Latest Important Cases the United States he was not a resident of this country. He had been abroad practically all his life, and maintained a household, claimed a
residence there, had paid income taxes in Eng land, never claimed the right to vote in the United States, and appears to have had no intention of remaining here when he arrived in New York in October, 1909.
"We do not overlook the importance and necessity for customs officers to search for ex ternal facts by which they may gather the intent of those who claim to be non-residents, entitled to exemption, for it is only by extreme vigilance that fraud may be prevented. On the other hand, a witness is presumably truthful, and if, on the uncontradicted external facts, themselves not irreconcilable or incompatible with strict honesty of conduct, the only deduction
which is inconsistent with such presumption is in favor of the person arriving, it becomes the duty of the courts to sustain his statement,
rather than to discredit it." Due Process of Law. No Federal Question Involved in Municipal Ordinance without Force of Sovereign State Law—Rate and Franchise Cases Must be Tried in State Courts. U. S. An important decision was rendered Feb. 6 by the United States Court of Appeals for the ninth circuit, at San Francisco, the effect of which was to make it impossible for public senn'ce corporations to seek relief from municipal ordinances relating to rates and franchises by appealing to the federal courts. Seattle Electric Co. v. Seattle, Kenton 6:‘ Southern Ry. Ca., San Francisco Recorder, Feb. 14.
The appellee took its street railway franchise under a declaration that the franchise should "not be deemed exclusive" and under a reser vation by the city of Seattle of the right to grant a similar franchise to any other corpora tion. The city subsequently granted a second franchise to the appellant corporation, providing by ordinance that the original holder be entitled to compensation for any damages suffered. The appellee in this action, complainant in the court below, thereupon attached the second franchise as depriving it of its property "with out due process of law," and the United States
Circuit Court for the Western District of Wash ington issued an injunction restraining the second company from constructing its road, from which injunction the second company appealed. The Court of Appeals decided that the Circuit Court exceeded its jurisdiction in issuing the injunction, basing its holding on two grounds. First, to quote the opinion, “manifestly the
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ordinance is not in conflict with the Constitution of the United States. Instead of taking com plainant's property without due process of law, it expressly provides that it shall not be so taken. There is no right claimed under it by the defend ant contravening any rights secured to the com plainant under the Constitution of the United States. This proposition requires no discussion. It appears plainly and distinctly upon the face of the ordinances." Secondly,
"there is a further and, as we
believe, a conclusive objection to the claim of right on the part of the complainant to invoke the jurisdiction of the circuit court on constitu tional grounds. . . . If it should be conceded that in some view of the ordinance and defend ant's action under color of its provisions there would be a taking of complainant's property without due process of law, still it would not follow that the circuit court had jurisdiction of the case unless the ordinance in that aspect would be the supreme law of the state. The supreme law of the state is the constitution of the state; and that document provides in Article 1, Section 3, as does the Fourteenth Amendment to the Constitution of the United States, that: ‘No persons shall be deprived of life, liberty or property without due process of law.’ "Under this provision of the state constitution the ordinance would be as invalid as under the federal Constitution. . "This was substantially the question before the Supreme Court of the United States in Ham ilton Gas Light Co. v. Hamilton City, 146 U. S. 258, where the court said: — “ ‘The jurisdiction of that court [Circuit Court of the United States] can be sustained only upon the theory that the suit is one arising under the Constitution of the United States. But the suit would not be of that character, if regarded as one in which the plaintiff sought protection against the violation of the alleged contract by an ordinance to which the state has not, in any form, given or attempted to give the force of law. A municipal ordinance, not passed under supposed legislative authority, cannot be re garded as a law of the state within the meaning of the constitutional prohibition against state laws impairing the obligations of contracts.’ “See also Barney v. City of New York, 193 U. S. 430."
Judge W. W. Morrow wrote the opinion, with which Judges W. B. Gilbert and Erskine M. Ross concurred.
