malicious prosecution, as that action is, board of general appraisers decided that this limited in New York. cloth was liable to a duty of 2 cents per It is argued that the court of appeals ex-square yard, under that paragraph and also, ceeded its functions under the Constitution the different items being valued at over 11, of the state, and in that way denied the plaintiffs due process of law. We see no reason to think so, but with that question we have nothing to do. French v. Taylor, 199 U. S. 274, 50 L. ed. 189, 26 Sup. Ct. Bep. 76; Rawlins v. Georgia, 201 U. S. 638, 50 L. ed. 899, 26 Sup. Ct. Rep. 560. Writ dismissed.

(203 U. S. 136)

UNITED STATES, Petitioner,

V.

GEORGE RIGGS & CO.

Duties-on figured cotton cloth.

Figured cotton cloth valued at over 11, 12, and 122 cents per square yard is liable, in addition to the specific duty imposed by the act of July 24, 1897 (chap. 11, 30 Stat. at L. 175, 178, U. S. Comp. Stat. 1901, pp. 1656, 1659), 313, to the ad valorem tax imposed by 11 306, 307, upon similar plain cotton cloth above those values.

[No. 167.]

Argued October 23, 1906. Decided Novem-
ber 12, 1906.

ON
N WRIT of Certiorari to the United
States Circuit Court of Appeals for the
Second Circuit to review a decree which af-
firmed a decree of the Circuit Court for the
Southern District of New York, reversing a
decision of a board of United States general
appraisers as to the duty chargeable on
figured cotton cloth. Reversed.

12, and 122 cents per square yard, to the ad valorem tax imposed by paragraphs 306 and 307 upon similar plain cloth above those values. The circuit court of appeals, while admitting its belief that Congress intended to place an extra duty on figured cloth, felt bound to decide, upon the language of paragraph 313, that the tax placed by it upon figured cloth was to be added only to specific taxes imposed on less valuable cloths by paragraphs 306 and 307.

To explain: By paragraph 306 cotton cloth not bleached, etc., exceeding 100 and not exceeding 150 threads to the square inch, etc., and not exceeding 4 square yards to the pound, pays 12 cents per square yard, with an increasing rate as the number of yards to the pound increases. But a proviso substitutes for the foregoing a different set of duties on all cotton cloth

with the same count of threads, not bleached, etc., if valued above

a certain

sum; for instance, if over 9 cents per square yard, 30 per centum ad valorem; if over 11, 35, etc. Paragraph 307 is similar in form for cloths with between 150 and 200 threads.

By paragraph 313 figured cloth "shall pay, in addition to the duty herein provided for other cotton cloth of the same description, or condition, weight, and count of threads to the square inch, one cent per square yard if valued at not more than seven cents per square yard, and two cents per square yard if valued at more than seven cents per square yard." In the judgSee same case below, 69 C. C. A. 357, 136 cloth in question, as figured cloth, is liable ment appealed from it is assumed that the

Fed. 583.

The facts are stated in the opinion. Assistant Attorney General McReynolds and Solicitor General Hoyt for petitioner. Messrs. W. Wickham Smith and John K. Maxwell for respondents.

to this duty, and that, in deciding what such cloth shall pay, the collector must start from this paragraph. This paragraph must decide to what other duty the one here levied shall be added. If it stopped with the words "other cotton cloth of the same

• Mr. Justice Holmes delivered the opinion description, or condition," no doubt the tax

of the court:
This case
comes here on a certiorari
granted to bring up a decision of the
circuit court of appeals affirming the de-
cision of the circuit court and reversing
that of a board of United States general ap-
praisers. The respondents imported "cotton
cloth in which other than the ordinary
warp and filling threads have been intro-
duced in the process of weaving to form a
figure," to quote the words of paragraph 313
of the tariff act of July 24, 1897 (chap. 11,
30 Stat. at L. 175, 178, U. S. Comp. Stat.
1901, pp. 1656, 1659). The collector and

cases

might be added to an ad valorem tax when
that would be required by paragraph 306
or 307. Those words might be taken to
indicate cloth of similar value in
within the provisos as well as goods of
similar weight taxed under the first part
of paragraphs 306 and 307. But, as general
words, they would include weight as readily
as value; and the mention of weight and
count shows that they are used in a narrow-
er sense; for instance, to indicate quality,
as bleached or otherwise. Hence the cri-
teria for the duty to which that under 313
is to be added all point to a specific duty

*139

alone; and these criteria therefore must determine for figured cloths the duty to which they are liable under paragraphs 306 and 307. You must not alter words in the interest of the imagined intent, and the importers are entitled to the benefit of even a doubt.

