the final decisions of the supreme court of Porto Rico and the district court of the United States shall be allowed and may be taken to this court "in The act of April 12th, 1900, temporarily the same manner and under the same reguproviding revenues and a civil government for Porto Rico, declares, among other things, that on and after its passage "the same tar lations and in the same cases as from the supreme courts of the territories of the United States; and such writs of error and appeal shall be allowed in all cases where the Constitution of the United States, or treaty thereof, or an act of Congress, is brought in question and the right claimed thereunder is denied." Id. § 35. sufficient under the statute prescribing the offense charged, and the objections to it were too indefinite to meet the requirements of the act of 1900, and make the case one which, by that act, could be brought to this court for review. Unless the case was one in which the judgment could be reviewed here, then such judgment would be final, and not subject to review; for no case determined in the United States court for Porto Rico can be carried to a circuit court of appeals. We said, in Royal Ins. Co. v. Martin, 192 U. S. 149, 160, 48 L. ed. 385, 388, 24 Sup. Ct. Rep. 247, 250, that "Congress did not intend that any connection should exist between the United States court for Porto Rico and any circuit court of appeals established under the act of 1891 [26 Stat. at L. 826, chap. 517, U. 8. Comp. Stat. 1901, p. 547].” The review of the final judgment of the district court of the United States for Porto Rico is not restricted to those cases in which the Constitution, or a treaty of the United States, or an act of Congress is brought in question and the right claimed under it denied. This construction is too narrow and technical. There may be cases -certainly civil cases-in the United States district court for Porto Rico that do not involve any question arising under the Constitution, or a treaty, or an act of Congress; and yet if the case be one which, if determined in a supreme court of one of the territories of the United States, could be brought here for re-examination, the final judgment could be reviewed by this court, although no right of a distinctly Federal nature was involved. Royal Ins. Co. v. Martin, 192 U. S. 149-60, 48 L. ed. 385-388, 24 Sup. Ct. Rep. 247; Hijo v. United States, 194 U. S. 315, 320, Mrs. BEULAH SCHWEER and J. C. Nor48 L ed. 994, 995, 24 Sup. Ct. Rep. 727. See Crowley v. United States, 194 U. S. The writ of error must be dismissed for want of jurisdiction in this court, and it is so ordered. man, Appts., Bankrupt. (195 U. S. 171) 461, 48 L. ed. 1075, 24 Sup. Ct. Rep. 731. J. C. BROWN, Trustee for G. H. Schweer, But even this test, if applied here, will not avail the accused; for the statutes regulating the appellate jurisdiction of this court do not authorize a review of the final judgment in a supreme court of one of the territories of the United States in a criminal case like this one. Can our jurisdiction be sustained by reference to the words, in the Porto Rico act, "in all cases where the Constitution of the United States, or a treaty thereof, or an act of Congress, is brought in question and the We right claimed thereunder is denied?" must answer this question in the negative. The nearest approach to a claim of specific right under the Constitution or a treaty of Direct appeal to Federal Supreme Courtwhen jurisdiction is in issue. A direct appeal from a Federal district court A vember 7, 1904. the United States, or under an act of Con- Submitted October 31, 1904. Decided No gress, was when the accused, in his written motion to arrest the judgment or sentence, insisted that the indictment did not PPEAL from the District Court of the set forth "an offense under the statutes of United States for the Eastern District the United States." But that language of Arkansas to review a decree requiring the amounted to nothing more, in legal effect, payment to the trustee in bankruptcy of a than a plea of not guilty, or a demurrer up-sum of money as a part of the assets of the on the general ground that the indictment bankrupt's estate. Dismissed for want of did not state enough to show an offense. jurisdiction. It was not an assertion of any particular right under the Constitution, or under any treaty, or under an act of Congress, which would be denied to him if the prosecution was sustained. His contention was only that he was not subject to criminal prosecution by reason of anything set forth in the THE CHIEF JUSTICE: This was a sumindictment. The indictment was plainly 'mary proceeding in the district court of the The facts are stated