tion Congress included not only those sub- stamp of 1 of a cent a pound.” Other witstances which, entering into the composition nesses testified to the exact per cent of palm of oleomargarine, make it suitable for food, oil used in the preparation of the package. and, so to speak, form its body, but also oth. One said that “the article so manufactured ers used only for coloring. After naming some was according to a formula used in the it adds specifically, "and other coloring mat- course of business, with the exception of the ter.” The purpose in so including “coloring palm oil. It is what we call the 'Daisy matter” is obvious. It was to prevent ex- grade,'—the lower grade. It is a substitute cluding from the operation of the statute for butter.” Another testified that “a very anything in its nature oleomargarine by the small proportion of palm oil is necessary addition of a substance not in reality an in. only to produce what is considered a degredient, but serving substantially only the sirable color in oleomargarine. The color of purpose of coloring the product to cause it palm oil is a reddish yellow. Its natural to look like butter. The fact that one of the color is such that it may be used to make ingredients of this compound is palm oil oleomargarine or white substances to look does not show that such oil does anything like butter.” Further, the defendant offered else than color the product composed of quite an amount of testimony, which was other ingredients, and if it does substantially received by the court, and afterwards, on only this, it is rightfully styled an artificial motion, stricken out as irrelevant and imcoloration. Otherwise the proviso prac material. Included in this was that of the tically nullifies the body of the section. For secretary of the manufacturer, who testified "other coloring matter” includes all color- that "before July 1, 1902, we used only the ing matter; at least, all of the nature of Wells-Richardson improved butter color to those named; and hence the addition of any produce an artificial coloration. Since that coloring matter would produce only a natu- date we have used the same article. We have ral, and not an artificial, coloration, and thus used some palm oil. We used that for a relieve the product from the 10-cent tax. It few days only, until the Commissioner of Inwill be noted that the regular tax imposed ternal Revenue ruled that its use would subupon oleomargarine by § 8 is 10 cents a ject the product to the 10-cent tax.” pound, the exception thereto being stated The verdict of a jury is conclusive upon in the proviso, and a party who claims the a question of fact unless plainly against the benefit thereof must make it clear that his evidence. The same weight, as we have said, oleomargarine is within its scope. That ex- must be given to the finding of a court, and ception is "when oleomargarine is free from upon the testimony received without objecartificial coloration that causes it to look tion a finding that this palm oil served sublike butter of any shade of yellow.” Bear- stantially only to color the product cannot ing in mind, also, that one of the purposes be disturbed. Indeed, the fact was made of this legislation was to prevent the sale of certain by the testimony offered by the deoleomargarine as and for butter, it must be fendant, although that testimony was afterheld that when any substance, although wards stricken out by the court as immanamed as a possible ingredient of oleomar- terial. garine, substantially serves only the func- We see no error in the record, and the tion of coloring the mass, and so as to cause judgment is affirmed. the product to "look like butter of any shade of yellow,” it is an artificial colora- The CHIEF JUSTICE, Mr. Justice Harlan, tion.

and Mr. Justice Peckham dissented. Whether the Commissioner of Internal Revenue has all the authority which is in

(195 U. S. 194) terms committed to him by $ 14 need not be

ANDREW J. AIKENS, Plff. in Err., determined. The letter containing his rul

V. ing was admitted in evidence without objec- STATE OF WISCONSIN. (No. 3.) tion. Irrespective of such ruling, and upon the other testimony, the judge who tried the

ALBERT HUEGIN, Piff. in Err., case, and whose decision must be considered as equivalent to the verdict of a jury, could

STATE OF WISCONSIN. (No. 4.) rightfully have found that this package of oleomargarine was artificially colored by the MELVIN A. HOYT, Piff. in Err., small amount of palm oil used in its manufacture. A witness testified that he called STATE OF WISCONSIN. (No. 5.) at the place of business of the defendant, "and found this 10-pound package of oleo- Constitutional law-validity of legislation

lavomargarine, which had been colored with punishing combining to effect malicious palm oil to a very decided shade of yellow, injury. like natural June butter, bearing a tax-paid' Rights under U. S. Const. 14th Amend. are

V.

not infringed by the provisions of Wis. Stat. with unlawfully combining together with the 1898, $ 4466a, for the punishment of com intent of wilfully and maliciously injuring

