name is not contained in the tariff act, but there are two paragraphs thereof which it is claimed do properly and sufficiently characterize and embrace natural gas, and they are in the free list, and are known as paragraphs 496 and 651. The language used in each, when taken in its popular and commonly received sense, or according to the sense in which it is used commercially, would cover and include the substance generally spoken of and loosely described as "natural gas."

The fact that it is not thus named in the act compelled the collector to assess it as a raw or unmanufactured article not enumerated,-a description which does not fit nearly so well as that which is contained in each of the paragraphs mentioned above. We think the evidence shows that natural gas is included in the language of one or both those paragraphs.

The rule is familiar that in the interpretation of laws relating to the revenues the words are to be taken in their commonly received and popular sense, or according to their commercial designation, if that differs from the ordinary understanding of the word. Two Hundred Chests of Tea, 9 Wheat. 430.

Mr. Justice Story, in that case, in delivering the opinion of the court, said: "The object of the duty laws is to raise revenue, and for this purpose to class substances according to the general usage and known denominations of trade. Whether a particular article were designated by one name or another in the country of its origin, or whether it were a simple or mixed substance, was of no importance in the view of the legislature. It did not suppose our merchants to be naturalists or geologists or botanists. It applied its attention to the description of articles as they derived their appellations in our own markets, in our domestic as well as our foreign traffic." See, also, Lutz v. Magone, 153 U. S. 105, 14 Sup. Ct. 777, and cases there cited.

Prior to 1890 natural gas had not been imported, although its existence in this country and in foreign countries was well known. After the passage of the tariff act of 1890, this corporation commenced its importation from Canada as stated. It appeared in the evidence that an analysis of the gas thus imported had been made by competent chemists, and it was found to contain methane, or marsh gas, to the extent of 95.6 per cent.; the balance being made up principally of hydrocarbons other than methane.

In the opinion of some of the witnesses the natural gas thus examined was a crude bitumen. It was stated "that bitumens are mixtures of hydrocarbons of various kinds, mixed with other materials in varying proportions. A crude bitumen, as found in nature, is mixed with other materials." It was also testified: That this natural gas contains 97.2 per cent. of natural hydrocarbon, and the balance of 2.8 per cent. is composed of sub

stances usually found with the hydrocarbons in crude bitumen. That the term "bitumen" does not refer to any substance of definite chemical composition, but is distinctively a generic term applied to a large number of natural substances, which consist largely or chiefly of hydrocarbons. These substances may be gaseous, as natural gas or marsh gas; fluid, as petroleum or naphtha; viscous, as the semifluid asphaltum; elastic, as elaterite, found in Utah and elsewhere; solid, as some forms of asphaltum and bituminous or anthracite coal. That the common compositions of crude bitumen are naturally classified as above stated. The deposits of bitumen occur in various portions of the earth's crust. They differ naturally in appearance, in consistency, in various physical and chemical properties, but they are everywhere found to consist essentially of hydrocarbons, and they are correctly designated as "crude bitumens." That natural gas should be designated as a crude bitumen was the opinion of some of the wit

nesses.

Evidence on the part of the government was given by witnesses who were connected with the government geological survey, and their evidence would tend to show that the word "minerals," in the mineralogical sense of the word, almost invariably refers to solids; that, in the mineralogical definition, gases would not be included, but that there was a wider definition, which according to some authorities includes all the constituents of the earth's crust, and that would include gases. It was also stated that, if a scientific man wants to be precise, he confines his use of the term "mineral" to a certain homogeneous substance, a chemical entity, having a definite composition, just as the mineralogist does, but nevertheless minerals are both solids and liquid, according to most definitions, and that some authorities include gases among minerals, and others exclude them.

*One witness for the government said that, if you exclude from the mineral kingdom the gases included in the atmosphere, you must set up some fourth class of substances,-the division being, generally, the vegetable kingdom, the animal kingdom, and the mineral kingdom; but no such fourth division is ordinarily designated, and the constituents of the atmosphere are not vegetable, and they are not animal, and ordinarily they are included in the mineral kingdom.

We think the evidence in this case shows that, within the language of paragraph €51 of the act of congress, interpreting that language in accordance with the rule above mentioned, natural gas would fairly come under the head of a crude mineral, if there were no more limited classification in the act, but that the classification as crude bitumen is more limited; and we are of opinion that, upon the evidence, natural gas is properly thus described. If it be within the more specific classification, it would be controlled thereby. It is not important in this case to

conclusively decide which classification covers it, because both are on the free list. As the gas is described in one or both of the paragraphs, it cannot come under section 4 of the act, which provides for the levy, collection, and payment on the importation of all raw or unmanufactured articles, not enumerated or provided for in the act, a duty of 10 per centum ad valorem.

