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And the court quoted the headnotes of Constitution of the United States, or an auRogers Locomotive Mach. Works v. Ameri- thority exercised under the United States; can Emigrant Co. 164 U. S. 559, 41 L. ed. that is to say, that such a right was as552, 17 Sup. Ct. Rep. 188, to the effect that serted, and was denied by the state supreme the swamp-land act of 1850 gave an incho- court, in declining to give collateral effect ate title to the state; that the identifica- to a judgment, under certain circumstances, tion of the lands by the Secretary of the In- rendered by a court of the United States in terior was necessary before the title became Louisiana. perfect; that the certificate of the Secre- We inquire, then, whether, when the state tary, in 1858, that certain lands inured to court, while holding the defense good as to the state under the railroad act of 1856, the 35.18 acres by reason of the judgment was a decision that they were not embraced in Smith v. Turner, held that, in the cirby the swamp-land act of 1850; that the accumstances detailed, defendants could not ceptance by the state of lands certified to be permitted to insist that the thing adit by the Secretary is conclusive upon the judged in that case determined the title to state, and that a contract with a county for the entire tract, that ruling presented a swamp and overflowed lands gives no better Federal question. right than the county had to the lands Generally speaking, questions of this sort which had been previously certified to the are not Federal questions. In Pierce v. state.

Somerset R. Co. 171 U. S. 641, 648, 43 L. The court then stated that, apart from ed. 316, 319, 19 Sup. Ct. Rep. 64, 66, we these defenses, there appeared to be no ob- said: “A person may, by his acts or omisjection to plaintiff's title.

sion to act, waive a right which he might The judgment of the district court was otherwise have under the Constitution of affirmed, and this writ of error allowed. the United States as well as under a statMotions to dismiss or affirm were submitted ute, and the question whether he has or has and their consideration postponed to the not lost such right by his failure to act or hearing on the merits.

by his action is not a Federal one." Eustis

v. Bolles, 150 U. S. 361, 37 L. ed. llll, 14 Messrs. William P. Hall, A. H. Leon- Sup. Ct. Rep. 131; Rutland R. Co. v. Cenard, and E. W. Sutherlin for plaintiffs in tral Vermont R. Co. 159 U. S. 630, 40 L. ed. error.

284, 16 Sup. Ct. Rep. 113, and Seneca NaMessrs. Harry H. Hall, Frank P. tion of Indians v. Christy, 162 U. S. 283, 40 Stubbs, and W. H. Wise for defendants in L. ed. 970, 16 Sup. Ct. Rep. 828, were cited. error.

In Eustis v. Bolles, the state court held

that, by accepting his dividend under insolMr. Chief Justice Fuller delivered the vency proceedings, Eustis had waived his opinion of the court:

legal right to claim that the discharge obWe assume from the errors assigned, and tained under subsequent laws impaired the no other grounds are indicated by the rec-obligation of a contract, and this court held ord, that Federal questions in two aspects that, whether that view of the case was are relied on to justify this writ of error. sound or not, it was not a Federal question,

First. The construction and application and therefore not within the province of of the acts of Congress of 1849, 1850, and this court to inquire into. 1856, taken with other acts referred to.

In Seneca Nation of Indians v. Christy, But as to this it should be pointed out it was held by the state court that even if in the first place that the state court ad- there were a right of recovery on the part judged the Smith title invalid on the inde

of plaintiffs in error because a certain pendent ground, among others, of noncompliance with an act of the general assembly grant was in contravention of the Constiof Louisiana; and, in the second place, that tution of the United States, yet that such the Federal question thus suggested had recovery was barred by the New York statbeen so explicitly foreclosed by previous de- ute of limitations. cisions as to leave no room for real con

In Gillis v. Stinchfield, 159 U. S. 658, 40 troversy. Rogers Locomotive Mach. Works L. ed. 295, 16 Sup. Ct. Rep. 131, and Speed y. American Emigrant Co. 164 U. S. 559, 41 v. McCarthy, 181 U. S. 269, 45 L. ed. 855, 21 L. ed. 552, 17 Sup. Ct. Rep. 188; Michigan Sup. Ct. Rep. 613, it was ruled that the apLand & Lumber Co. v. Rust, 168 U. S. 592, plication of the doctrine of estoppel to min42 L. ed. 592, 18 Sup. Ct. Rep. 208; Equi- ing locations did not raise Federal questable Life Assur. Soc. v. Brown, 187 U. S. tions. 308, 47 L. ed. 190, 23 Sup. Ct. Rep. 123. In the present case, the supreme court of

Second. That the supreme court of Louis- Louisiana applied the doctrine which foriana, by its judgment in this case, denied a bids parties from assuming inconsistent poright specially set up or claimed under the 'sitions in judicial proceedings.