§ bining for the purpose of wilfully or ma. The Journal Company, a corporation, and liciously injuring another in his business, as applied to a combination of newspaper mana- certain persons named, stockholders and offigers maliciously to injure a rival paper by cers of the company, in their trade and busiagreeing to refuse space to advertisers who ness. It was alleged that the company was should pay the increased rate fixed by such publisher of a newspaper in Milwaukee, and rival, except at a corresponding increase, had notified an increase of about 25 per cent but to permit those to advertise in their papers at the old rate who should refuse to in its charges for advertising, and that pay their rival the new rate, whatever may thereupon the plaintiffs in error, who were be the force of the constitutional objection managers of other newspapers in the if the statute be construed to embrace complace, in pursuance of their combination, bining to effect wilful, as distinguished from and with the intent of wilfully, maliciously, malicious, injury.

and unlawfully injuring The Journal Com[Nos. 3, 4, 5.]

pany and the others named, agreed as fol. lows: If any person should agree to pay the

increased rate to The Journal Company, then Argued and submitted October 21, 22, 1903. he should not be permitted to advertise in

Ordered for reargument May 31, 1904. Re- any of the other three newspapers except argued and submitted October 17, 18, at a corresponding increase of rate; but if 1904. Decided November 7, 1904.

he should refuse to pay the Journal Com

pany the increased rate, then he should be IN N ERROR to the Supreme Court of the allowed to advertise in any of the other

State of Wisconsin to review a judgment three papers at the rate previously charged. affirming convictions in the Municipal Court It was alleged that this conspiracy was carof Milwaukee County, in that State, of vio- ried out, and that much damage to the busilations of a statute prohibiting combining ness of The Journal Company ensued. for the purpose of wilfully or maliciously The defendant Hoyt demurred to this ininjuring another in his business. Affirmed. formation, setting up the 14th Amendment.

See same case below, 113 Wis. 419, 89 N. Aikens and Huegin filed pleas which admitW. 1135.

ted the combination and intent of injuring The facts are stated in the opinion. The Journal Company, and the resulting

Messrs. W. H. Timlin and George D. damage, but alleged that the combination was Van Dyke for plaintiff in error in Nos. 3 entered into in trade competition, and that and 4.

the parties had the right to make it under Messrs. S. S. Gregory, Conrad H. Pop- the 14th Amendment. The state demurred penhusen, and Joseph L. McNab for plain to the pleas. The demurrer of Hoyt was tiff in error in No. 5.

overruled; those of the state were sustained. Messrs. James G. Flanders and Lafay. The defendants were sentenced and the judg. ette M. Sturdevant for defendant in error ment of the trial court was affirmed by the in Nos. 3 and 4.

supreme court of the state on the authority Mr. Lafayette M. Sturdevant for de- of an earlier decision between the same parfendant in error in No. 5.

ties, reported in 110 Wis. 189, 62 L. R. A.

700, 85 N. W. 1046. Mr. Justice Holmes delivered the opinion

The statute, it will be observed, punishes of the court:

combining for the purpose of wilfully or maThese are three writs of error to the su-liciously injuring another in his business. preme court of Wisconsin, brought to set If it should be construed literally, the word aside convictions and sentences of the plain- "wilfully” would embrace all injuries intiffs in error, the defendants below, upon intended to follow from the parties' acts, alformations filed by the district attorney.though they were intended only as the neces113 Wis. 419, 89 N. W. 1135. The ground sary means to ulterior gain for the parties of the writs is that the proceedings violated themselves. Taken in that way the word the rights of the plaintiffs in error under would hit making a new partnership, if it the 14th Amendment of the Constitution of was intended thereby to hurt someone's else the United States. The informations were business by competition. We shall not conbrought under the Wisconsin statutes of sider whether that branch of the statute, so 1898, § 4466a, which impose imprisonment construed, could be sustained, and express or fine on "any two or more persons who no opinion about it. The supreme court of shall combine

for the purpose of Wisconsin has intimated that a narrower inwilfully or maliciously injuring another in terpretation will be adopted, and in the his reputation, trade, business, or profes-present case we have to deal only with the sion, by any means whatever," etc. The other branch, depending on the word "maliplaintiffs in error were severally charged' ciously,” as we shall explain in a moment.