The judgment of the circuit court of the United States for the Northern district of New York was right, and should be affirmed.

(172 U. S. 425) CAPITAL NAT. BANK OF LINCOLN. NEB., et al. v. FIRST NAT. BANK OF CADIZ, OHIO.

COURTS

(January 3, 1899.)

No. 72.

FEDERAL QUESTION IN STATE COURT-
REVIEW BY SUPREME COURT.

1. The United States supreme court will not review the judgment of a state court on the ground of a denial by the latter court of a right under a statute of the United States, unless the record shows, either by words used or by clear and necessary intendment therefrom, that the right was specifically claimed, or a definite issue as to the possession of the right is distinctly deducible from the record, without an adverse decision of which the judg ment could not have been rendered.

2. The assertion of a federal question after judgment of the highest court of the state on an application to it for a rehearing comes too late to justify the interposition of the United States supreme court.

3. Where the record discloses no federal right asserted in terms, and no such right in issue and necessarily determined, in the state court. the ground assigned on a motion for a new trial that the judgment is "contrary to law" cannot be construed as having a single meaning, and distinctly referring to the denial of such a right, so as to authorize a review of the judgment by the United States supreme court on writ of error as provided by Rev. St. U. S. § 709.

4. Where, in a suit in a state court against a national bank and its receiver to recover money in the latter's hands claimed to have been held by the bank as a trust fund, no right to appropriate trust funds was claimed by defendants under any law of the United States, and no claim was made by them that any judgment which might be rendered for plaintiff would contravene any provision of the banking act, and the court merely adjudged that the money constituted a trust fund, to which plaintiff was entitled, no federal question is involved, so as to authorize a review of the judgment by the United States supreme court under Rev. St. U. S. § 709.

In Error to the Supreme Court of the State of Nebraska.

*This was an action brought by the First National Bank of Cadiz, Ohio, against the Capital National Bank of Lincoln, Neb., and Macfarland, the receiver thereof, in the district court of Lancaster county, Neb.

The petition contained five counts for moneys belonging to plaintiff received by defendant from notes transmitted to it for coltection and remittance.

Each of the counts concluded thus:

"Plaintiff further says that on or before the 21st day of January, 1893, the said defendant bank then and there became, and for some time prior thereto had been, insolvent, and that under and in pursuance of the laws of the United States the said defendant Macfarland was duly appointed, and is now acting, as a receiver thereof, and that all the assets and, trusts in and belonging to said bank and the beneficiaries thereof* passed into the posses-sion of, and are now held by, the said Macfarland for the said bank, and all trusts or moneys held or obtained by said bank in a fiduciary capacity passed into the hands of said defendant Macfarland, and he now holds the same in the same capacity that the said bank did before he took possession thereof.

"That in the collection of said note the said Capital National Bank was acting as the agent of this plaintiff for the purpose aforesaid, and the money so collected was the property of and belonged to this plaintiff; that said amount so collected never was a part of the assets of said bank, and never belonged to the stockholders thereof; that whether or not said amount was ever mixed or mingled with the true assets of said bank plaintiff is unable to state, but does allege that, if the same was mixed or mingled with the assets of said bank, the same was done wrongfully and fraudulently by the officers of said bank, and without the knowledge or consent of this plaintiff; that a part of the business and powers of said bank was the collection and remittance of moneys for persons and corporations; and that the said defendant bank was acting as agent for that purpose, as herein before alleged."

The prayer was "that an account may be taken of the trust funds to which the plaintiff may be entitled, and that a decree be entered against the said Capital National Bank and the said John D. Macfarland, directing the payment or delivery to plaintiff of the amount of said collections, and that the said amount be decreed to be a trust fund in the hands of said bank and receiver, to be first paid to this plaintiff, together with interest thereon, as damages, out of any money that may have passed to or afterwards come into the possession of said bank or receiver as a preferred or special claim, and that plaintiff may have such other or further relief as in equity it may be entitled to."

