was used to lift stones, swung the same over | there was a breach of duty on the part of the the plaintiff's head, and he was injured by employer in not having the vats fenced, a falling stone. The doctrine was invoked . . it seems to me that it must have in that case that the danger incident to the been a question of fact, and not of law, situation where the plaintiff was put at whether the plaintiff undertook the employ work was obvious, and that by continuing ment with an appreciation of the risk which to work in the presence of visible dangers arose on the occasion in question from the the plaintiff had agreed to assume that risk. particular nature of the work which he had The House of Lords, with only one dissent- to perform. If the effect of the judgment ing voice, held that the question whether the be that the mere fact that the plaintiff, plaintiff had undertaken to assume the risk, after he knew the condition of the premises, and for that reason was not entitled to re- continued to work and did not quit his emcover, was one of fact, and not of law, and ployment, afforded his employer an answer that this was so both at common law and in to the action, even though a breach of duty cases arising under the employer's liability on his part was made out, I am unable, for act of 1880, under which that case arose. the reasons I have given, to concur in the Some paragraphs of the decisions of the decision." learned judges who sat in that case in the House of Lords are pertinent here, and deserve to be quoted. For example, Lord Watson said (vide p. 355): "When, as is commonly the case, his acceptance or nonacceptance of the risk is left to implication, the workman cannot reasonably be held to have undertaken it, unless he knew of its existence and appreciated, or had the means of appreciating, its danger. But assuming that he did so, I am unable to accede to the suggestion that the mere fact of his continuing at his work with such knowledge and appreciation will in every case necessarily imply his acceptance. Whether it will have that effect or not depends, in my opinion, to a considerable extent upon the nature of the risk and the workman's connection with it, as well as upon other considerations which must vary according to the circumstances of each case." Farther on in his opinion the same learned judge observed: "In the circumstances of this case, the question whether he [the plaintiff] had accepted the risk is one of fact; there is no arbitrary rule of law which decides it." Lord Herschell observed (vide p. 362): "Whatever the dangers of the employment which the employed undertakes, amongst them is certainly not to be numbered the risk of the employer's negligence, and the creation or enhancement of danger thereby engendered. If then, the employer thus fails in his duty towards the employed, I do not think that because he does not straightway refuse to continue his service it is true to say that he is will ing that his employer should thus act towards him. I believe it would be contrary to fact to assert that he either invited or assented to the act or default which he complains of as a wrong, and I know of no principle of law which compels the conclusion that the maxim, Volenti non fit injuria, beomes applicable." Farther on in his opinion, when discussing the decision in Thomas v. Quartermaine, the same judge observed that if it was assumed in that case "that The same view of the question under discussion has been taken in this country. For example, in Fitzgerald v. Connecticut River Paper Co. 155 Mass. 155, 31 Am. St. Rep. 537, 29 N. E. 464, it appeared that an employce in a mill, who had worked there for thirteen years, and was familiar with all of the surroundings, in attempting to go down some steps which were covered with ice, fell and was seriously injured. The ice upon the steps was caused by exhaust steam from an engine which was run by the defendant company, which fell upon the steps and froze, and the plaintiff knew the steps to be icy and more or less slippery in the winter season, and that at the time she was hurt she was going down the steps with a dinner pail in one hand and holding onto the railing with the other. It was held by the supreme judicial court of Massachusetts, in an elaborate decision, that the question whether the plaintiff had assumed the risk in question was a question of fact for the jury, and that it could not be said, as a matter of