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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 Secretary, in 1858, that certain lands inured to the state under the railroad act of 1856, was a decision that they were not embraced by the swamp-land act of 1850; that the acceptance by the state of lands certified to it by the Secretary is conclusive upon the state, and that a contract with a county for swamp and overflowed lands gives no better right than the county had to the lands which had been previously certified to the state.

The court then stated that, apart from these defenses, there appeared to be no objection to plaintiff's title.

The judgment of the district court was affirmed, and this writ of error allowed. Motions to dismiss or affirm were submitted and their consideration postponed to the hearing on the merits.

Messrs. William P. Hall, A. H. Leonard, and E. W. Sutherlin for plaintiffs in

error.

Messrs. Harry H. Hall, Frank P. Stubbs, and W. H. Wise for defendants in

error.

Mr. Chief Justice Fuller delivered the opinion of the court:

We assume from the errors assigned, and no other grounds are indicated by the record, that Federal questions in two aspects are relied on to justify this writ of error. First. The construction and application of the acts of Congress of 1849, 1850, and 1856, taken with other acts referred to.

But as to this it should be pointed out in the first place that the state court adjudged the Smith title invalid on the independent ground, among others, of noncompliance with an act of the general assembly of Louisiana; and, in the second place, that the Federal question thus suggested had been so explicitly foreclosed by previous de

cisions as to leave no room for real con

troversy. Rogers Locomotive Mach. Works v. American Emigrant Co. 164 U. S. 559, 41 L. ed. 552, 17 Sup. Ct. Rep. 188; Michigan Land & Lumber Co. v. Rust, 168 U. S. 592, 42 L. ed. 592, 18 Sup. Ct. Rep. 208; Equitable Life Assur. Soc. v. Brown, 187 U. S. 308, 47 L. ed. 190, 23 Sup. Ct. Rep. 123.

Second. That the supreme court of Louisiana, by its judgment in this case, denied a right specially set up or claimed under the 25 S. C.-48.

We inquire, then, whether, when the state court, while holding the defense good as to the 35.18 acres by reason of the judgment in Smith v. Turner, held that, in the circumstances detailed, defendants could not be permitted to insist that the thing adjudged in that case determined the title to the entire tract, that ruling presented a Federal question.

Generally speaking, questions of this sort are not Federal questions. In Pierce v. Somerset R. Co. 171 U. S. 641, 648, 43 L. ed. 316, 319, 19 Sup. Ct. Rep. 64, 66, we said: "A person may, by his acts or omission to act, waive a right which he might otherwise have under the Constitution of the United States as well as under a statute, and the question whether he has or has not lost such right by his failure to act or by his action is not a Federal one." Eustis v. Bolles, 150 U. S. 361, 37 L. ed. 1111, 14 Sup. Ct. Rep. 131; Rutland R. Co. v. Central Vermont R. Co. 159 U. S. 630, 40 L. ed. 284, 16 Sup. Ct. Rep. 113, and Seneca Nation of Indians v. Christy, 162 U. S. 283, 40 L. ed. 970, 16 Sup. Ct. Rep. 828, were cited.

In Eustis v. Bolles, the state court held that, by accepting his dividend under insolvency proceedings, Eustis had waived his legal right to claim that the discharge obtained under subsequent laws impaired the obligation of a contract, and this court held that, whether that view of the case was sound or not, it was not a Federal question, and therefore not within the province of this court to inquire into.

In Seneca Nation of Indians v. Christy, it was held by the state court that even if there were a right of recovery on the part there were a right of recovery on the part of plaintiffs in error because a certain grant was in contravention of the Constitution of the United States, yet that such recovery was barred by the New York statute of limitations.

In Gillis v. Stinchfield, 159 U. S. 658, 40 L. ed. 295, 16 Sup. Ct. Rep. 131, and Speed v. McCarthy, 181 U. S. 269, 45 L. ed. 855, 21 Sup. Ct. Rep. 613, it was ruled that the application of the doctrine of estoppel to mining locations did not raise Federal questions.

In the present case, the supreme court of Louisiana applied the doctrine which forbids parties from assuming inconsistent positions in judicial proceedings.

The facts are stated in the opinion.
Messrs. Carlos S. Hardy and Laurence
G. Goodhart for plaintiff in error.
Messrs. Otto H. Droege and J. Lawrence
Friedmann for defendant in error.

