It was contended on behalf of defendant, before Judge PARKER, holding the circuit court, that the last clause of this section, to-wit, "so far as may be necessary to carry out the provisions of this act," operated to limit the jurisdiction conferred to such controversies as might arise between the nations or inhabitants and the company, in respect of the construction of the railroad, as pertaining to the right of way, damages for land improvements or occupancy rights thereby injured or disturbed, etc.

The circuit court held otherwise, and that the courts named in the section were properly given jurisdiction over the suit, because, as there was no remedy for a tort such as that in question at the place where the same was committed, there was no remedy anywhere, until given by the law under consideration, and that this constituted a right or privilege thereunder; and upon the further ground that, as the act conferred upon the corporation the right to build and run its road through the Indian country, and to exercise the ordinary powers incident thereto, this rendered the suit one arising under the laws of the United States. 40 Fed. Rep. 273.

That Briscoe was at the time mentioned an inhabitant of the Chickasaw Nation, where the property destroyed was, must be assumed. The answer did not specifically put this fact in issue, but denied any liability generally, and defendant requested the court to instruct the jury that Briscoe was not an inhabitant, which the court refused to do, as there was evidence tending to show that he was. This left the question as one of fact to the jury, and it was determined, in effect, in Briscoe's favor by their verdict.

As the defendant acquired all its rights in the matter of the construction and operation of its road within the Indian Territory under and by virtue of a law of the United States, enacted by congress in the exercise of its power over the territories, controversies arising by reason of the exercise of its powers therein were necessarily controversies arising under the laws of the United States, and, this being so, it was competent for congress to give the enumerated courts jurisdiction over not only controversies immediately relating to or growing out of the construction of the road, but over all controversies between the nations, and tribes or the inhabitants thereof, through whose territory the railroad might be constructed, and the company.

And as the civil jurisdiction of these courts was extended within the limits of the territory, without distinction as to the citizenship of the parties, "so far as may be necessary to carry out the provis.

ions of this act," and that might embrace all controversies arising between the inhabitants or the nations and tribes and the railway company, we do not regard the addition of these words as intended to operate as a limitation of the controversies to those growing out of the construction of the road merely, since the section in terms applies to "all controversies."

It is true that, apart from jurisdiction over the subject-matter, a citizen of a territory cannot sue a citizen of a state in the courts of the United States, nor an Indian tribe or nation sue a state or its citizens, but the judicial power extends to all cases, in law and equity, arising under the laws of the United States, and this case falls within that category, and therefore the jurisdiction in question could be conferred, as we hold that it was.

The decision of the circuit court was right, and its judgment is affirmed.

(144 U. S. 24) UNITED STATES V. WILSON.

(March 14, 1892.)

SALARY OF POSTMASTER.

On the raising of a post-office to the third class the postmaster is entitled to the increased salary from the first day of the quarter next following the order of the postmaster general assigning the office to such class, and fixing his salary, (Act March 3, 1883, c. 142; 22 St. pp. 600, 602,) and his rights cannot be affected by a subsequent order of the sixth auditor, or by the time of the issue of his commission from the president. 26 Ct. Cl. 186, affirmed.

Appeal from the court of claims.

Action by William Wilson against the United States to recover an alleged balance of salary as a postmaster. Defendant appeals from a judgment for plaintiff. Affirmed.

Asst. Atty. Gen. Parker, for the United States. Harvey Spalding, for appellee.

Mr. Justice LAMAR delivered the opinion of the court.

This was an action in the court of claims by a late postmaster of Chadron, Neb., to recover an alleged balance of salary claimed to be due.

The material facts are these: The claimant was a fourth-class postmaster, duly appointed and qualified, at Chadron, Neb., from July 1, 1885, to January 25, 1887. When he was first appointed, the salary of the office was $1,000 a year; and it continued at that figure until October 1, 1886, when, by an order of the postmaster general, issued a few days previously, the office was assigned to the third class, and the salary was increased to $1,600 a year. Although the office was thus advanced in rank, and the salary attached to it increased, and the claimant continued to discharge the duties of it, he was not commissioned by the president a third-class postmaster until January 25, 1887; and, under an order of the sixth auditor, dated November 16, 1886, he was not permitted to enjoy the benefits of the increased salary until he was commissioned a thirdclass postmaster, but continued to draw a salary from October 1, 1886, to January

25, 1887, at the rate of only $1,000 a year. Insisting that his salary for the period last mentioned should have been at the rate of $1,600 a year, under the order of the postmaster general, instead of at the rate he was paid, the claimant brought his action in the court of claims to recover such alleged balance. That court sustained his claim, and rendered judgment in his favor for $190, that being the difference between the amount of his salary for the period mentioned at $1,000 a year and at $1,600 a year. 26 Ct. Cl. 186. From that judgment the United States appealed.