25 S. C.-48.

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In its view, Smith, having insisted, in Y. Supp. 813, and in Court of Appeals, 178 Smith v. Turner, that, notwithstanding the N. Y. 63, 64 L. R. A. 840, 70 N. E. 111. railroad company had come in as defendant, The facts are stated in the opinion. and each party asserted title to the entire Messrs. Carlos S. Hardy and Laurence tract, the title to the 35.18 acres was alone G. Goodhart for plaintiff in error. in issue, and that the value of the whole Messrs. Otto H. Droege and J. Lawrence tract was, therefore, not involved, and the Friedmann for defendant in error. railroad company having been thereby deprived of its writ of error, must be confined Mr. Justice McKenna delivered the opinin this suit to the specific recovery obtained ion of the court: in that, so far as the effect of that judg- The plaintiff in error is a corporation or ment was concerned. That was a question ganized under an act of Congress approved of estoppel or quasi-estoppel, and not a Fed- June 29, 1894. This action was brought eral question. Whether it was sound or against it by defendant in error as payee in not, it is not for us to inquire. It was a certain benefit certificate issued by it to broad enough to support the judgment Emanuel Meyer, husband of Henrietta Meywithout reference to any Federal question. er, dated September 20, 1894, whereby it inWrit of error dismissed.

sured his life in the sum of $2,000. The defendant in error obtained judgment, which

was successively affirmed by the appellate (198 U. S. 508)

division and by the court of appeals of New SUPREME LODGE, KNIGHTS OF PYTH. York. The judgment of affirmance was enIAS, Piff. in Err.,

tered in the supreme court, to which the case was remitted, and this writ of error was

then sued out. HENRIETTA MEYER.

There are two questions in the case,—the

place of the contract and the effect of the nsurance-what law

governs-error to following provision in the certificate of instate court-construction of state statute. surance:

“And I hereby, for myself, my heirs, as. 1. A certificate of insurance issued in Illinois signs, representatives, and beneficiaries, ex

to a resident of New York, which, by its terms, was first to take effect as a' binding pressly waive any and all provisions of law, obligation when the insured should execute now or hereafter in force, prohibiting or the agreement indorsed thereon to accept it excusing any physician heretofore "subject to all the conditions therein con- hereafter attending me professionally or tained," is a New York, and not an Illinois otherwise, from disclosing or testifying to contract, where New York was the state in which the required agreement was executed. any information acquired thereby, or mak

ing such physician incompetent as a wit2. Whether the relation of physician and pa

tient so existed as to exclude the former's ness; and hereby consent that any such testimony, under N. Y. Code Civ. Proc. $$ 334, physician may testify to and disclose any 836, involves a question of the construction information so derived or received in any of a state statute, on which the decisions of suit or proceeding wherein the same may be the highest state court will be accepted on a material.” writ of error from the Supreme Court of the United States to that court.

This provision takes pertinence from another, whereby "it is agreed that if death

shall result by self-destruction whether sane [No. 234.]

or insane," the certificate "shall be null and

void, and all claims on account of such memArgued and submitted April 28, 1905. De bership shall be forfeited.” cided May 29, 1905.

The case was submitted for a special ver

dict on the question “Did Emanuel Meyer, N ERROR to the Supreme Court of the the husband of the plaintiff, commit sui

State of New York to review a judgment cide?” The jury answered "No." entered pursuant to the mandate of the On the trial plaintiff in error offered the Court of Appeals of that state, which af- testimony of three physicians who attended firmed the judgment of the Appellate Divi- Meyer, as to declarations made by him tendsion of the Supreme Court, Second Depart- ing to show that he had taken poison with ment, which had in turn affirmed a judgment suicidal intent. It appeared that Meyer did of the Supreme Court in and for the County not request the attendance of the physicians, of Queens, in that state, in favor of plain--indeed, protested against treatment. The tiff in an action on a certificate of insurance. testimony was excluded under $8 834 and Affirmed.