The truth is, as pointed out in the argument for the government, that the element of value is woven through the whole tissue of the act. The collector does not know, what duty to assess, even under 313, without a valuation. It cannot be found out* what "the duty herein provided" is, or whether it is specific or ad valorem, with

paragraphs, just as if 313 did not exist.
Paragraphs 306 and 307 tell the collector
to make it on all cotton and to assess a
duty on all cotton above a certain value
after the valuation is made. Paragraph
313 assumes the duty imposed by 306 and
307 to have been assessed. As against these
plain directions, coupled with the manifest
intent of the act, the failure to mention
value along with weight raises no serious
doubt in our minds.
Decree reversed.

In spite of this reasoning, no one, we take it, has any serious doubt that para-out making a valuation under the previous graph 313 was not intended to affect or cut down duties already imposed in clear though general terms. The provisos of the earlier paragraphs are made applicable to "all cotton cloths" of the sorts described, in so many words. The qualified reading is due to scruples that hardly would occur except to the professional mind. As against those scruples, it is to be observed, in the first place, that the clauses to which we have referred and their neighbors, to go no further into the general scheme of the tariff act, consistently raise the amount of the tax on cotton cloth as the cloth becomes more expensive, and that it would reverse the tendency and go counter to the intent expressed everywhere else, if, in this instance, the more valuable goods were withdrawn from the general tax imposed upon their class. It is said that, in some cases, the construction contended for even would make the duty on figured cotton of a high price less than that on cheap cloth.

In the next place, if the language of paragraph 313 is not broad enough to apply to both classes of duty previously imposed, the easier contention would seem to be that the additional duty created by it was put only upon the first class, that of the cheaper goods taxed by weight, rather than that it cut down what already had been made clear. Such a notion would be disposed of by the fact that paragraph 313 applies to all cotton cloth and to all values, higher as well as lower than seven cents, and by other considerations not necessary to state. But, if anything had to yield it would be paragraph 313.

(203 U. S. 120)

CHARLES M. TAYLOR, Appt.,

THOMAS BURNS, John A. Duncan, and

S. R. Kauffman.

Deeds-what constitutes.

1. No transfer of title was effected by an instrument which recites that the party of the first part "sells" certain mining claims to the party of the second part for a specified consideration, and "upon the terms and consideration following," and which, in its subsequent provisions, authorizes the party of the second part to sell and negotiate the mines for any sum above $45,000, and retain out of the purchase price seven eighths of the excess, the party of the first part agreeing to execute any conveyance thereafter necessary to convey a good title, and the party of the second part assuming no obligations except a general one by which other in the negotiation and sale; such docuboth parties mutually agree to aid each ment is not a deed, but simply a power of attorney, and, as such, subject to revoca

tion.*

Power of attorney-revocation.

2. An interest in the property upon which the power is to operate, and not merely an interest in the exercise of the power, is essential to make a power of attorney one coupled with an interest, so as not to be subject to revocation.† [No. 28.]

The artificial doubt is raised by assuming that the collector must start with the first part of paragraph 313 and find out what his assessments are to be from that alone. That is a mistake. He has before him the whole act. He has been told in the earlier paragraphs in unmistakable language that all cotton cloth with this number of threads and above a certain value must pay 30 or 35 cents ad valorem. Then Submitted October 16, 1906. Decided No

comes this paragraph, which on its face purports to make an addition to some tax which it assumes to have been imposed by the earlier ones. It is intended to hit all cotton cloths and all values, and it is intended to be added to a tax already imposed. But this would not be the case if the presence of a figure in the cloth changed the rate established by the preceding scheme.

vember 12, 1906.

PPEAL from the Supreme Court of the Territory of Arizona to review a decree which affirmed a decree of the District

vol. 16, Deeds, §§ 6-9.
*Ed. Note.-For cases in point, see Cent. Dig.

tEd. Note.-For cases in point, see Cent. Dig. vol. 40, Principal and Agent, § 55.