To understand the precise nature of the question involved in this case, a reference to the act of March 3, 1883, c. 142, (22 St. pp. 600, 602,) relating to the salaries of postmasters, is necessary. Section 1 of that act reads thus:

"That the respective compensation of postmasters of the first, second, and third classes shall be annual salaries, assigned in even hundreds of dollars, and payable in quarterly payments, to be ascertained and fixed by the postmaster general from their respective quarterly returns to the auditor of the treasury for the post-office department, or copies or duplicates thereof, to be forwarded to the first assistant postmaster general, for four quarters immediately preceding the adjustment, at the following rates, namely.

*Offices whose gross receipts are less than $1,900 per annum are assigned to the fourth class; and by section 2 of the act it is provided that the salary of postmasters of that class shall be determined by a graduated scale of commissions upon postages, etc., and the box-rents collected; the same to be ascertained and allowed by the auditor of the treasury for the post-office department in the settlement of the accounts of such postmasters upon their sworn quarterly returns. The second section then provides as follows:

"That when the compensation of any postmaster of this class shall reach two hundred and fifty dollars for four consecutive quarters each, exclusive of commissions on money-order business, and when the returns to the auditor for four consecutive quarters shall show him to be entitled to a compensation in excess of two hundred and fifty dollars per quarter, the auditor shall report such fact to the postmaster general, who shall assign the office to its proper class, and fix the salary of the postmaster as provided by section one of this act."

"Sec. 3. That the postmaster general shall make all orders relative to the salaries of postmasters; and any change made In such salaries shall not take effect until the first day of the quarter next following

Reverting again to the facts of the case as found by the court of claims, and applying the statute just referred to, a satisfactory solution of the question involved will be found. The third and fourth findings by the court of claims are that for the four quarters between July 1, 1885, and July 1, 1886, the claimant made returns from his office to the auditor showing gross receipts amounting to $4.912.99, of which $338.50 was from box-rent; and that the auditor thereupon reported this fact to the postmaster general, with a statement showing that the claimant, upon these returns, would be entitled to commissions and box-rents amounting to $2,150.85 for the four quarters, being at the rate of $537.71 per quarter.

Here, then, wus a case in which the returns made by the postmaster to the auditor showed the postmaster "to be entitled to a compensation in excess of two hundred and fifty dollars per quarter. What, then, was the duty of the auditor? To do precisely as he did do, viz., "report such fact to the postmaster general." The duty of the auditor in the premises thereupon ceased; it was completed; and the statute then cast a duty upon the postmaster general, viz., to "assign the office to its proper class, and fix the salary of the postmaster, as provided by section one of the act. The fifth finding by the court of claims shows that herein the postmaster general performed the duty enjoined upon him by the statute, for on the 27th of September, 1886, an order was issued from his department as follows:

"Ordered, that the post-office at Chadron, Nebraska, be assigned to the third class, and the salary of the postmaster fixed at $1,600 a year, from October 1, 1886. A. E. STEVENSON, First Assis't P. M. General.

Thus

All this was in exact conformity to the letter of the statute of 1883. The gross receipts of the office for the four quarters ending July, 1886, were more than $4,200 and less than $5,000; consequently the statute fixed the salary of the postmaster at $1,600 a year. By section 3 of the act the change made in the salary could not "take effect until the first day of the quarter next following the order." The next quarter commenced October 1, 1886. it was that the order of the first assistant postmaster general designated October 1, 1886, as the day when it should go into operation. The statute was then fulfilled. Its terms had been carried out. The office had been properly changed to one of the third class, and the salary of the postmaster had been changed to nieet the mandate of the law. Whoever was then performing the duties of postmaster at that office became entitled to the salary thus fixed. It matters not that the president did not commission a third-class postmaster at that office until some months thereafter. The president had nothing to do with the salary attached to the office. That had been fixed absolutely by the postmaster general, under the express directions of a law of congress. Neither could the salary of the

postmaster be affected by any subsequent order of the sixth auditor, as was attempted to be done in this case; for, as already stated, his duty and authority in the premises ceased when he made his report of the business transactions of the office to the postmaster general. The whole theory of the act of 1883 is that every postmaster shall receive a salary dependent upon and regulated by the amount of business done at his office. The intent of the statute in this respect appears so plain upon a careful reading of it that it is difficult to elucidate it by argument or illustration. The mere statement of its terms is the best argument in favor of the conclusion we have reached. The judgment of the court of was correct, and it is affirmed.