in the opinion. Messrs. Daniel W. Jones, Harry H. My ers, and U. S. Bratton for appellants. Messrs. Robert E. Wiley and George B. Pugh for appellee. authority levying the tax, and shall be levied and collected under general laws," which is earried out in Ga. Laws 1898, No. 150, §§ 1, 2, authorizing a tax on all the taxable property of the state, and 16, which requires taxpayers to return the number of shares of stock in foreign corporations which they own. United States for the eastern district of Arkansas, in bankruptcy, requiring the payment to the trustee in bankruptcy of the sum of $2,000 as part of the assets of the bankrupt's estate. In return to a rule, one of the respondents alleged that he had paid the money over to the other, and denied the jurisdiction of the court. The other, Mrs. Schweer, denied that she had or ever had had any money belonging or due to the estate, and denied jurisdiction. The matter Argued October 25, 1904. Decided November was heard before a referee, who made findings of fact and conclusions of law, and or [No. 20.] 14, 1904. dered the return of the money. It was then ON WRIT of Certiorari to the United carried to the district court and there heard 293. If the court erred in retaining jurisdiction on the merits, the remedy was by petition to the circuit court of appeals, under 246 of the bankruptcy law [30 Stat. at L. 553, chap. 541, U. S. Comp. Stat. 1901, p. 8432]. Пolden v. Stratton, 191 U. S. 115, 48 L. ed. 116, 24 Sup. Ct. Rep. 45. Appeal dismissed. (195 U. S. 219) States Circuit Court of Appeals for the Fifth Circuit to review a decree which af firmed a decree of the Circuit Court for the Northern District of Georgia enjoining the comptroller general of that state from collecting a tax on shares of stock in a foreign corporation. Reversed. See same case below, 54 C. C. A. 672, 117 The facts are stated in the opinion. Messrs. Joseph B. Cumming, Alexander C. King, Bryan Cumming, and King, Spalding, & Little for respondents. Mr. Justice Holmes delivered the opinion of the court: This case comes here on certiorari to the circuit court of appeals, that court having affirmed, per curiam, a decree of the circuit court enjoining the comptroller general of Georgia from collecting a tax for the year 1900. 116 Fed. 669, 54 C. C. A. 672, 117 Fed. 1007. In view of the conclusion to which we have been driven, it is enough to say that the question presented is whether shares of stock in the Western Railway of Alabama, an Alabama corporation, held by the Georgia Railroad & Banking Company, a Georgia corporation, are taxable as property of the latter, by the state of Georgia, under its Constitution and statutes. The defendants in error, the plaintiffs below, are lessees of the Georgia WILLIAM A. WRIGHT, Comptroller Gen- corporation, and are bound to reimburse the eral, Petitioner, v. LOUISVILLE & NASHVILLE RAILROAD pany. latter for the tax, if it has to be paid. Taking into account the decision in Kidd v. Ala bama, 188 U. S. 730, 47 L. ed. 669, 23 Sup. Ct. Rep. 401 the power of the state to tax the shares is not denied, so far as the Constitution of the United States is concerned, but Taxation of shares of stock in foreign cor- it is argued that the state has not attempted poration. to use that power by its present Constitution and laws. Shares of stock in a foreign corporation, held The Constitution of Georgia provides that by a domestic corporation, are taxable as the "all taxation shall be uniform upon the same property of the latter, under the mandate of class of subjects, and ad valorem on all the Georgia Constitution that "all taxation shall be uniform upon the same class of sub-property subject to be taxed within the terjects, and ad valorem on all property subject ritorial limits of the authority levying the to be taxed within the territorial limits of the tax, and shall be levied and collected under *221 general laws." Code of 1895, § 5883. The words "within the territorial limits" plainly qualify "subject to be taxed." The Constitution further makes void all laws exempt ing property from taxation, other than the property therein enumerated, which does not include this stock. § 5886. Following these requirements the general tax act for 1899 and 1900, Laws of 1898, No. 150, §§ 1, 2, p. 22, authorizes a tax on all of the taxable property of the state. which the property is taxed within the state, and it hardly would be contended that this wise moderation is unconstitutional. It even has been thought that a similar constitution forbade taxation of both capital and stock. People ex rel. Burke v. Badlam, 57 Cal. 594, 601. But, from the point of view of the taxpayer, it does not matter whether all of his