the last-quoted word we must take as in-| [1895], A. C. 587), others may depend upon tended to add something to the word "wil the end for which the act is done. Moran fully," and we can do so only by taking it v. Dunphy, 177 Mass. 485, 487, 52 L. R. A. in its true sense. We interpret “maliciously 115, 83 Am. St. Rep. 289, 59 N. E. 125; injuring” to import doing a harm malevo- Plant v. Woods, 176 Mass. 492, 51 L. R. A. lently, for the sake of the harm as an end in 339, 79 Am. St. Rep. 330, 57 N. E. 1011; itself, and not merely as a means to some Squires v. Wason Mfg. Co. 182 Mass. 137, further end legitimately desired. Otherwise 140, 141, 65 N. E. 32. See cases cited in 62 the phrase would be tautologous, since a L. R. A. 673. It is no sufficient answer to wilful injury is malicious in the sense famil- this line of thought that motives are not iar to declarations and indictments, where, actionable, and that the standards of the indeed, the word means no more than fore- law are external. That is true in determin. seen, or even less than that. A death is ing what a man is bound to foresee, but not caused of malice aforethought if, under the necessarily in determining the extent to circumstances, known to the actor, the prob- which he can justify harm which he has ability of its ensuing from the act done is foreseen. Quinn v. Leathem (1901), A. C. great and manifest according to common ex- 495, 524, 70 L. J. P. C. N. S. 76, 85 L. T. perience. Com. v. Pierce, 138 Mass. 165, N. S. 289, 50 Week. Rep. 139, 65 J. P. 708. 178, 52 Am. Rep. 264; 1 East, P. C. 262. Whether, at common law combination See also Mogul 8. 8. Co. v. McGregor, L. R. would make conduct actionable which would 23 Q. B. Div. 598, 613.

be lawful in a single person, it is unnecessary The informations alleged a combination to consider. Quinn v. Leathem (1901), A. C. for the purpose of wilfully and maliciously 495, 70 L. J. P. C. N. S. 76, 85 L. T. N. S. injuring others, and therefore brought the 289, 50 Week. Rep. 139, 65 J. P. 708. We case within the latter branch of the statute, are aware, too, that a prevailing opinion in if there are two, and if “or” in the act is not England makes motives immaterial, altaken to mean "and.” It is true that the though it is probable that in Allen v. Flood plan is set forth, and some argument was [1898), A. C. 1, 94, 67 L. J. Q. B. N. S. 119, spent on whether that plan might or might | 77 L. T. N. S. 717, 46 Week. Rep. 258, 62 not be an instrument of ultimate gain. But J. P. 595, the jury were instructed, as in while that question may have been open Temperton v. Russell [1893], 1 Q. B. 715, when the state court was discussing the evi- 719, 62 L. J. Q. B. N. S. 412, 4 Reports, 376, dence warranting a commitment, in 110 69 L. T. N. S. 78, 41 Week. Rep. 565, 57 J. Wis. 189, 62 L. R. A. 700, 85 N. W. 1046, P. 676, in such a way that their finding of none such is open here. The malevolent pur. malice meant no more than that the defendpose is alleged, it is admitted by the de- ant had acted with foresight of the harm murrer, it is not sufficiently denied by the which he would inflict, as a means to an pleas, whatever we may conjecture would end. Quinn v. Leathen [1901], A. C. 495, have been done if counsel had had this de- 514. However these things may be, we have cision before them. A purely malevolent act said enough to show that there is no anommay be done even in trade competition, aly in a statute, at least which punishes a

We come, then, to the question whether combination such as is charged here. It has there is any constitutional objection to so been held that even the free use of land by much of the act as applies to this case. It a single owner for purely malevolent purhas been thought by other courts as well as poses may be restrained constitutionally, althe supreme court of Wisconsin that such though the only immediate injury is to a a combination, followed by damage, would neighboring landowner. Rideout v. Knoso, be actionable even at common law. It has 148 Mass. 368, 2 L. R. A. 81, 12 Am. St. Rep. been considered that, prima facie, the inten- 560, 19 N. E. 390. Whether this decision tional infliction of temporal damages is a was right or not, when it comes to the freecause of action, which, as a matter of sub-dom of the individual, malicious mischief is stantive law, whatever may be the form of a familiar and proper subject for legislative pleading, requires a justification if the de- repression. Com. v. Walden, 3 Cush. 558. fendant is to escape. Mogul 8. 8. Co. v. Mc- Still more are combinations for the purpose Gregor, L. R. 23 Q. B. Div. 598, 613, [1892], of inflicting it. It would be impossible to A. C. 25, 61 L. J. Q. B. N. S. 295, 66 L. T. hold that the liberty to combine to inflict N. S. 1, 40 Week. Rep. 337, 7 Asp. Mar. L. such mischief, even upon such intangibles as Cas. 120, 56 J. P. 101. If this is the correct business or reputation, was among the rights mode of approach, it is obvious that justi- which the 14th Amendment was intended to fications may vary in extent, according to preserve. The statute was assumed to be the principle of policy upon which they are constitutional in Arthur v. Oakes, 25 L. R. founded, and that while some for instance, A. 414, 4 Inters. Com. Rep. 744, 11 C. C. A. at common law, those affecting the use of 209, 24 U. S. App. 239, 63 Fed. 310, 325, landare absolute (Bradford V. Pickles' 326.