law, that she appreciated the risk and agreed to assume it. Also in the case of Mahoney v. Dore, 155 Mass. 513, 30 N. E. 366, it appeared that the plaintiff, a servant girl, had fallen down a flight of steps in consequence of sleet and ice which had formed thereon because the defendant had suffered a skylight over the steps to become broken, thus permitting the sleet to form on the steps. It further appeared that the plaintiff had gone down the steps once before, that evening, and knew that they were slippery, and that when she fell she had hold of the railing and was trying to go down safely. The court held on this state of facts that the question whether the plaintiff had assumed the risk of injury by going down the steps, in their known icy condition, was properly submitted to the jury. See, also, to the same effect, Wuotilla v. Duluth Lumber Co. 37 Minn. 153, 5 Am. St. Rep. 832, 33 N. W. 551, where it was held She was com that the fact that a servant knows of the de- | fact appreciate the risk. tective condition of the instrumentalities paratively young, and at an age when with which he works does not necessarily charge him with contributory negligence or the assumption of the risks growing out of such defects, and that it is the right of a jury to determine these questions. See, also, Pennsylvania R. Co. v. Jones, 123 Fed. 753, 756; Thorpe v. Missouri P. R. Co. 89 Mo. 650, 662, 663, 58 Am. Rep. 120, 2 S. W. 3; Hamilton v. Rich Hill Coal Min. Co. 108 Mo. 364, 375, 376, 18 S. W. 977; Myers v. Hudson Iron Co. 150 Mass. 125, 134, 15 Am. St. Rep. 176, 22 N. E. 631; Ferren v. Old Colony R. Co. 143 Mass. 197, 200, 9 N. E. 60S. persons like her, in the course of their daily work, are not given to thoughts of lurking dangers. It is certain, I think, that she never thought of agreeing with her employer to assume the lurking danger to which she was in fact exposed, and to absolve her employer from all blame. The legislature, however, appreciated the danger which she and thousands of others like her might unwittingly ineur, and how they would naturally act,-permitting their employers to make such provision for their safety as they saw fit, neither making any complaints on that account, nor quitting their employI do not deny that there are cases where ment. It accordingly said to employers, some courts have held that the risk en- "You must cover machinery which may occountered by a servant in using a defective casion injury when you can do so easily, and implement or appliance was so obvious that thus protect your servants from unneceshe must have appreciated it fully, and for sary risks." If such a duty can be evaded that reason have declared that he assumed it; by voluntary agreements made by employbut I maintain that in case of a clear omissioners with their employees, and by impliof duty by an employer which has occasioned cation only, then the existence of such agreean injury, where an inference is to be drawn ments, when alleged, should be found by a from facts and circumstances that a servant | jury. In no other way, in my judgment, appreciated the risk incident thereto and will such statutes prove effective for the voluntarily agreed to assume it, the in- protection of human life. ference is essentially one of fact, and should This opinion has already been extended to be drawn by a jury, who are usually as well unusual length. It is of greater length acquainted as judges with the motives which than a dissenting opinion in a personal prompt human action, and who, in such injury case, or a majority opinion, for that cases as the one supposed, are quite as like-matter, ought to be. But the questions inly to form a correct conclusion. I have al- volved are important and will affect the ready remarked, and I repeat the thought, | rights of very many litigants, and on that that it is not at all improbable that the plaintiff in this case had never considered the fact that her hand might slip between these uncovered cogs and be crushed. I have little doubt that a jury of reasonable men would have found without hesitation that she had never foreseen that such an accident might happen, and hence did not in account I desire to place on record a plain statement of the reasons why I dissent from doctrines which seem to me to have been formulated with an eye mainly to the protection of employers and with too little regard for the situation and rights of employees. SUPREME COURT OF THE UNITED STATES. State of MISSOURI, ex rel. William Preston HILL, Plff. in Err., v. Alexander M. DOCKERY et al. (191 U. S. 165.) equalization of Missouri, which has laid a substantial tax upon corporations therein, is final under the Missouri Constitution and statutes. 