double taxation is done in one state or half in one and half in another. He suffers the same injustice. And, as manifestly the clearest right to tax belongs to the state where the railroad has its tracks, every principle of justice and patriotism would require the same abstinence from taxing stocks of the railroads of neighboring states that is practised with regard to those of the taxing state in this case Georgia-itself. The natural inference from the foregoing language is that the comptroller general was bound to collect this tax. It is true that it was said, in a case decided before the date of the present Constitution, that stock in railroads outside the state was not taxable in Georgia, the reason offered being that such stock is really but so many shares of the The difficulty with this argument is that railroad's property, and that that property the Georgia Constitution requires the taxais real estate, for the most part at least, and tion of all property subject to be taxed in taxable by the state in which the road lies. Georgia. And while it may be that the conWright v. Southwestern R. Co. 64 Ga. 783, stitutional requirement is sufficiently com799. This reason is shown by later decisions plied with when the land and chattels which to be an insufficient ground for a claim of give value to the stock pay a tax, without anconstitutional right, and the language of the other tax on the stock, there is much more case probably does not represent adequately difficulty in saying that the words are satisthe present opinion of the supreme court, al-fied if stock is left untaxed when the land though the passage is cited in the later of and chattels cannot be reached. Probably the the two following cases: Georgia State Constitution does not go further than to reBldg. & L. Asso. v. Savannah, 109 Ga. 63, 69, quire one tax on all attainable sources of 35 S. E. 67; People's Nat. Bank v. Cleveland, | value, even if it permits more. People ex 117 Ga. 908, 913, 915, 44 S. E. 20. rel. Burke v. Badlam, 57 Cal. 594, 601. But If we look to the construction adopted by it certainly seems intended to tax once, at the legislature, there is no doubt as to that. least, all property which can be come at in The Code, after defining personalty as prop- any way. San Francisco v. Fry, 63 Cal. 470. erty movable in its nature, continues: A tax in another state is no tax for the pur"Stocks representing shares in an incor- poses of the state of Georgia. Kidd v. Alaporated company holding lands," or a fran-bama, 188 U. S. 730, 732, 47 L. ed. 669, 672, chise in or over lands, are personalty." § 3070. The act of 1884-1885, touching returns of property for taxation, No. 457, § 2, p. 30, enacted in terms "that personal property shall be construed, for purposes of taxation, to include all stocks and securities, whether in corporations within this state or in other states, owned by citizens of this state, unless exempt," etc. It is argued on one side and denied on the other that this section was repealed by the Code; but whether it was or not, it equally may be invoked for the purpose of interpretation, at least. We do not understand and cannot believe that the supreme court of the state would deny the power of the legislature under the present Constitution to tax stock. 23 Sup. Ct. Rep. 401; Dwight v. Boston, 12 Allen, 316; Seward v. Rising Sun, 79 Ind. 351; Dyer v. Osborne, 11 R. I. 321, 23 Am. Rep. 460; MeKeen v. Northampton, 49 Pa. 519, 88 Am. Dee. 515. Putting the case at the lowest, the abovecited section of the Constitution was adopted in the interest of the state as a tax-collector, and authorizes, if it does not require, a tax on the stock. In pursuance of the Constitution, the law of 1898, under which this tax is demanded, contains the following: "In addition to the questions now propounded to taxpayers by the tax-receivers, questions shall be framed by the comptroller general to reach all property upon which a tax is imposed by this act, and especially the following questions: Thirtieth-How many shares of stock did you own on the day fixed for the return of property for taxation issued by corporations located without this state! The argument against the tax is that the Constitution of Georgia is satisfied if all the lands and goods in the state are taxed once, and that the appearance of the same capital in two forms, technically distinct, ought not | Thirty-first-What was the gross nominal to be laid hold of as an excuse for two taxes. It is admitted that no such double taxation is enforced with regard to corporations of 25 S. C.-2. value thereof? Thirty-second-What was the fair market value thereof ?" Laws of 1898, No. 150, § 16, p. 36. This plainly con 2 |