Court for the County of Cochise, in that | On February 27, 1903, Thomas Burns territory, in favor of defendants in a suit executed and filed for record a revocation to quiet title to certain mining claims. of all authority given by the agreement to Affirmed. Taylor, and notified him by letter of such See same case below (Ariz.) 76 Pac. 623. revocation. On April 6, 1903, Taylor filed

On November 9, 1901, Burns deeded a one fourth interest in the mining claims to John A. Duncan, and on March 9, 1903, Burns and Duncan conveyed the entire property to S. R. Kauffman as trustee. does not in terms grant or convey. The

(203 U. S. 127) WILLIAM H. ANDREWS, Plff. in Err.,

V.

EASTERN OREGON LAND COMPANY.

Error to state court-review of decree setting aside finding of fact.

A judgment of the highest court of a state, which, reversing the trial court, upholds as against a pre-emptor a patent from the United States under the Dalles military wagon road grant made by the act of February 25, 1867 (14 Stat. at L. 409, chap. 77), resting its conclusion upon the general proposition that there was no competent proof to impeach the records of the Land Department or to overthrow the presumption of validity which attends a patent from the United States, will not be reversed upon any presumption as to what might have been the testimony upon which the trial court made its finding that the land was situated entirely outside the limits of the grant, where such testimony, though taken and reported by a referee, is not preserved in the record.

nearest approach to a word of conveyance is "sells." This is more apt in describing the passing of the title of personal than of real property. Not that this is decisive, for not infrequently it is held to manifest an intent to convey the title to the property named, whether real or personal. But when the purpose of the transaction is stated the word will ordinarily have no more effect upon the title than is necessary to accomplish the purpose. The purpose here named was the giving of authority to make a sale to some third party at not less than a named price, which price would belong to Burns, less the commission on the sale. For this it was not necessary to pass title with the authority. And it is not ordinarily to be expected that an owner will part with title before receipt of purchase price, or security therefor. Appellant contends that by this instrument he became owner, while Burns was only an equitable mortgagee. But no time is fixed for the sale, and therefore no time for the maturity of the supposed debt, nor is any liability cast upon Taylor for the payment of Argued October 19, 1906. Decided Novemany portion thereof. Indeed, its amount is uncertain, whether $45,000, or $45,000 plus one eighth of a price which should or could be realized on a sale. If it were true that title passed, then Taylor could immediately convey to a third party, who, by payment of $45,000, would acquire the property. We need not inquire whether there was a breach of contract for which Taylor could recover damages. The question here is the effect of the contract upon the title. While it may be conceded that the meaning and scope of the instrument are not perfectly clear, yet it seems more reasonable to hold that it was simply a grant of authority to Taylor to "sell and negotiate" the mines, and not also a transfer to him of the title to the property.

As such an instrument it was subject to revocation. It was not a power of attorney coupled with an interest. By the phrase "coupled with an interest," is not meant an interest in the exercise of the power, but an interest in the property on which the power is to operate. Hunt v. Rousmanier, 8 Wheat. 174, 5 L. ed. 589. Now, as we construe this contract, Taylor was to re

ceive, in case he made a sale, seven eighths of the price in excess of $45,000,-that is, he was to be paid for making the sale. It was an interest in the exercise of the power, and not an interest in the property upon which the power was to operate.

We see no error in the ruling of the Supreme Court of the territory of Arizona, and its judgment is affirmed.

[No. 48.]

ber 12, 1906.

State of Oregon to review a judgment N ERROR to the Supreme Court of the which, reversing the Circuit Court of Sherman County, in that state, upholds a patent from the United States under the Dalles military wagon road land grant as against one claiming title as a pre-emptor. Affirmed.

See same case below, 45 Or. 203, 77 Pac.

117.

The facts are stated in the opinion. Messrs. S. M. Stockslager, James F. Moore, and George C. Heard for plaintiff in error.

Messrs. Aldis B. Browne and Alexander Britton for defendant in error.