2. A taxpayer who admits that his own tax is correct cannot, on the ground that he will be deprived of his property without due process of law, and denied the equal protection of the laws, contrary to the 14th 1. The judgment of a state board of I. The general rule, 572. II. Particular questions not reviewable. a. Non-Federal questions in general, 573. d. Questions not involved in the record, e. Questions of fact, 577. f. Miscellaneous, 578. III. The rule where constitutional rights are involved. a. Impairment of contract obligations, 578. b. Full faith and credit, 580. c. Due process of law, 581. d. Equal protection of the laws, 581. IV. Conclusion, 582. Holmes, J., delivered the opinion of the court: This is a writ of error to the supreme court of Missouri, upon a judgment quashing an alternative writ of mandamus to the state board of equalization. The petition alleges that the board, instead of assessing the total certain railroad, bridge, telephone, telegraph, actual cash value of the taxable property of and express companies, made pretended, fraudulent, inadequate, and not uniform assessments upon such property, at valuations varying from about a quarter to 48 per cent of the actual value, except that of the express companies, which they did not assess at all. It alleges that in this way the petitioner will be deprived of his property without due process of law, and will be denied the equal protection of the laws, contrary to the 14th Amendment of the Constitution of the Messrs. Edward C. Crow and Bruce United States. The motion to quash denied Barnett for defendants in error. 1. The general rule. From the beginning the Federal Supreme Court has uniformly been of the opinion that on writs of error to state courts the scope of its review was restricted to the correction of errors committed by those courts in the decision of Federal questions. Martin v. Hunter, 1 Wheat. 304, 4 L. ed. 97; Matthews V. Zane, 7 Wheat. 164, 5 L. ed. 425; Montgomery v. Hernandez, 12 Wheat. 129, 6 L. ed. 575; Wallace v. Parker, 6 Pet. 680, 8 L. ed. 543; Üdell v. Davidson, 7 How. 769, 12 L. ed. 907; Pollard v. Kibbe, 14 Pet. 353, 10 L. ed. 490; Doe ex dem. Barbarie v. Eslava, 9 How. 421, 13 L. ed. 200; Lytle v. Arkansas, 22 How. 193, 16 L. ed. 306. the jurisdiction of the supreme court of Mis County v. Iowa Falls & S. C. R. Co. 112 U. S. 165, 28 L. ed. 680, 5 Sup. Ct. Rep. 84; Richmond Min. Co. v. Rose, 114 U. S. 576, 29 L. ed. 273, 5 Sup. Ct. Rep. 1055; Renaud v. Abbott, 116 U. S. 277, 29 L. ed. 629, 6 Sup. Ct. Rep. 1194; Yick Wo. v. Hopkins, 118 U. S. 356, 30 L. ed. 220, 6 Sup. Ct. Rep. 1064; Hannibal & St. J. R. Co. v. Missouri River Packet Co. 125 U. S. 260, 31 L. ed. 731, 8 Sup. Ct. Rep. 874; Lent v. Tillson, 140 U. S. 316, 35 L. ed. 419, 11 Sup. Ct. Rep. 825; Cornell University v. Fiske, 136 U. S. 152, 34 L. ed. 427, 10 Sup. Ct. Rep. 775; Ashley v. Ryan, 153 U. S. 436, 38 L. ed. 773, 4 Inters. Com. Rep. 664, 14 Sup. Ct. Rep. 865; Grand Rapids & I. R. Co. v. Butler, 159 U. S. 87, 40 L. ed. 85, 15 Sup. Ct. Rep. 991; Central P. R. Co. v. California, 162 This view was clearly demanded by the pro- U. S. 91, 40 L. ed. 903, 16 Sup. Ct. Rep. 766; vision in the 25th section of the judiciary act Great Western Teleg. Co. v. Purdy, 162 U. S. of 1789, that no other error shall be assigned 329, 40 L. ed. 986, 16 Sup. Ct. Rep. 810; Gundor regarded as a ground of reversal than such ling v. Chicago, 177 U. S. 183, 44 L. ed. 725, as appears on the face of the record and im-20 Sup. Ct. Rep. 633; Forsyth v. Vehmeyer, 177 mediately respects the questions of the valid U. S. 177, 44 L. ed. 723, 20 Sup. Ct. Rep. 623; ity or construction of the Federal Constitution, treaties, statutes, commissions, or authorities in dispute. The omission of this restrictive clause from the act of February 5, 1867, § 2, which operated as a repeal of the original section, did not af fect this rule. Murdock v. Memphis, 20 Wall. 590, 22 L. ed. 429. And the rule is the same under the present statute (U. S. Rev. Stat. § 709, U. S. Comp. Stat. 1901, p. 575) from which is omitted the phrase, "in the same manner and under the same regulations," previously used in connection with the