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1. Taking must be for public purposes.

It is fundamental in American jurisprudence that private property can-
not be taken by the Government, National or state, except for pur-
poses which are of a public character, although such taking be ac-
companied by compensation to the owner. Traction Company v.
Mining Company, 239.

2. State laws governing exercise, jurisdiction of Federal court not to be ex-
cluded by.

It is for the State, primarily and exclusively, to declare for what local pub-
lic purposes private property, within its limits, may be taken upon
compensation to the owner, as well as to prescribe a mode in which it
may be condemned and taken. But the State may not prescribe any
mode of taking private property for a public purpose and of ascertain-
ing the compensation to be made therefor, which would exclude from
the jurisdiction of a Circuit Court of the United States a condemnation
proceeding which in its essential features is a suit involving a con-
troversy between citizens of different States. Ib.

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1. Interstate rendition-Right to a hearing-Sufficiency of Governor's warrant.

Proceedings in interstate rendition are summary; strict common law evi-
dence is not necessary, and the person demanded has no constitutional
right to a hearing. The governor's warrant for removal is sufficient
until the presumption of its legality is overthrown by contrary proof
in a legal proceeding to review his action. Munsey v. Clough, 364.

2. Presumption, on habeas corpus, as to validity of indictment.
The indictment found in the demanding State will not be presumed to be
void on habeas corpus proceedings in the State on which the demand is
made if it substantially charges an offense for which the person de-
manded may be returned for trial. Ib.

3. Discharge, on habeas corpus, where demand of other State is made on ground
of constructive presence.

Where there is no doubt that the person demanded was not in the demand-
ing State when the crime was committed and the demand is made on
the ground of constructive presence only he will be discharged on
habeas corpus, but he will not be discharged when there is merely
contradictory evidence as to his presence or absence, for habeas corpus
is not the proper proceeding to try the question of alibi or any ques-
tion as to the guilt or innocence of the accused. Ib.


1. Not involved in construction by courts of one State of statute of another,
where no denial of validity—Exclusive jurisdiction of state court as to

The mere construction by a state court of a statute of another State and its
operation elsewhere, without questioning its validity, does not nec-
essarily involve a Federal question, or deny to the statute the full
faith and credit demanded by § 709, Rev. Stat., in order to give this
court jurisdiction to review. The statutes of New York and Pennsyl-
vania prohibit foreign corporations from doing business in those States
respectively unless certain specified conditions are complied with. In
an action in New Jersey the state court held that contracts made in
New York and Pennsylvania by a corporation which had not complied
with the statutes of either State were not ipso facto void and might be
enforced in New Jersey. On writ of error held, that the writ must be
dismissed as the validity of the New York and Pennsylvania statutes
was not denied but the case turned only upon their construction and
the effect to be given them in another State. Whether, aside from a
Federal question, the courts of one State should have sustained the
action upon principles of comity between the States is a matter within
the exclusive jurisdiction of the state court. Allen v. Allegheny Co.,

2. Question of validity of chattel mortgage not Federal.

Whether, and to what extent, a chattel mortgage, which includes after

acquired property. is valid, is a local and not a Federal question, and
in such a case this court will follow the decisions of the state court.
Thompson v. Fairbanks, 516.

3. State and not Federal-Validity of state statute under state constitution.
Whether or not a state statute violates the state constitution in not stating
distinctly the tax and the object to which it is to be applied is a local
and not a Federal question. Hodge v. Muscatine County, 276.

4. Setting up of Federal question in state court.
Where certain facts from which a Federal question might arise were argued
in the state court, but their Federal character was not indicated, they
cannot be made the basis of a writ of error. Where a petition to trans-
fer the case to the Supreme Court of the State, which contains a mere
suggestion of the violation of a Federal right without any reference
to the Constitution of the United States, is denied without opinion,
this court may infer that the petition was denied because the con-
stitutional point was not made in the courts below, and if it was con-
sidered, the burden to show it is on the plaintiff in error. It is too
late to set up a Federal question for the first time in the petition for
writ of error to this court. Because plaintiff in error relied solely for
title upon a decree of foreclosure and sale in a Federal court it does not
necessarily follow that a Federal question was set up and decided
adversely, no statute, state or Federal, or authority thereunder, being
called in question. Chicago, Indianapolis &c. Ry. Co. v. McGuire, 128.