But if all these general considerations be for which no justification could be offered admitted, it is urged, nevertheless, that the and those which were taken out of the jusmeans intended to be used by this particular tification by the motive with which they combination were simply the abstinence were made. We see no sufficient reason to from making contracts; that a man's right believe that the court will go farther, or so to abstain cannot be infringed on the construe the act in such a way as to raise ground of motives; and further, that it car- questions which we need not go into here. ries with it the right to communicate that Therefore it is unnecessary to consider intent to abstain to others, and to abstain in whether, on a more literal construction, the common with them. It is said that if the portion dealing with malicious intent could statute extends to such a case it must be be separated from that which deals with the unconstitutional. The fallacy of this argu- purpose of merely wilful injury, and saved, ment lies in the assumption that the stat- even if the latter were held to go too far. ute stands no better than if directed against Probably the two phrases will be read tothe pure nonfeasance of singly omitting to gether and the statute made unquestionable contract. The statute is directed against a as a whole. series of acts, and acts of several,

the acts Judgment affirmed. of combining, with intent to do other acts. “The very plot is an act in itself.” Mulcahy

Mr. Justice White, dissenting: v. Queen, L. R. 3 H. L. 306, 317. But an Not being able to concur in the concluact which, in itself, is merely a voluntary sion of the court that the opinion of the muscular contraction, derives all its char- supreme court of Wisconsin has affixed to acter from the consequences which will fol- the statute of that state a much narrower low it under the circumstances in which it meaning than the text of the statute imports, was done. When the acts consist of making and thinking, on the contrary, that not only a combination calculated to cause temporal such text, but the construction of the statdamage, the power to punish such acts, ute adopted by the supreme court of Wiswhen done maliciously, cannot be denied be consin, operates to deprive the citizen of a cause they are to be followed and worked lawful right to contract, protected by the out by conduct which might have been law- 14th Amendment, I dissent. ful if not preceded by the acts. No conduct has such an absolute privilege as to justify

(195 U. S. 165) all possible schemes of which it may be a part. The most innocent and constitution- HUGH STEVENSON, Matilda C. Alloway,

Paul E. Stevenson, et al., Appts. ally protected of acts or omissions may be made a step in a criminal plot, and if it is a step in a plot, neither its innocence nor the WILLIAM FAIN, John Fain, Robert Fain, Constitution is sufficient to prevent the pun

et al. ishment of the plot by law. It was urged farther that to make a right Appeal—finality of decree of circuit court

of appeals. depend upon motives is to make it depend upon the whim of a jury, and to deny the The jurisdiction of a Federal circuit court over right. But it must be assumed that the con

a controversy between citizens of different stitutional tribunal does its duty, and finds states, claiming under grants from differfacts only because they are proved. The ent states, depends entirely upon the diverpower of the legislature to make the fact of sity of citizenship, withing the meaning of malice material we think sufficiently appears

the rule that makes the decrees of a cir

cuit court of appeals final in cases in which from what we already have said.

diversity of citizenship is the sole ground Finally, it is argued that the supreme

of original jurisdiction, since Congress, in court of Wisconsin would hold that the stat

the various judiciary acts, has only ute extends to acts of which the motives

ferred original jurisdiction on the circuit were mixed, and which were done partly courts over controversies of this character from disinterested malevolence and partly when the parties are citizens of the same from a hope of gain. If so, it is said, the

state. statute would be open to all the objections

[No. 8.] at which we have hinted in dealing with the word "wilfully.” The supreme court did use Argued and submitted October 18, 19, 1904. some language which looked that way, but

Decided November 7, 1904. we consider it to have decided that the statute would be confined to combinations with intent to do wrongful harm. 110 Wis. 193. / APPEAL from the United States Circuit

Court of Appeals for the Sixth Circuit 260, 62 L. R. A. 700, 85 N. W. 1046. Thus to review a decree which affirmed a decree limited, on whatever ground, the statute of the Circuit Court for the Eastern Diswould punish only combinations of a kind 'trict of Tennessee dismissing a bill to re