resemblance of this jurisdiction to that exercised over the inferior Federal courts, retaining on this point only the words: "The writ 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." Martin v. Marks, 97 U. S. 345, 24 L. ed. 940; Myrick v. Thompson, 99 U. S. 291, 25 L. ed. 324; McLaughlin v. Fowler, 154 U. S. 663, Appx. and 26 L. ed. 176, 14 Sup. Ct. Rep. 1192; Swope v. Leflingwell, 105 U. S. 3, 26 L. ed. 939; Allen v. McVeigh, 107 U. S. 433, 27 L. ed. 572, 2 Sup. Ct. Rep. 558; Buena Vista Yazoo & M. Valley R. Co. v. Adams, 180 C. The term "Federal question," as was pointed out in the note to Apex Transp. Co. V. Garbade, 62 L. R. A. 513, is constantly employed by the Federal Supreme Court to designate the controversy essential to support a writ of error from that court to the state court. The rule as established by the above decisions practically amounts, therefore, to a declaration that only such questions can be considered on a writ of error from the Federal Supreme Court to a state court as would, if standing alone in the case, support the writ of error. For a full review of this question the reader is referred to the note just mentioned. This doctrine does not preclude the Federal Supreme Court, where a right is set up in the state court under an act of Congress, from re "fraudulent" without more specific allegations of fact. State ex rel. Gottlieb v. Western U. Teleg. Co. 165 Mo. 502, 516, 517, 65 S. W. 775; State ex rel. Folk v. Talty, 166 Mo. 529, 560, 66 S. W. 361; Manchester v. Furnald, 71 N. H. 153, 158, 51 Atl. 657; Knight v. Thomas, 93 Me. 494, 45 Atl. 499; Maish v. Arizona, 164 U. S. 599, 611, 41 L. ed. 567, 571, 17 Sup. Ct. Rep. 193; Pittsburgh, C. C. & St. L. R. Co. v. Backus, 154 U. S. 421, 434, 438, 38 L. ed. 1031, 1039, 1040, 14 Sup. Ct. Rep. 1114. See Fogg v. Blair, 139 U. S. 118, 127, 35 L. ed. 104, 107, 11 Sup. Ct. Rep. 476. However this may be, the petitioner ad souri to issue the writ, and also the sufficiency of the grounds on which the writ was allowed. The court sustained the motion without an opinion or statement of reasons. For all that appears, the court may have quashed the writ on grounds of local practice. But if this consideration be laid on one side, it is impossible to say that the board of equalization has not acted with regard to those companies which it has assessed. It has laid substantial tax upon them. Its judgment is final under the Missouri Constitution and statutes. Mo. Const. art. 10, § 18; Rev. Stat. §§ 9344, 9356; Stat. 1901, p. 232. If, nevertheless, we assume that man-mitted at the argument that his own tax was damus would lie upon a clear case of fraud adequately alleged and proved (State Bd. of Equalization v. People, 191 Ill. 528, 539, 58 L. R. A. 513, 61 N. E. 339), it would be a strong thing to revise the judgment of the board on the strength of allegations of undervaluations, and the single adjective' examining, on writ of error to that court, any matter of law found in the record decided by that court bearing on the right. Republican River Bridge Co. v. Kansas P. R. Co. 92 U. S. 315, 23 L. ed. 515. And where jurisdiction to review a statecourt judgment has been acquired by the Supreme Court of the United States because such decision was adverse to a title claimed under an act of Congress, that court may look into the Spanish concession to plaintiff in error for the purpose of construing and applying the act of Congress on which the controversy depends. Chouteau v. Eckhart, 2 How. 344, 11 L. ed. 293; Pollard v. Kibbe, 14 Pet. 353, 10 L. ed. 490. So far as the judgment of a state court against the validity of an authority set up under the United States as a defense by officers of the United States necessarily involves the decision of a question of law, it presents a question for review by the Supreme Court of the United States, whether that question depends upon Federal or non-Federal law. McNulta v. Lochridge, 141 U. S. 327, 35 L. ed. 796, 12 Sup. Ct. Rep. 11; Stanley v. Schwalby, 162 U. S. 255, 40 L. ed. 960, 16 Sup. Ct. Rep. 754; Dushane v. Beall, 161 U. S. 513, 40 L. ed. 791, 16 Sup. Ct. Rep. 637. Etheridge v. Sperry, 139 U. S. 266, 35 L. ed. 171, 11 Sup. Ct. Rep. 565, furnishes an illustration of this rule. Here the Supreme Court of the United States, in reviewing the judgment of a state court in favor of chattel mortgagees, as against a United States marshal who took the goods on an attachment, apparently