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, and each party asserted title to the entire tract, the title to the 35.18 acres was alone in issue, and that the value of the whole tract was, therefore, not involved, and the railroad company having been thereby deprived of its writ of error, must be confined in this suit to the specific recovery obtained in that, so far as the effect of that judgment was concerned. That was a question of estoppel or quasi-estoppel, and not a Federal question. Whether it was sound or not, it is not for us to inquire. It was broad enough to support the judgment without reference to any Federal question. Writ of error dismissed.

(198 U. S. 508)

SUPREME LODGE, KNIGHTS OF PYTH-
IAS, Plff. in Err.,

v.

HENRIETTA MEYER.

Insurance-what law

1.

governs―error to state court-construction of state statute.

A certificate of insurance issued in Illinois to a resident of New York, which, by its

terms, was first to take effect as a binding

obligation when the insured should execute the agreement indorsed thereon to accept it "subject to all the conditions therein contained," is a New York, and not an Illinois contract, where New York was the state in

which the required agreement was executed. Whether the relation of physician and pa

2.

tient so existed as to exclude the former's

testimony, under N. Y. Code Civ. Proc. §§ 834, 836, involves a question of the construction of a state statute, on which the decisions of the highest state court will be accepted on a writ of error from the Supreme Court of the United States to that court.

[No. 234.]

Argued and submitted April 28, 1905. cided May 29, 1905.

Mr. Justice McKenna delivered the opinion of the court:

The plaintiff in error is a corporation organized under an act of Congress approved June 29, 1894. This action was brought against it by defendant in error as payee in a certain benefit certificate issued by it to Emanuel Meyer, husband of Henrietta Meyer, dated September 20, 1894, whereby it insured his life in the sum of $2,000. The defendant in error obtained judgment, which was successively affirmed by the appellate division and by the court of appeals of New York. The judgment of affirmance was entered in the supreme court, to which the case was remitted, and this writ of error was then sued out.

There are two questions in the case,-the place of the contract and the effect of the following provision in the certificate of in

surance:

"And I hereby, for myself, my heirs, assigns, representatives, and beneficiaries, expressly waive any and all provisions of law, now or hereafter in force, prohibiting or excusing excusing any physician heretofore or hereafter attending me professionally or otherwise, from disclosing or testifying to any information acquired thereby, or making such physician incompetent as a witness; and hereby consent that any such physician may testify to and disclose any information so derived or received in any suit or proceeding wherein the same may be material."

This provision takes pertinence from another, whereby "it is agreed that if death shall result by self-destruction whether sane or insane," the certificate "shall be null and void, and all claims on account of such memDe- bership shall be forfeited.”

The case was submitted for a special verdict on the question "Did Emanuel Meyer, the husband of the plaintiff, commit suicide?" The jury answered "No."

N ERROR to the Supreme Court of the State of New York to review a judgment 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 §§ 834 and Affirmed.

See same case below in Appellate Division of Supreme Court, 82 App. Div. 359, 81 N.

836 of the Code of Civil Procedure of the state. Section 834 forbids any physician "to disclose any information which he ac

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However, if the certificate of insurance is not an Illinois contract, all the questions which depend upon that become irrelevant. We think it is not an Illinois contract. Judge Gray, expressing the opinion of the court of appeals, disposed of the contention that the certificate of insurance is an Illinois contract briefly but completely. The learned judge said:

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 § 836 provides that § 834 applies "unless the provisions thereof are expressly waived upon the trial or examination by the patient. But a physician may, upon a trial or examination, disclose any information as to the mental or physical condition of a patient who is deceased, which he acquired in attending such patients professionally, except confidential communications and such facts as would tend to disgrace the memory of the patient, when the provisions of § 834 have been expressly waived on such trial or examination by the personal representatives of the deceased patient."

The court of appeals held that the physicians were "attending a patient in their professional capacity;" that the information that they acquired "was necessary to enable" them "to act in that capacity," and that their testimony was therefore properly excluded under §§ 834 and 836. The court also held that the certificate of insurance was a New York contract. Judge Gray and Chief Judge Parker concurred in the latter view, but dissented as to the application of the Code sections. Plaintiff in error contests both sections. The argument is that (1) it appears from the testimonium clause of the certificate of insurance that it was signed and sealed by plaintiff in error at Chicago, Illinois, and hence is an Illinois contract, and must be construed with regard to the law of that jurisdiction; and as there is no evidence of what that law is it must be assumed to be what the common law of the state is, and under that law the testimony of the physicians was admissible. (2) We quote counsel: "The attempted application of §§ 834 and 836 of the Civil Code of Procedure of the state of New York to the contract in the case at bar is a violation of the Federal Constitution."