(144 U. S. 41)

WILSON V. SELIGMAN.

(March 14, 1892.)

claims

JUDGMENT AGAINST CORPORATION-LIABILITY OF

STOCKHOLDERS-PERSONAL NOTICE.

Under Rev. St. Mo. 1879, § 736, authorizing execution on a judgment against a corporation to be issued against a stockholder to the amount of the unpaid balance of his stock, upon order of court made "after sufficient notice in writing to the person sought to be charged, " and upon fundamental principles of jurisprudence, an alleged stockholder of a Missouri corporation, not served with process within the state upon the original writ in an action against the corporation in the state court, is entitled to legal notice and trial of the issue whether he is a stockholder, before he can be charged with personal liability as such; and personal service of the notice within the jurisdiction of the court is essential to support an order or judgment ascertaining and establishing such liability, unless he has voluntarily appeared or otherwise waived his right to such service. 36 Fed. Rep. 154, affirmed.

In error to the circuit court of the United States for the eastern district of Missouri.

Action by William C. Wilson against Jesse Seligman upon a judgment. Plaintiff brings error from a judgment for defendant. Affirmed.

*STATEMENT BY MR. JUSTICE GRAY. This was an action brought by Wilson, a citizen of Missouri, against Seligman, a citizen of New York, in the circuit court of the city of St. Louis, and duly removed by the defendant into the circuit court of the United States. The action was upon an order or judgment of the state court under section 736 of the Revised Statutes of Missouri of 1879, (which is copied in the margin,1) by which execution was awarded against the defendant as a stockholder

1If any execution shall have been issued against any corporation, and there cannot be found any property or effects whereon to levy the same, then such execution may be issued against any of the stockholders to the extent of the amount of the unpaid balance of such stock by him or her owned: provided, always, that no execution shall issue against any stockholder except upon an order of the court in which the action, suit, or other proceedings shall have been brought or instituted, made upon motion in open court, after sufficient notice in writing to the persons sought to be charged; and, upon such motion, such court may order execution to issue accordingly: and pro vided, further, that no stockholder shall be individually liable in any amount over and above the amount of stock owned.

in the Memphis, Carthage & North western Railroad Company, a corporation of Missouri, upon a judgment recovered by the plaintiff against the corporation. The defendant answered, denying that he was a stockholder, and averring that the order or judgment against him was void for want of jurisdiction of his person. The present case was submitted, a jury being duly waived in writing, to the court, which found the following facts:

The plaintiff's judgment against the corporation was recovered in the state court on April 2, 1883, for $72,799.38 and interest. Upon that judgment, executions against the corporation were issued to the sheriffs of the several counties in Missouri through which it had built its road, and were returned unsatisfied; and the corporation was then, and has been ever since, insolvent. On July 9, 1883, the plaintiff filed a motion in the same court for an order that execution for the amount of that judgment issue against the defendant as the alleged holder of stock in the corporation on which more than the amount of the judgment against the corporation was still unpaid. Notice of this motion was served on him personally at his domicile in New York, and was posted in the clerk's office of the state court. No notice' was served on him within the state of Missouri, and he never was a citizen or a resident of this state. At the hearing of the motion, on December 3, 1883, the defendant did not appear; and the court entered an order finding that he was a stockholder as alleged, and was liable to execution for the amount of the judgment against the corporation, and granting the motion and ordering execution to issue against him accordingly. This was the order or judgment upon which the present action was brought.

Upon these facts the court below gave judgment for the defendant. 36 Fed. Rep. 154. The plaintiff sued out this writ of

error.

James S. Botsford, for plaintiff in error. James O. Broadhead and John O'Day, for defendant in error.

Mr. Justice GRAY, after stating the case as above, delivered the opinion of the court.

The statute of Missouri under which these proceedings were had authorizes execution upon a judgment against a corporation to be ordered against any of its stockholders only to the extent of the unpaid balance of their stock, and "upon motion in open court, after sufficient notice in writing to the person sought to be charged. Gen. St. Mo. 1865, c. 62, § 11; Rev. St. 1879, § 736; Rev. St. 1889, § 2517. Each person sought to be charged as a stockholder is thus given the right, before execution can be awarded against him on a judgment against the corporation, to written notice and judicial investigation of the questions whether he is a stockholder, and, if he is, how much remains unpaid on his stock. Although the statute does not define the course of proceeding or the kind of notice otherwise than by directing that the proceeding shall be summary, upon motion and "after -uffi