836 of the Code of Civil Procedure of the See same case below in Appellate Division state. Section 834 forbids any physician of Supreme Court, 82 App. Div. 359, 81 N. “to disclose any information which he ac



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quired in attending a patient, in a profes- United States v. Donnally, 8 Pet. 361, 8 sional capacity, and which was necessary to L. ed. 974. enable him to act in that capacity,” and However, if the certificate of insurance is 836 provides that $ 834 applies "unless the not an Illinois contract, all the questions provisions thereof are expressly waived which depend upon that become irrelevant. upon the trial or examination by

the We think it is not an Illinois contract. patient. . • But a physician

Judge Gray, expressing the opinion of the may, upon a trial or examination, disclose court of appeals, disposed of the contention any information as to the mental or physical that the certificate of insurance is an Illicondition of a patient who is deceased, nois contract briefly but completely. The which he acquired in attending such patients learned judge said: professionally, except confidential communi- “With respect to the first of these quescations and such facts as would tend to dis- tions [that the legislation of New York imgrace the memory of the patient, when the paired the obligation of the contract between provisions of $ 834 have been expressly plaintiff in error and Meyer] raised by the waived on such trial or examination by the appellant, whatever other answers might be personal representatives of the deceased pa- made to the applicability of the provision of tient."

the Federal Constitution relied upon, it is The court of appeals held that the physi- sufficient to say, now, that this contract was cians were "attending a patient in their pro- consummated in the state of New York, and fessional capacity;" that the information is to be governed, in its enforcement, by the that they acquired "was necessary to enable” laws of that state. The beneficiary was a them "to act in that capacity," and that resident of this state, and there made his aptheir testimony was therefore properly ex- plication for the insurance. The certificate, cluded under $$ 834 and 836. The court | issuing upon the application, appears, from also held that the certificate of insurance its language, only to have been signed by was a New York contract. Judge Gray and the officers of the defendant at Chicago, in Chief Judge Parker concurred in the latter the state of Illinois, on September 20th, view, but dissented as to the application of 1894; but upon it was printed the following the Code sections. Plaintiff in error con- clause: 'I hereby accept this certificate of tests both sections. The argument is that membership subject to all the conditions (1) it appears from the testimonium clause therein contained,' and that had the signaof the certificate of insurance that it was ture of the applicant, followed by the words, signed and sealed by plaintiff in error at 'Dated at New York, this 28th day of SepChicago, Illinois, and hence is an Illinois tember, 1894, attest: Louis Riegel, secrecontract, and must be construed with regard tary section 2179, Endowment Rank, K. of to the law of that jurisdiction; and as there P. By the terms of the certificate, the

' is no evidence of what that law is it must agreement of the defendant was subject not be assumed to be what the common law of only to the conditions subscribed to by the the state is, and under that law the testi- member in his application, but 'to the furmony of the physicians was admissible. (2) ther conditions and agreements hereinafter We quote counsel: "The attempted appli- named;' and the clause containing his accation of $$ 834 and 836 of the Civil Code ceptance, above quoted, was one of those of Procedure of the state of New York to further agreements.'

'further agreements. From these terms of the contract in the case at bar is a violation the agreements of the parties the only natof the Federal Constitution."

ural conclusion is that the place of the conThese contentions may be said to have the tract was where it was intended, and undersame ultimate foundation, but regarding stood, to be consummated. Its completion them as separate and independent, the first depended upon the execution by the member is based on the ground that plaintiff in error of the further agreement indorsed upon the derived the right, from its contract with certificate: namely, to accept it 'subject to Meyer, to the testimony of the physicians, all the conditions therein contained.' The which right attended the contract in what- ! contract was not completed, in the sense ever forum suit upon the contract might be that it was binding upon either party to it, brought. This is certainly debatable. The until it was delivered in New York, after the general rule is that all matters respecting execution by the member of the further the remedy and admissibility of evidence de- agreement expressing his unqualified acceptpend upon the law of the state where the ance of its conditions. As a matter of fact, suit is brought.

the promise of the defendant was to pay the Northern P. R. Co. v. Babcock, 154 U. S. insurance moneys to the plaintiff, who re190, 38 L. ed. 958, 14 Sup. Ct. Rep. 978; sided in New York; a feature giving addi