5. It is too late to raise a Federal question by petition for rehearing in the
Supreme Court of a State after that court has pronounced its final
decision unless it appears that the court entertained the petition and
disposed of the question. The certificate of the presiding judge of the
Supreme Court of the State, made after the decision, to the effect that
a Federal question was considered and decided adversely to plaintiff
in error, cannot in itself confer jurisdiction on this court; and on the
face of this record and from the opinions the reasonable inference is
that the application for rehearing may have been denied in the mere
exercise of discretion, or the alleged constitutional question was not
passed on in terms because not suggested until too late.
Fullerton v.
Texas, 192.






See TAXATION, 6, 10.





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1. Instruction on failure to agree; impropriety of inquiry as to proportion of

When a jury is brought before the court because unable to agree, it is not
material for the court in order to instruct it as to its duty and the pro-
priety of agreeing to understand the proportion of division of opinion,
and the proper administration of the law does not require or permit
such a question on the part of the presiding judge. Burton v. United

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2. Rights of defendant as to statement of prayers granted.
Certain of defendant's requests to charge which were allowed were referred
to as mere abstract propositions of law and not otherwise specifically
charged; after having been out thirty-eight hours the jurors returned
and were instructed by the court in relation to their duty as jurors,
and the foreman having stated in answer to questions of the court
that they stood eleven to one, the court charged that it was their duty
to agree if possible. Counsel then asked the court to instruct that
defendant's requests to charge which had been allowed were as much
a part of the charge as that which emanated from the court. This
was refused. Held error, and, under the circumstances of this case,
it was a matter of right, and not of discretion, that the jury should be
charged as to the character of the requests. Ib.

See WILLS, 3.


Construction of policy-Contract of insurance a personal one.

A policy of insurance provided that it should be void if the interest of the
insured was other than the unconditional and sole ownership or if the
property were encumbered by a chattel mortgage. It was in fact
subject to certain trust deeds which the insured claimed after loss
were different instruments in law. Held, that a deed of trust and a
chattel mortgage with power of sale are practically one and the same
instruments as understood in the District of Columbia. The rule that
in case of attempted forfeiture if the policy be fairly susceptible of
two constructions the one will be adopted which is more favorable to
the insured was inapplicable to this case. The contract of an insurance
company is a personal one with the assured and it is not bound to
accept any other person to whom the latter may transfer the property.
Hunt v. Springfield F. & M. Ins. Co., 47.




1. Freedom of contract concerning.

Bowman v. Chicago, 125 U. S. 465, Leisy v. Hardin, 135 U. S. 100, Rhodes
v. Iowa, 170 U. S. 412, Vance v. Vandercook Co. No. 1, 170 U. S. 438,
rest on the broad principle of the freedom of commerce between the
States, or the right of citizens of one State to freely contract to receive
and send merchandise from and to another State, and on the want of
power of one State to destroy contracts concerning interstate com-
merce valid in the States where made. The right of the parties thereto
to make a contract, valid in the State where made, for the sale and
purchase of merchandise and in so doing to fix the time when, and
conditions on which, completed title shall pass is beyond question.
American Express Co. v. Iowa, 133.

2. Original package; term defined.

The term original package is not defined by statute and while it may be
impossible to judicially determine its size or shape, under the principle
upon which its exemption while an article of interstate commerce is
founded, the term does not include packages which cannot be com-
mercially transported from one State to another. Cook v. Marshall
County, 261.

3. Original package; cigarette boxes held not to be.
This court adheres to its decision in Austin v. Tennessee, 179 U. S. 343, that
small pasteboard boxes each containing ten cigarettes, and sealed and
stamped with the revenue stamp, whether shipped in a basket or loosely,
not boxed, baled or attached together, and not separately or otherwise
addressed but for which the express company has given a receipt and
agreement to deliver them to a person named therein in another State,
are not original packages and are not protected under the commerce

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