other-as when the two things provided are necessary parts of one system-that the whole act will fall with the invalidity of one clause. When there is no such connection and dependency, the act will stand, though different parts of it are rejected." It cannot be said to be evident that the provisions imposing duties on imported articles are so connected with or dependent upon those giving bounties upon the production of sugars in this country that the former would not have been adopted except in connection with the latter. Undoubtedly, the object of the act was not only to raise revenue for the support of the government, but to so exert the power of laying and collecting taxes and duties as to encourage domestic manufactures and industries of different kinds, upon the success of which, the promoters of the act claimed, materially depended the national prosperity and the national safety. But it cannot be assumed, nor can it be made to appear from the act, that the provisions imposing du ties on imported articles would not have been adopted except in connection with the clause giving bounties on the production of sugar in this country. These different parts of the act, in respect to their operation, have no legal connection whatever with each other. They are entirely separable in their nature, and, in law, are wholly independent of each other. One relates to the imposition of duties upon imported articles; the other, to the appropriation of money from the treasury for bounties on articles produced in this country. While, in a general sense, both may be said to be parts of a system, neither the words nor the general scope of the act justifies the belief that congress intended they should operate as a whole, and not separately for the purpose of accomplishing the objects for which they were respectively designed. Unless it be impossible to avoid it, a general revenue statute should never be declared inoperative in all its parts because a particular part relating to a distinct subject may be invalid. A different rule might be disastrous to the financial operations of the government, and produce the utmost confusion in the business of the entire country.

legislative power can be delegated by congress to any other department of the government, executive or judicial, is an axiom in constitutional law, and is universally recognized as a principle essential to the integrity and maintenance of the system of government ordained by the constitution. The legislative power must remain in the organ where it is lodged by that instrument. We think that the section in question does delegate legislative power to the executive department, and also commits to that department matters belonging to the treaty-making power, in violation of paragraph 2 of the second section of article 2 of the constitution. It reads thus:

"Sec. 3. That with a view to secure reciprocal trade with countries producing the following articles, and for this purpose, on and after the first day of January, eighteen hundred and ninetytwo, whenever and so often as the presi-* dent shall be satisfied that the government of any country producing and exporting sugars, molasses, coffee, tea, and hides, raw and uncured, or any of such articles, imposes duties or other exactions upon the agricultural or other products of the United States, which in view of the free introduction of such sugar, molasses. coffee, tea, and hides into the United States he may deem to be reciprocally unequal and unreasonable, he shall have the power, and it shall be his duty, to suspend, by prolamation to that effect, the provisions of this act relating to the free introduction of such sugar, molasses, coffee, tea, and hides, the production of such country, for such time as he shall deem just, and in such case, and during such suspension, duties shall be levied, collected, and paid upon sugar, molasses. coffee, tea, and hides, the product of or exported from such designated country, as follows, namely." 26 St. p. 612.

We do not think that legislation of this character is sustained by any decision of this court, or by precedents in congressional legislation numerous enough to be properly considered as the practice of the government. One of the instances referred to, as legislation analogous to this section, is that embodied in the acts of congress of 1809 and 1810, known as the

Mr. Justice LAMAR, with whom concurred Mr. Chief Justice FULLER, dissenting.

The chief justice and myself concur in the judgment just announced. But the proposition maintained in the opinion, that the third section, known as the "Reciprocity Provision," is valid and constitutional legislation, does not command our assent, and we desire to state very briefly the ground of our dissent from it. We think that this particular provision is repugnant to the first section of the first article of the constitution of the United States, which provides that "all legislative powers herein granted shall be vested in a congress of the United States, which shall consist of a senate and house of representatives." That no part of this

"9

this court to be valid in the case of The Aurora, 7 Cranch, 383. The act of March 1, 1809, forbidding any importation after May 20, 1809, from Great Britain or France, provided that "the president of the United States be, and he hereby is, authorized, in case either France or Great Britain shall so revoke or modify her edicts as that they shall cease to violate the neutral commerce of the United States, to declare the same by proclamation.' after which, the trade suspended by that act and the act laying an embargo could be renewed with the nation so doing. 2 St. p. 528, § 11. That act having expired, congress on the 1st of May, 1810, passed an act (2 St. p. 605, § 4) which enacted "that in case either Great Britain or France shall, before the 3d day of March next, so revoke or modify her edicts as that they shall cease to violate the

99

neutral commerce of the United States, which fact the president of the United States shall declare by proclamation, and if the other nation shall not, within three months thereafter, so revoke or modify her edicts in like manner,' the restrictions of the embargo act "shall, from and after the expiration of three months from the date of the proclamation aforesaid, be revived, and have full force and effect, so far as relates to ** the nation thus refusing or neglecting to modify her edicts in the manner aforesaid. And the restrictions imposed by this act shall, from the date of such proclamation, cease and be discontinued in relation to the nation revoking or modifying her decrees in the manner aforesaid."