regarded the question whether such mortgages were valid as properly before it for determination, although, for the purposes of such determination, it accepted the settled law of the state as established by the decision of its highest court as decisive. correct, and that he would have had no case under the 14th Amendment if the companies had been exempted altogether. Magoun v. Illinois Trust & Sav. Bank, 170 U. S. 283, 293-295, 42 L. ed. 1037, 1043, 18 Sup. Ct. Rep. 594; Connolly v. Union Sewer Pipe Co. 184 U. S. 540, 562, 46 L. ed. 679, 690, 22 Sup. out suing in the name of the United States for his use cannot be examined by the Supreme Court of the United States on writ of error to the state court, where the plaintiff in error did not, and could not, claim any right, title, privilege, or exemption by or under the marshal's bond, or any act of Congress giving authority to sue the obligors for a breach of the condition. Montgomery v. Hernandez, 12 Wheat. 129, 6 L. ed. 575. Whether fees voluntarily paid to the United States shipping commissioner can be recovered back if no objection was made at the time to their payment is not a question of Federal law which can be reviewed on writ of error to a state court. Young v. American S. S. Co. 105 U. S. 41, 26 L. ed. 966. The Supreme Court of the United States on writ of error to the highest court of a state is bound by the decision of that court on a question of compliance with the state statute in relation to taxes, form of assessment, and oath of assessors. Palmer v. McMahon, 133 U. S. 660, 33 L. ed. 772, 10 Sup. Ct. Rep. 324. The decision of the state court upon the question whether a city, in taking part of a state canal for street purposes under a legislative grant, has acted in excess of such grant, and so violated its provisions as to render itself liable for damages on that account, is not reviewable on writ of error from the Supreme Court of the United States to that court. Fox v. Cincinnati, 104 U. S. 783, 26 L. ed. 928. It is not the province of the Supreme Court of the United States on error to a state court to inquire whether a compromise of a suit by a county against a railroad company was or was not in violation of the state laws. Mills County v. Burlington & M. River R. Co. 107 U. S. 557, 27 L. ed. 578, 2 Sup. Ct. Rep. 654. Or to inquire whether any fraud or excess of authority was committed by the agents of a county in making such a compromise. Ibid. II. Particular questions not reviewable. The decision by a state court that the pur a. Non-Federal questions in general. pose for which a corporation is formed is not lawful, or that the good faith of its officers is The question whether one not a party to a immaterial on the question of such legality, is marshal's bond given to the United States can a matter of local law, and is not reviewable by maintain a suit upon it in his own name with- the Supreme Court of the United States on writ Ct. Rep. 431. But his rights under that a partial exemption, and if it has done amendment turn on the power of the state, So, de facto, through its officers, the no matter by what organ it acts. Virginia v. petitioner cannot come here on an alRives, 100 U. S. 313, 318, 25 L. ed. 667, 669. legation that the officers acted as they did Therefore, if the supreme court of the state without the authority of the state. That, construed the statutes as exempting express again, is for the state court to decide. The companies from this tax, and substituting an- petitioner has no case under the Constitution other, as it is argued on behalf of the defend- of the United States, and nothing else is ants in error that the statutes do, the peti- open. This is a writ of error to a state tioner cannot complain here. For the legis- court, so that questions under the state Conlature could exempt them, and the question stitution and laws cannot be considered, as whether it has done so or not is for the state they might be on error to a subordinate court courts to decide in their construction of its of the United States. acts. Furthermore, if the state could Judgment affirmed. grant a total exemption it could grant of error. New Orleans Debenture Redemption | v. Minnesota, 176 U. S. 550, 44 L. ed. 583, 20 Co. v. Louisiana, 180 U. S. 320, 45 L. ed. 550, Sup. Ct. Rep. 485. 