These contentions may be said to have the same ultimate foundation, but regarding them as separate and independent, the first is based on the ground that plaintiff in error derived the right, from its contract with Meyer, to the testimony of the physicians, which right attended the contract in what ever forum suit upon the contract might be brought. This is certainly debatable. The general rule is that all matters respecting the remedy and admissibility of evidence depend upon the law of the state where the suit is brought.

Northern P. R. Co. v. Babcock, 154 U. S. 190, 38 L. ed. 958, 14 Sup. Ct. Rep. 978; Wilcox v. Hunt, 13 Pet. 378, 10 L. ed. 209; Pritchard v. Norton, 106 U. S. 124, 27 L. ed 104, 1 Sup. Ct. Rep. 102; Bank of the

"With respect to the first of these questions [that the legislation of New York impaired the obligation of the contract between plaintiff in error and Meyer] raised by the appellant, whatever other answers might be made to the applicability of the provision of the Federal Constitution relied upon, it is sufficient to say, now, that this contract was consummated in the state of New York, and is to be governed, in its enforcement, by the laws of that state. The beneficiary was a resident of this state, and there made his application for the insurance. The certificate, issuing upon the application, appears, from its language, only to have been signed by the officers of the defendant at Chicago, in the state of Illinois, on September 20th, 1894; but upon it was printed the following clause: 'I hereby accept this certificate of membership subject to all the conditions therein contained,' and that had the signature of the applicant, followed by the words, 'Dated at New York, this 28th day of September, 1894, attest: Louis Riegel, secretary section 2179, Endowment Rank, K. of P. By the terms of the certificate, the agreement of the defendant was subject not only to the conditions subscribed to by the member in his application, but 'to the further conditions and agreements hereinafter named;' and the clause containing his acceptance, above quoted, was one of those further agreements.' From these terms of the agreements of the parties the only natural conclusion is that the place of the contract was where it was intended, and understood, to be consummated. Its completion depended upon the execution by the member of the further agreement indorsed upon the certificate: namely, to accept it 'subject to all the conditions therein contained.' The contract was not completed, in the sense that it was binding upon either party to it, until it was delivered in New York, after the execution by the member of the further agreement expressing his unqualified acceptance of its conditions. As a matter of fact, the promise of the defendant was to pay the insurance moneys to the plaintiff, who resided in New York; a feature giving additional local coloring to the contract. But the sufficient and controlling fact is that, by 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 executed by him." [178 N. Y. 70, 64 L. R. A. 843, 70 N. E. 114.]

Y. 13, 58 N. E. 771, it was held that the statute, by virtue of the amendment, "in 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 state to enact the rule of evidence expressed in them. The case is in this narrow compass, and we need not further follow the details of the argument of counsel that the obligation of the contract of insurance was impaired. But we may observe that there is no question in the case of the validity or the enforcement of the provision in the certifi cate of insurance against suicide. It is only of the testimony offered to prove suicide. Plaintiff in error sought to prove it by the testimony of a physician, and the attempt encountered the New York Code and the questions we have discussed.

Plaintiff in error further contends that, as in writs of error to the circuit and district courts of the United States, we are not restricted to constitutional questions, so in writs of error to a state court, we may also decide all questions presented by the record, and that it is open for us to decide whether the relation of doctor and patient existed between one of the witnesses and Meyer. This is attempted to be made out by that part of § 709 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 575) which provides: "The writ [to the final judgment or decree of a state court] shall have the same effect as if the judgment or decree complained of had been rendered or passed in a court of the United States."

(198 U. S. 500)

AH SIN, Piff. in Err.,

v.

GEORGE W. WITTMAN, as Chief of Police of the City and County of San Francisco, California.

Constitutional law-validity of municipal ordinance against visiting barricaded gambling rooms-due process of lawequal protection of the laws.

1. A municipal ordinance which makes it un

2.

lawful to visit or resort to a barred or barricaded house or room where gambling implements are exhibited or exposed to view does not deprive anyone of his liberty without due process of law, even if it authorizes a conviction for an innocent visit to such a place.

Discrimination against Chinese persons in the administration of a municipal ordinance making it unlawful either to exhibit gambling implements in a barred or barricaded house or room or to visit such a house or room where gambling instruments are exhibited is not sufficiently shown to enable the Supreme Court of the United States to declare such ordinance void, as denying the equal protection of the laws, in reviewing the refusal of a state court to grant habeas corpus to one convicted of a violation of the ordinance, by a stipulation between the parties, recited in the order discharging the writ, that the facts are as set forth in the petition, where such petition merely avers that the ordinance is enforced "solely and exclusively against persons of the Chinese race, and not otherwise," and contains no allegation that the conditions and practices against which the ordinance is directed do not exist exclusively among the Chinese, or that there are other offenders, as to whom it is not enforced. [No. 245.]