Macfarland having resigned the receivership, Hayden was appointed to succeed him, and filed an answer (stating preliminarily that he answered "as well for the said defendant bank as for and on his own account as re-, ceiver thereof"), admitting the insolvency of the defendant bank, the appointment of Macfarland as receiver, and his taking possession of the bank, "with, ail and singular, its rights, credits, effects, trusts, and duties," and setting up his own subsequent appointment. With the exception of the admissions, the auswer amounted to a general denial, there being a special denial of the receipt or collec

tion by the bank or the receiver of the note mentioned in the first count.

The cause came on for hearing, and, after the default of the bank was taken and entered, was tried by the court, which made certain findings of fact, and entered the following judgment: "It is, therefore, considered, ordered, adjudged, and decreed by the court that the said plaintiff, the First National Bank of Cadiz, Ohio, do have and recover of and from the said defendant the Capital National Bank of Lincoln, Nebraska, the amount of the trust fund herein before found to belong to plaintiff, to wit, eight thousand and fifty ($8,050) dollars, with interest thereon at the rate of seven per cent. per annum from January 20, 1893, principal and interest amounting to the sum of eight thousaud and seven hundred twenty-two and 95/100 ($8,722.95) dollars at the date of this decree. And it is further ordered, adjudged, and decreed by the court that the said defendant Kent K. Hayden, receiver of the said defendant the Capital National Bank, be, and he is hereby, ordered to pay the plaintiff the amount of said trust fund in his hands, as herein before found, to wit, the sum of eight thousand and fifty dollars, together with seven per cent. interest thereon from January 20, 1893, as damages for the detention thereof, the said principal and interest at the date of this decree amounting to the sum of eight thousand seven hundred twenty-two and 95/100 ($8,722.95) dollars, out of any money now in his hands, or that may come into his hands, as such receiver; that when said money, or any part of it, is paid under this order, the same shall apply on the above judgment against said defendant bank; that the said defendant bank and said defendant Hayden pay the costs of this action, taxed at $50.03.” Thereupon the defendant bank, "by Kent K. Hayden, its receiver," moved for a new trial on these grounds: "(1) The judgment is not sustained by sufficient evidence. (2) The judgment is contrary to law. (3) Errors of law occurring at the trial, duly excepted to. (4) There is error in the assessment of the amount of recovery, in this: that the judgment allows the plaintiff interest on his claim from and after the failure of the Capital National Bank." The motion was overruled, a bill of exceptions duly taken, and the cause carried to the supreme court of Nebraska on error.

The application to that court for the writ of error assigned 27 errors. Some of these asserted that certain enumerated findings of fact were not "sustained by the law," and the 21st, 22d, 23d, 24th, 25th, 26th, and 27th

were:

"(21) The court erred in rendering judgment against the plaintiff in error for interest upon the amounts collected by the plaintiff in error for the defendant in error.

"(22) The court erred in rendering judg ment against the plaintiff for the costs.

"(23) The court erred in holding that money

collected by the Capital National Bank was a trust fund in the hands of the receiver for the benefit of the defendant in error.

"(24) The court erred in rendering judg ment against the plaintiff in error for the full amount of the notes collected by the Capital National Bank.

"(25) The court erred in rendering a judgment which had the effect of making the defendant in error a preferred creditor over the other creditors of the Capital National Bank.

"(26) The court erred in ordering that the amount of the judgment should be paid out of any money then in the hands, or that might thereafter come into the hands, of the plaintiff in error.

"(27) The court erred in rendering a judgment which would become a lien upon all the assets of the Capital National Bank."

The supreme court affirmed the judgment of the district court (69 N. W. 1151), and, its judgment having been entered, the receiver applied for a rehearing, assigning five reasons therefor, of which the fifth was as follows: "Because said judgment and decree of said district court so affirmed by said judgment and decree of this court adjudged the amount found due the plaintiff therein to be* a lien upon the property and assets now in the possession of the appellant, or which shall hereafter come into his possession, and to be paid out of the proceeds thereof in preference and priority to other creditors of said bank, and is in violation of the provisions of the national bank act of the United States, under whose authority this appellant was appointed and is acting."

The petition for rehearing was denied, and thereafter this writ of error was allowed.

After the case had been docketed, the death of Hayden was suggested, and the appearance of John W. McDonald, appointed his successor as receiver, was entered.

A. E. Harvey and John H. Ames, for plaintiffs in error. N. C. Abbott, for defendant in error.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

The writ of error from this court to revise the judgment of a state court can only be maintained when within the purview of section 709 of the Revised Statutes.