These enactments, in our opinion, transferred no legislative power to the president. The legislation was purely contingent. It provided for an ascertainment by the president of an event in the future, an event defined in the act and directed to be evidenced by his proclamation. It also prescribed the consequences which were to follow upon that procla mation. Such proclamation was wholly in the nature of an executive act, a prescribed mode of ascertainment, which involved no exercise by the president of what belonged to the law-making power. The supreme will of congress would have been enforced whether the event provided for had or had not happened, either in the continuance of the restrictions on the one hand, or, on the other, in their suspension.

But the purpose and effect of the section now under consideration are radically different. It does not, as was provided in the statutes of 1809 and 1810, intrust the president with the ascertainment of a fact therein defined upon which the law is to go into operation. It goes further than that, and deputes to the president the power to suspend another section in the same act whenever "he may deem " the action of any foreign nation producing and exporting the articles named in that section to be "reciprocally unequal and unreasonable;" and it further deputes to him the power to continue that suspension, and to impose revenue duties on the articles named, "for such time as he may deem just." This certainly extends to the executive the exercise of those discretionary powers which the constitution has vested in the law-making department. It unquestionably vests in the president the power to regulate our commerce with all foreign nations which produce sugar, tea, coffee, molasses, hides, or any of such articles; and to impose revenue duties upon them for a length of time limited solely by his discretion, whenever he deems the revenue system or policy of any nation in which those arti. cles are produced reciprocally unequal and unreasonable in its operation upon the products of this country.

These features of this section are, in our opinion, in palpable violation of the constitution of the United States, and serve to distinguish it from the legislative precedents which are relied upon to sustain it, as the practice of the government.

None of these legislative precedents, save the one above referred to, have, as yet, undergone review by this court or been sustained by its decision. And if there be any congressional legislation which may be construed as delegating to the president the power to suspend any law exempting any importations from duty, or to reimpose revenue duties on them, upon his own judgment as to what constitutes in the revenue policy of other countries a fair and reasonable reciprocity, such legislative precedents cannot avail as authority against a clear and undoubted | principle of the constitution. We say "revenue policy," because the phrase “agricultural or other products of the United States" is comprehensive, and embraces our manufacturing and mining as well as agricultural products, all of which interests are thus intrusted to the discretion of the president, in the adjustment of trade relations with other countries, upon a basis of reciprocity.

While, however, we cannot agree to the proposition that this particular section is valid and constitutional, we do not regard it as such an essential part of the tariff act as to invalidate all its other provisions; and we therefore concur in the judgment of this court affirming the judgments of the court below in the several cases.

(144 U. S. 1)

UNITED STATES V. BALLIN et al.

(February 29, 1892.)

CONGRESS-RULES OF THE HOUSE-COUNTING QUORUM-JOURNAL-CUSTOMS DUTIES.

1. Rule 15 of the house of representatives of the fifty-first congress, providing that the names of members present who do not vote may be entered on the journal and counted in determining the presence of a quorum, does not infringe any constitutional or fundamental right, and is a valid exercise of the power of the house to determine the rules of its proceedings.

2. In the federal house of representatives, when a quorum is present, the votes of a majority of the quorum are sufficient to pass a bill.

3. On a reference to the journal of the federal house of representatives to ascertain whether a duly-authenticated law was passed in the presence of a quorum and by the necessary number of votes, (assuming, but not deciding, that such reference may be made,) the court is bound to assume that the journal speaks the truth, and cannot receive oral evidence to impeach its cor

rectness.

4. Act Cong. May 9, 1890, (26 St. p. 105,) declaring that "the secretary of the treasury be, and he hereby is, authorized and directed to clas sify as woolen cloths all imports of worsted cloths," etc., does not require that the secretary in person shall make the classification, but only that it shall be done in the usual manner by the customs department, of which the secretary is the responsible head.

45 Fed. Rep. 170, reversed.

Appeal from the circuit court of the United States for the southern district of New York.

Petition by Ballin, Joseph & Co. to review the decision of the board of general appraisers affirming the action of the collector of New York in classifying certain imported worsteds as "woolen cloths.' Their decision was reversed in the circuit court, (45 Fed. Rep. 170,) and the United States appeals. Reversed.