However this may be, in cases like that at bar, we accept the construction the state. courts give to state statutes. It is manifest that the question submitted involves the construction of the state statute. Plaintiff in error is not helped by the decision in Foley v. Royal Arcanum, 151 N. Y. 196, 56 Am. 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 they then stood, and their subsequent amendment did not affect the waiver. But the certificate of insurance in the case at bar was made after the amendment to § 836. In

I

1905.

N ERROR to the Superior Court in and for the City and County of San Francisco, in the State of California, to review a

!

when three or more persons are present.

judgment discharging a writ of habeas cor- | whatsoever are exhibited or exposed to view pus to inquire into a conviction in the police court of that city for the violation of an ordinance making it unlawful to exhibit gambling implements in a barred or barricaded house or room, or to visit such a place where gambling implements are exhibited or exposed to view. Affirmed.

The facts are stated in the opinion.

"Sec. 3. Every person who shall violate any of the provisions of this ordinance shall be deemed guilty of misdemeanor, and upon conviction thereof shall be punished by a fine not to exceed five hundred ($500.00) dollars, or by imprisonment in the county jail for not more than six (6) months, or

Mr. George D. Collins for plaintiff in by both such fine and imprisonment.

error.

"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:

Error to the judgment of the superior court of the city and county of San Francisco, state of California, discharging a writ of habeas corpus.

Plaintiff in error filed a petition in said court, alleging that he was a subject of the Emperor of China, and was restrained of his liberty by defendant in error, who was the chief of police of the city and county of San Francisco, under a judgment of imprisonment rendered in the police court of said city for the violation of one of its ordinances. The ordinance is as follows: "Prohibiting the Exposure of Gambling Tables or Implements in a room Barred or Barricaded or Protected in Any Manner to Make It Difficult of Access or Ingress to Police Officers, When Three or More Persons Are Present; or the Visiting of a Room Barred and Barricaded or Protected in Any Manner to Make It Difficult of Access or Ingress to Police, in Which Gambling Tables or Implements Are Exhibited or Exposed, When Three or More Persons are Present.

"Be it ordained by the people of the city and county of San Francisco as follows:

"Sec. 1. It shall be unlawful for any person within the limits of the city and county of San Francisco to exhibit or expose to view in any barred or barricaded house or room, or in any place built or protected in a manner to make it difficult of access or ingress to police officers, when three or more persons are present, any cards, dice, dom

inoes, fan-tan table or layout, or any part of such layout, or any gambling implements

whatsoever.

"Sec. 2. It shall be unlawful for any person within the limits of the city and county of San Francisco to visit or resort to any such barred or barricaded house or room or other place built or protected in a manner to make it difficult of access or ingress to police officers, where any cards, dice, dominoes, fan-tan table or layout, or any part of such layout, or any gambling implements

corpus alleges that the ordinance violates § 1 of the 14th Amendment of the Constitution of the United States, in that it deprives plaintiff in error of the equal protec tion of the laws, because it is enforced solely and exclusively against persons of the | Chinese race, and in that it "unjustly and arbitrarily discriminates in favor of certain visitors, and also in favor of certain persons resorting to the house, room, or place referred to in said ordinance, as well as in favor of such persons and visitors as resort to or visit such house or room or place when not barred or barricaded or protected in a manner to make the same difficult of access or ingress to police officers." These objections, it is alleged, were made by him in the police court, and overruled.

The petition also alleges that plaintiff in error, is, by the ordinance, deprived of his liberty without due process of law, in that he is prohibited thereby from visiting, innocently and for a lawful purpose, the house or room or place mentioned in said ordinance.

It is also alleged that the ordinance is in contravention of the treaty between the

United States and China.

Upon filing the petition a writ of habeas corpus was issued, returnable before the court on the 22d of March, 1904, and petitioner admitted to bail in the sum of $10. The following is the order of the court dismissing the writ, and remanding the petitioner to custody:

"This matter came on regularly for hearing this 28th day of March, A. D. 1904, the

and the people being represented by the dispetitioner being represented by his counsel trict attorney; whereupon it was stipulated and agreed in open court by counsel for the people and by counsel for the petitioner that the facts are as set forth in the petition on file herein for the writ of habeas corpus. The cause was then argued by counsel on the points stated in the said petition, and was thereupon submitted to the court for its decision and judgment; and the court, being fully advised in the matter, does now,

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