If the denial by the state court of a right under a statute of the United States is relied on as justifying our interposition, before it can be held that the state court thus disposed of a federal question the record must show, either by the words used, or by clear and necessary intendment therefrom, that the right was specifically claimed, or a definite issue as to the possession of the right must be distinctly deducible from the record, without an adverse decision of which the judgment could not have been rendered.

Moreover, even though a federal question

may have been raised and decided, yet if a question not federal is also raised and decided, and the decision of that question is sufficient to support the judgment, this court will not review the judgment.

*In our opinion no federal right was specially set up or claimed in this case at the proper time or in the proper way, nor was any such right in issue and necessarily determined, but the judgment rested on nonfederal grounds entirely sufficient to support it.

The record discloses no federal question asserted in terms, save in the application to the supreme court for a rehearing, when the suggestion came too late.

The petition did, indeed, allege that the Capital National Bank was organized under the banking act, and that a receiver was appointed, who took possession of the bank's assets, and of all trusts and moneys held by it in a fiduciary capacity, and the answer admitted these averments, respecting which there was no controversy; yet no right to appropriate trust funds was claimed by defendant under any law of the United States, nor was it asserted that any judgment which might be rendered for plaintiff would be in contravention of any provision of the banking act.

The motion for new trial pursued a common formula, and one of the grounds assigned was that the judgment was "contrary to law"; but this cannot be construed as having a single meaning, and distinctly referring to the denial of a right claimed under an act of congress, consistently with the requirements of section 709 of the Revised Statutes, as expounded by numerous decisions of this court.

Bank v. Kennedy, 167 U. S. 362, 17 Sup. Ct. 831, is not to the contrary, as counsel seem to suppose. There the question was whether a national bank could purchase or subscribe to the stock of another corporation; and the answer averred that, if the stock in question appeared to have been issued to the national bank, it was "issued without authority of this corporation defendant, and without authority of law." The grounds presented on motion for new trial, and in the specifications of error which formed the basis of the appeal to the supreme court of the state, asserted the want of power under the laws of the United States; and the California supreme court said in its opinion that the bank appealed on the ground "that, by virtue of the statutes under which it is organized, it had no power to become a stockholder in another corporation." The general rule was not questioned that, if the alleged right was not claimed before judgment in the highest court of the state, it could not be asserted in this court.

This rule was not complied with here, nor was any federal question in terms decided, while on the contrary the judgment was explicitly rested on nonfederal grounds.

The contention of plaintiff was that the

Capital National Bank had money in its hands which belonged to plaintiff, did not belong to the bank, had never formed part of its assets, and was held by the bank in trust for plaintiff.

The right to the money was considered by the trial court in the light of general equitable principles applicable on the facts, and the court adjudged that the money consti. tuted a trust fund to which plaintiff was entitled.

The decision did not purport to affect the assets of the bank, or attempt to direct the distribution thereof, or in any way to interfere with the disposition of assets actually belonging to the bank; nor did it affect the receiver as receiver, or his appointment or authority under the banking act. As the trial court found that certain moneys held by the bank in trust for plaintiff had come into the receiver's hands, he was directed to return them, for he had no stronger title to the trust fund as against the plaintiff than the bank had.

When the case came to the supreme court, that court, finding no reversible error in the record, affirmed the judgment of the district court, and filed an opinion (49 Neb. 795, 69 N. W.1151) stating: "This case is of the same general nature as Capital Nat. Bank v. Coldwater Nat. Bank, 49 Neb. 786, 69 N. W. 115. It was submitted upon the same argument, and, governed by the result reached in that case, this is affirmed." From the opinion in the case thus referred to, it appears that that case, now on our docket, and numbered 73, was submitted to the supreme court of Nebraska with this case, numbered 72, and with three others, also brought here, and numbered 74, 75, and 76, and that the five cases were disposed of by the opinion in No. 73.

The supreme court there held that: "A fund which comes into the possession of a bank with respect to which the bank had but a single duty to perform, and that is to deliver it to the party thereto entitled, is a trust fund, and is therefore incapable of being commingled with the general assets of such bank subsequently transferred to its receiver.

"Under the circumstances above indicated, the receiver of the bank is merely substituted as trustee, and its funds in his hands should be devoted to discharging such trust before distribution thereof is made to the general creditors of the bank."