V.

con

move a cloud upon the title to real property the Congress may, from time to time, ordain which the parties claimed under grants re- and establish.” And by § 2 that "the juspectively from the states of Tennessee and dicial power shall extend to all cases, in law North Carolina. Dismissed for want of ju- and equity, arising under this Constitution, risdiction.

the laws of the United States, and treaties See same case below, 53 C. C. A. 467, 116 made, or which shall be made, under their Fed. 147.

authority; to all cases affecting ambassa

dors, other public ministers, and consuls; to Statement by Mr. Chief Justice Fuller: all cases of admiralty and maritime juris

This was a bill filed by Stevenson and diction; to controversies to which the United others, citizens and residents of New York States shall be a party; to controversies beand Rhode Island, against Fain and others, tween two or more states, between a state citizens and residents of North Carolina and and citizens of another state, between citi. Georgia, in the circuit court of the United zens of different states, between citizens of States for the eastern district of Tennessee, the same state claiming lands under grants to remove a cloud upon the title to a body of different states, and between a state, or of wild lands lying adjacent to the boundary the citizens thereof, and foreign states, citibetween Tennessee and North Carolina. zens, or subjects. 2. In all cases affecting

Complainants claimed title under grants ambassadors, other public ministers, and from the state of Tennessee, and alleged that consuls, and those in which a state shall be the lands lay wholly in Monroe county, Ten party, the Supreme Court shall have original nessee. Defendants alleged that the lands jurisdiction. In all the other cases before lay wholly within the county of Cherokee, in mentioned, the Supreme Court shall have apthe state of North Carolina, and that they pellate jurisdiction, both as to law and fact, were lawfully granted to their ancestor by with such exceptions, and under such reguthat state.

lations, as the Congress shall make.” The issue involved the true boundary line The Supreme Court alone “possesses jurisbetween North Carolina and Tennessee. The diction derived immediately from the Consticircuit court held that the lands lay in the tution, and of which the legislative power state of North Carolina, and that the title cannot deprive it” (United States v. Hudwas in defendants, and dismissed the bill. son, 7 Cranch, 32, 3 L. ed. 259), but the

Thereupon an appeal was taken to the cir- jurisdiction of the circuit courts depends upcuit court of appeals for the sixth circuit, on some act of Congress (Turner v. Bank and, on hearing, the decree of the circuit of North America, 4 Dall. 8, 10, 1 L. ed. 718, court was affirmed. 53 C. C. A. 467, 116 | 719; M’Intire v. Wood, 7 Cranch, 504, 506, Fed. 147.

3 L. ed. 420, 421). From the decree of the circuit court of ap- The use of the word “controversies” as in

" peals this appeal was prosecuted.

contradistinction to the word "cases," and

the omission of the word "all” in respect of Messrs. T. S. Webb, Hu. L. McClung, controversies, left it to Congress to define Charles Seymour, and L. M. G. Baker for the controversies over which the courts it appellants.

was empowered to ordain and establish Messrs. John W. Green and Samuel G. might exercise jurisdiction, and the manShields for appellees.

ner in which it was to be done.

By the 11th section of the judiciary act Mr. Chief Justice Fuller delivered the of September 24, 1789, it was provided that opinion of the court:

the circuit courts of the United States If the jurisdiction of the circuit court was should “have original cognizance, concurrent dependent entirely on diversity of citizen- with the courts of the several states, of all ship, the decree of the circuit court of ap- suits of a civil nature, at common law or in peals was final, and this appeal cannot be equity, where the matter in dispute exceeds, maintained. The contention of appellants is exclusive of costs, the sum or value of five that it was not so dependent because juris-hundred dollars, and the United States are diction also existed in that the parties plaintiffs or petitioners, or an alien is a parclaimed under grants from different states, ty, or the suit is between a citizen of the to which it is replied that, under the Consti- state where the suit is brought and a citizen tution and laws, the circuit courts are not of another state." [1 Stat. at L. 78, chap. vested with jurisdiction on that ground ex- 20.] cept when the parties are citizens of the In Bank of United States v. Deveaux, 5 same state.

Cranch, 61, 85, 3 L. ed. 38, 44, Mr. Chief JusBy § 1 of article 3 of the Constitution it tice Marshall said: is provided that "the judicial power of “The judicial power of the United States, the United States shall be vested in one su- as defined in the Constitution, is dependent, preme court, and in such inferior courts as 'Ist, on the nature of the case; and, 2d, on