. ; Wilcox v. Hunt, 13 Pet. 378, 10 L. ed. 209; tional local coloring to the contract. But Pritchard v. Norton, 106 U. S. 124, 27 L. ed the sufficient and controlling fact is that, by 104, 1 Sup. Ct. Rep. 102; Bank of the its terms, it was first to take effect as a


binding obligation when the required agree | Holden v. Metropolitan L. Ins. Co. 165 N. ment on the part of the member was exe-Y. 13, 58 N. E. 771, it was held that the cuted by him.” [178 N. Y. 70, 64 L. R. A. statute, by virtue of the amendment, "in 843, 70 N. E. 114.]

positive and express terms, requires the 2. The ground of this contention is not waiver to be made upon or at the time of made clear. The language of counsel points the trial or examination,” and “no one, exto the contract clause of the Constitution as cept the personal representatives of the dethat relied on, and to render it available ceased patient, can waive the provisions of makes the law of Illinois the obligation of $ 834, and it can be waived by them only the contract of insurance. But this can only upon the trial or examination where the evibe upon the supposition, which we have seen dence is offered or received."

Foley v. Royal is erroneous, that the certificate of insur-Arcanum was referred to, and limited to the ance was an Illinois contract, not a New construction of the statute as it stood before York contract. Being a New York contract, amendment. The opinion of the Court of the Code sections did not impair its obliga-Appeals in the case at bar follows the tion. They were enacted before the contract Holden Case and distinguishes prior cases. was executed, and if they were a valid exer- Judgment affirmed. cise of legislative power, and we have no doubt they were, it was competent for the

(198 U, S. 500) state to enact the rule of evidence expressed in them. The case is in this narrow compass,

AH SIN, Plff. in Err., and we need not further follow the details of the argument of counsel that the obliga- GEORGE W. WITTMAN, as Chief of Police tion of the contract of insurance was im- of the City and County of San Francisco, paired. But we may observe that there is no

California. question in the case of the validity or the enforcement of the provision in the certifi. Constitutional law-validity of municipal cate of insurance against suicide. It is only

ordinance against visiting

against visiting barricaded of the testimony offered to prove suicide.

gambling roomsdue process of law, Plaintiff in error sought to prove it by the equal protection of the laws. testimony of a physician, and the attempt

1. encountered the New York Code and the

A municipal ordinance which makes it un

lawful to visit or resort to a barred or barquestions we have discussed.

ricaded house or room where gambling imPlaintiff in error further contends that, plements are exhibited or exposed to view does as in writs of error to the circuit and dis- not deprive anyone of his liberty without due trict courts of the United States, we are not

process of law, even if it authorizes a conrestricted to constitutional questions, so in

viction for an innocent visit to such a place.

2. Discrimination against Chinese persons in writs of error to a state court, we may

the administration of a municipal ordinance also decide all questions presented by making it unlawful either to exhibit gambling the record, and that it is open for us to implements in a barred or barricaded house or decide whether the relation of doctor and room or to visit such a house or room where patient existed between one of the witnesses

gambling instruments are exhibited is not

sufficiently shown to enable the Supreme and Meyer. This is attempted to be made

Court of the United States to declare such out by that part of $ 709 of the Revised

ordinance void, as denying the equal proStatutes (U. S. Comp. Stat. 1901, p. 575) tection of the laws, in reviewing the refusal which provides: “The writ [to the final “

of a state court to grant habeas corpus to one

convicted of a violation of the ordinance, by judgment or decree of a state court] shall have the same effect as if the judgment or

a stipulation between the parties, recited in

the order discharging the writ, that the facts decree complained of had been rendered or

are as set forth in the petition, where such passed in a court of the United States."

petition merely avers that the ordinance is However this may be, in cases like that at

enforced "solely and exclusively against perbar, we accept the construction the state

sons of the Chinese race, and not otherwise,"

and contains no allegation that the condi. courts give to state statutes. It is manifest

tions and practices against which the ordi. that the question submitted involves the con

nance is directed do not exist exclusively struction of the state statute. Plaintiff in among the Chinese, or that there are other error is not helped by the decision in Foley offenders, as to whom it is not enforced. v. Royal Arcanum, 151 N. Y. 196, 56 Am.