Among other things, the court said: "It is conceded by the plaintiff in error that the relief granted by the district court was in conformity with the views expressed more or less directly by this court in Wilson v. Coburn, 35 Neb. 530, 53 N. W. 466; Association v. Morris, 36 Neb. 31, 53 N. W. 1037; Griffin v. Chase, 36 Neb. 328, 54 N. W. 572; and State v. State Bank, 42 Neb. 896, 61 N. W. 252; but it is urged that a re-examination of the principles involved should satisfy us that these cases proceeded upon an erroneous view

433

433

of the law as now settled. A very careful examination has been made of all cases cited in respect to the pivotal question which has already been sufficiently indicated as having been acted upon by the district court." And after reviewing these cases the court announced that it was not convinced that it should recede from the line of its former decisions.

We know of no provision of the banking act which assumes to appropriate trust funds in the possession of insolvent banks, or other property in their possession to which they have no title, and it is clear that the state courts had jurisdiction to determine whether this money was or was not a trust fund belonging to plaintiff.

The receiver made no effort to remove the litigation to the circuit court, contested the issues on a general denial, and set up no claim of a right under federal statutes withdrawing the case from the operation of general law.

In these circumstances the result is that this court has no jurisdiction to revise the judgment of the supreme court of Nebraska, and we, necessarily, intimate no opinion in respect of the views on which the case was disposed of.

1. An answer in a suit in a state court to foreclose a lien created by a reassessment, alleging that the notice of reassessment was insufficient, and that by reason thereof defendant's property was sought to be taken without due process of law, and in conflict with the terms of the fourteenth amendment, raises a federal question, so as to give the supreme court jurisdiction.

2. Notice of a reassessment on abutting property for a street improvement, under Laws Wash. 1893, p. 226, § 4, providing that it shall be given by three successive publications in the official newspaper of the city, and that objections thereto may be filed within 10 days of the last publication, is not so short as to amount to want of due process in allowing but 10 days for presenting objections.

In Error to the Supreme Court of the State of Washington.

Prior to February 16, 1891, there were in the state of Washington two cities, known as "Whatcom" and "New Whatcom." On that date they were consolidated in conformity with the general laws of the state, the consolidated city taking the title of the "City of New Whatcom." In July, 1890, and prior to the consolidation, New Whatcom ordered the improvement of Elk street, between Elk street east and North street. The contract therefor was let in August, 1890. The contract was completed and the improvement accepted by

The

the city, and in October, 1890, an assessment was levied upon the abutting property. After the consolidation, the present city of New Whatcom commenced several suits in the superior court of Whatcom county against various defendants owning lots abutting on the improvement, and sought to obtain decrees foreclosing the liens created by the assessment. On January 13, 1894, the superior court entered decrees annulling the assessment, and these decrees were affirmed by the supreme court of the state on February 14, 1895. ground of the decision was, as stated by the trial court in its conclusions of law, "that said assessments were not made or apportioned in accordance with the benefits received by the property, but were made upon an arbitrary rule, irrespective of the benefits." On March 9, 1893, the legislature passed a general act providing for the reassessment of the cost of local improvements in case the original assessment shall have been or may be directly or indirectly set aside, annulled, or declared vold by any court. Laws Wash. 1893, p. 226.

Sections 4, 5, and 8 bear upon the matter of notice, and are as follows:

"Sec. 4. Upon receiving the said assessment roll the clerk of such city or town shall give notice by three (3) successive publications in the official newspaper of such city or town, that such assessment roll is on file in his office, the date of filing of same, and said notice shall state a time at which the council will hear and consider objections to said assessment roll by the parties aggrieved by such assessment. The owner or owners of any property which is assessed in such assessment roll, whether named or not in such roll, may within ten (10) days from the last publication provided herein, file with the clerk his objections in writing to said assessment. *Sec. 5. At the time appointed for hearing objections to such assessment the council shall hear and determine all objections which have been filed by any party interested, to the regularity of the proceedings in making such reassessment and to the correctness of the amount of such reassessment, or of the amount levied on any particular lot or parcel of land; and the council shall have the power to adjourn such hearing from time to time, and shall have power, in their discretion, to revise, correct, confirm or set aside, and to order that such assessment be made de novo, and such council shall pass an order approving and confirming said proceedings and said reassessment as corrected by them, and their decision and order shall be a final determination of the regularity, validity and correctness of said reassessment, to the amount thereof, levied on each lot or parcel of land. If the council of any such city consists of two houses the hearing shall be had before a joint session, but the ordinance approving and confirming the reassessment shall be passed in the same manner as other ordinances."

"Sec. 8. Any person who has filed objections to such new assessment or reassessment, as