Mr. Justice Brewer delivered the opinion of the court:

This case brings before us a judgment of the supreme court of the state of Oregon. 45 Or. 203, 77 Pac. 117. It involves the title to lot 3 and the east of the southwest

of section 7, township 1 north, range 17 east of the Willamette meridian. The a preplaintiff in error claims title as emptor; the defendant in error under a patent from the United States. The land was patented as a part of the grant made by act of Congress, approved February 25, 1867 (14 Stat. at L. 409, chap. 77), of

three alternate sections on each side of the

road, to the Dalles Military Wagon Road Company, a full account of which is to be found in Wilcox v. Eastern Oregon Land

128

Co. 176 U. S. 51, 44 L. ed. 368, 20 Sup. Ct. | harmony with the general rule of the ef Rep. 269. If the patent was valid the title fect to be given to a patent of the United to the land was in the defendant, and the States, we are not justified in setting aside judgment of the supreme court of Oregon the judgment upon any presumption of was correct. There being no conflicting what might have been the testimony upon land grant, the question whether the land which the trial court made its findings. was within the territorial limits of that to the road company is apparently one of fact only, and the decision of the Land Department on matters of fact is ordinarily conclusive in the courts.

The judgment of the Supreme Court of the state of Oregon is affirmed.

(203 U. S. 164)

CHARLES W. CLARK, Plff. in Err.,

V.

P. O. WELLS.

Judgment-jurisdiction-service of process. 1. No valid judgment in personam can be rendered against a defendant, without personal service upon him in a court of competent jurisdiction, or waiver of summons, and voluntary appearance therein.* Appearance-for purpose of removing cause -effect.

2. A defendant in a suit in a state court

does not, by a special appearance for the sole purpose of removing the cause to a Federal circuit court, before service of summons, submit himself to the jurisdiction of the state court, nor, upon removal to the Federal court, deprive himself of the right to object to the manner of service upon him in that court.†

The difficulty in the case arises from the condition of the record. This shows that by the trial court findings of fact and conclusions of law were made, one of the findings being that the land is situated entirely outside the limits of the grant, and more than 3 miles from the road as actually surveyed, platted, and constructed by the company, and certified by the governor of the state to the Land Department. No testimony is preserved, although it appears that the case was referred to a referee, who took and reported the testimony. The supreme court reversed the judgment of the trial court, and, while making no special findings, in its opinion discusses certain matters of evidence, and, after stating that the testimony tends to show that the land was in fact within the limits of the grant, rests its conclusion upon the general proposition | that there is no competent proof to impeach Appearance-effect of removing cause to the records of the Land Department or Federal court. overthrow the presumption of validity which attends a patent of the United States. The certificate of the clerk of the supreme court states that the transcript is the full and complete record filed in that court and upon which the appeal was heard; while the certificate of the clerk of the trial court to the record sent to the supreme court is "that the same is a full, true, and correct copy of the complaint, amended answer, demurrer to the amended answer, reply, findings of fact and conclusions of law, undertaking on appeal, notice of appeal filed in my office in the above-entitled cause, and of all journal entries made in said cause, and of the whole thereof."

From this is is contended that the supreme court, without any evidence before it, set aside the findings of fact made by the trial court. But it is the judgment of the supreme court whose validity we are to consider, and while it made no special findings, its statement of what was before it for consideration and its conclusions therefrom are sufficient to sustain its judgment. True, the record fails to show how the facts were brought to its knowledge, but it is the highest court of the state, and we may not ignore its recital of what it considered, especially as it appears that testimony was taken and preserved. Egan v. Hart, 165 U. S. 188, 41 L. ed. 680, 17 Sup. Ct. Rep. 300. And when its conclusions are in

3. The exercise of the right of remov ing a cause from a state to a Federal circuit court before service of summons by a defendant who appeared specially for that sole purpose does not amount to a general

appearance.†

Writ and process-substituted service in the
Federal courts.

4. Service by publication in the manner prescribed by the state statutes for nonresident defendants cannot be had in the Federal circuit court to which a suit in which an attachment has issued has been removed from a state court before service of

summons.

Removal of causes-enforcing attachmenteffect of lack of service of process.

5. The want of any jurisdiction over the person of defendant in a case removed to a Federal circuit court from a state court before service of summons, on a special appearance by defendant for that sole purpose, does not, in view of the provision of the removal act of March 3, 1875 (18 Stat. at L. 471, chap. 137, U. S. Comp. Stat. 1901, p. 511), § 4, preserving the lien of attachments in the state courts, prevent the Federal court from entering a judgment enforceable against the real property of defendant which had been attached before the case was removed, where the state court might, but for

*Ed. Note.-For cases in point, see Cent. Dig. vol. 30, Judgment, §§ 25-33.

Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appearance, § 50.