[No. 245.] St. Rep. 621, 45 N. E. 456. It was there decided that a waiver in a policy of insur- Submitted April 28, 1905. Decided May 29, ance was valid under $$ 834 and 836, as

1905. they then stood, and their subsequent amendment did not affect the waiver. But the cer


N ERROR to the Superior Court in and tificate of insurance in the case at bar was for the City and County of San Fran. made after the amendment to s 836. Incisco, in the State of California, to review a


judgment discharging a writ of habeas cor. | whatsoever are exhibited or exposed to view pus to inquire into a conviction in the police when three or more persons are present. court of that city for the violation of an “Sec. 3. Every person who shall violate ordinance making it unlawful to exhibit any of the provisions of this ordinance shall gambling implements in a barred or barri. be deemed guilty of misdemeanor, and upon caded house or room, or to visit such a place conviction thereof shall be punished by a where gambling implements are exhibited or fine not to exceed five hundred ($500.00) exposed to view. Affirmed.

dollars, or by imprisonment in the county The facts are stated in the opinion. jail for not more than six (6) months, or Mr. George D. Collins for plaintiff in by both such fine and imprisonment.

“Sec. 4. This ordinance shall take effect Messrs. L. F. Byington and I. Harris and be in force on and after its passage. for defendant in error.

The complaint in the police court charges

a violation of the ordinance by the plaintiff Mr. Justice McKenna delivered the opin- in error. The petition for writ of habeas ion of the court:

corpus alleges that the ordinance violates Error to the judgment of the superior § 1 of the 14th Amendment of the Constitucourt of the city and county of San Fran- tion of the United States, in that it decisco, state of California, discharging a writ prives plaintiff in error of the equal protecof habeas corpus.

tion of the laws, because it is enforced solely Plaintiff in error filed a petition in said and exclusively against persons of the court, alleging that he was a subject of the Chinese race, and in that it "unjustly and Emperor of China, and was restrained of his arbitrarily discriminates in favor of certain liberty by defendant in error, who was the visitors, and also in favor of certain perchief of police of the city and county of San sons resorting to the house, room, or place Francisco, under a judgment of imprison- referred to in said ordinance, as well as in ment rendered in the police court of said favor of such persons and visitors as resort city for the violation of one of its ordi- to or visit such house or room or place nances. The ordinance is as follows:

when not barred or barricaded or protected “Prohibiting the Exposure of Gambling in a manner to make the same difficult of

Tables or Implements in a room Barred access or ingress to police officers.” These or Barricaded or Protected in Any Man- objections, it is alleged, were made by him ner to Make It Difficult of Access or In- in the police court, and overruled. gress to Police Officers, When Three or The petition also alleges that plaintiff in More Persons Are Present; or the Visit-error, is, by the ordinance, deprived of his ing of a Room Barred and Barricaded or liberty without due process of law, in that Protected in Any Manner to Make It he is prohibited thereby from visiting, innoDifficult of Access or Ingress to Police, cently and for a lawful purpose, the house in Which Gambling Tables or Imple- or room or place mentioned in said ordiments Are Exhibited or Exposed, When nance. Three or More Persons are present.

It is also alleged that the ordinance is in "Be it ordained by the people of the city contravention of the treaty between the

United States and China. and county of San Francisco as follows: “Sec. 1. It shall be unlawful for any per

Upon filing the petition a writ of habeas son within the limits of the city and county corpus was issued, returnable before the of San Francisco to exhibit or expose to court on the 22d of March, 1904, and peti

tioner admitted to bail in the sum of $10. view in any barred or barricaded house or room, or in any place built or protected in

The following is the order of the court a manner to make it difficult of access or dismissing the writ, and remanding the pe

titioner to custody: ingress to police officers, when three or more

“This matter came on regularly for hearpersons are present, any cards, dice, dominoes, fan-tan table or layout, or any part of ing this 28th day of March, A. D. 1904, the such layout, or any gambling implements and the people being represented by the dis

petitioner being represented by his counsel whatsoever. “Sec. 2. It shall be unlawful for any per- and agreed in open court by counsel for the

trict attorney; whereupon it was stipulated son within the limits of the city and county people and by counsel for the petitioner that of San Francisco to visit or resort to any the facts are as set forth in the petition on such barred or barricaded house or room or file herein for the writ of habeas corpus. other place built or protected in a manner The cause was then argued by counsel on to make it difficult of access or ingress to the points stated in the said petition, and police officers, where any cards, dice, dom- was thereupon submitted to the court for inoes, fan-tan table or layout, or any part its decision and judgment; and the court, of such layout, or any gambling implements being fully advised in the matter, does now,

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