21 Sup. Ct. Rep. 378. The question whether a municipality, by re Error in the estimate of the amount of cap-fusing to hear objections to a public improveital stock employed by a foreign corporation ment, is estopped to collect any portion of the within the state, and subject to taxation therein, does not present a Federal question for the consideration of the Supreme Court of the United States on writ of error to a state court. New York v. Roberts, 171 U. S. 658, 43 L. ed. 323, 19 Sup. Ct. Rep. 58. Whether a person has a legal title to land is purely a local question, and is not reviewable in the Supreme Court of the United States on writ of error to a state court. Columbia Water Power Co. v. Columbia Electric Street R. Light & P. Co. 172 U. S. 475, 43 L. ed. 521, 19 Sup. Ct. Rep. 247. In reviewing a judgment of a state court which denied the validity of a pre-emption entry, the Supreme Court of the United States cannot interfere with so much of the decree as sustained the defense that defendants were bona fide purchasers, and entitled to protection as such. Lytle v. Arkansas, 22 How. 193, 16 L. ed. 306. The defense of the state statute of limitations has no connection with the title, and the Supreme Court of the United States cannot revise the state court's decree in that respect. Ibid. In reviewing a decision of a state court adverse to a title which depends upon the construction of a land law of the United States, the Supreme Court cannot take into consideration any distinct equities arising out of the contracts or transactions between parties, and creating a new and independent title, but is confined to an examination of the validity of the title under the statute in question. thews v. Zane, 7 Wheat. 164, 5 L. ed. 425. Mat The rights and disputes of riparian owners as to water which has found its way into the unimproved bed of the stream below a dam and canal owned and operated by the United States are questions which cannot be considered by the Supreme Court of the United States on writ of error to the state court. Green Bay & M. Canal Co. v. Patten Paper Co. 173 U. S. 179, 43 L. ed. 658, 19 Sup. Ct. Rep. 316. cost thereof from the objector, is purely a state question which cannot be reviewed by the Supreme Court of the United States on writ of error to a state court. Schaefer v. Werling, 188 U. S. 516, 47 L. ed. 570, 23 Sup. Ct. Rep. 449. The effect of a decision as to liability for taxes for a certain year as an estoppel in a case respecting taxes of a different year is not a Federal question which can be reviewed by the Supreme Court of the United States on writ of error to a state court. Yazoo & M. Valley R. Co. v. Adams, 180 U. S. 26, 45 L. ed. 408, 21 Sup. Ct. Rep. 282. Whether forcible abduction from a foreign country is a defense to a prosecution in a state court is a question which the United States Supreme Court cannot consider when reviewing the decision of a state court. Ker v. Illinois, 119 U. S. 436, 30 L. ed. 421, 7 Sup. Ct. Rep. 225. Questions merely of state practice are not reviewable on writ of error from the Federal Supreme Court to a state court. Buena Vista County v. Iowa Falls & S. C. R. Co. 112 U. S. 165, 28 L. ed. 680, 5 Sup. Ct. Rep. 84; Renaud v. Abbott, 116 U. S. 277, 29 L. ed. 629, 6 Sup. Ct. Rep. 1194; Long Island Water Supply Co v. Brooklyn, 166 U. S. 685, 41 L. ed. 1165, 17 Sup. Ct. Rep. 718; Scranton v. Wheeler, 179 U. S. 141, 45 L. ed. 126, 21 Sup. Ct. Rep. 48. Such are questions of evidence. Central P. R. Co. v. California, 162 U. S. 91, 40 L. ed. 903, 16 Sup. Ct. Rep. 766; Martin v. Marks, 97 U. S. 345, 24 L. ed. 940; Williams v. Norris, 12 Wheat. 117, 6 L. ed. 571. Error in the admission of evidence to establish the boundaries of a Spanish land grant confirmed by act of Congress cannot be reviewed in the Supreme Court of the United States on writ of error to a state court. But when evidence is admitted as competent for this purpose, and it is sought to give it effect for other purposes which involve questions over which the Supreme Court has jurisdiction, then the decision of a state court on the effect of such evidence may be considered and its No Federal question which can be considered judgment reversed or affirmed in a similar manby the Federal Supreme Court on writ of error ner as if a like question had arisen in the highto a state court is involved in the inquiry est court of a state when reviewing the prowhether a party has been given or refused the ceedings of inferior courts. Mackay v. Dillon, benefit of the law of estoppel. Weyerhaueser4 How. 421, 11 L. ed. 1038 |