but such as it is, it is competent to be laid [314] *In People v. Cleveland, 107 Mich. 367, 65 So, in Angley v. State, 35 Tex. Crim. Rep. | 12, the night preceding the shooting, whether Corbett roomed with Fitzpatrick in the latter's cabin, and whether witness saw anyone else in the cabin besides Brooks and Corbett. The court permitted this upon the theory that it was competent for the prosecution to show every movement of the prisoner during the night, the character of his dress, the places he had visited, and the company he had kept. Where an accused party waives his constitutional privilege of silence, takes the stand in his own behalf and makes his own statement, it is clear that the prosecution has a right to cross-examine upon such statement with the same latitude as would be exercised in the case of an ordinary witness, as to the circumstances connecting him with the alleged crime. While no inference of guilt can be drawn from his refusal to avail himself of the privilege of testifying, he has no right to set forth to the jury all the facts which tend in his favor without laying himself open to a cross-examination upon those facts. The witness having sworn to an alibi, it was perfectly competent for the government to cross-examine him as to every fact which had a bearing upon his whereabouts upon the night of the murder, and as to what he did and the persons with whom he associated that night. Indeed, we know of no reason why an accused person who takes the stand as a witness should not be subject to cross-examination as other witnesses are. Had another witness been placed upon the stand by the defense, and sworn that he was with the prisoner at Clancy's and Kennedy's that night, it would clearly have been competent to ask what the prisoner wore, and whether the witness saw Corbett the same night or the night before, and whether they 4. Error is also assigned in not restricting were fellow *occupants of the same room.[316] the cross-examination of the plaintiff in er- While the court would probably have no pow. Defendant himself was the only wit-er of compelling an answer to any question, ness put upon the stand by the defense, who a refusal to answer a proper question put was connected with the transaction; and he was asked but a single question, and that related to his whereabouts upon the night of the murder. To this he answered: "I was up between Clancy's and Kennedy's. I had been in Clancy's up to about half-past twelve or one o'clock-about one o'clock, I guess. I went up to Kennedy's and had a few drinks with Captain Wallace and Billy Kennedy, and I told them I was getting kind of full and I was going home, and along about quarter past one Wallace brought me down about as far as Clancy's, and then he [315]took me down to the cabin and left me in the cabin, and we wound the alarm clock and set it to go off at six o'clock, and I took off my shoes and lay down on the bunk and woke up at six o'clock in the morning, and went up the street." ror. upon cross-examination has been held to be a proper subject of comment to the jury (State v. Ober, 52 N. H. 459); and it is also held in a large number of cases that when an accused person takes the stand in his own behalf, he is subject to impeachment like other witnesses. If the prosecution should go farther and compel the defendant, on cross-examination, to write his own name or that of another person, when he had not testified in reference thereto in his direct examination, the case of State v. Lurch, 12 Or. 99, 6 Pac. 408, is authority for saying that this would be error. It would be a clear case of the defendant being compelled to furnish original evidence against himself. State v. Saunders, 14 Or. 300, 12 Pac. 441, is also authority for the proposition that he cannot be compelled to answer as to any facts not relevant to his direct examination. On cross-examination the government was permitted, over the objection of defendant's 5. Error is also assigned to the action of counsel, to ask questions relating to the wit- the court in permitting the government to ness's attire on the night of the shooting, call and examine witnesses in rebuttal with to his acquaintance with Corbett, whether respect to the effect of light from the flash Corbett had shoes of a certain kind, whether of a revolver, and whether such light would witness saw Corbett on the evening of March be sufficient to enable a person firing the re volver to be identified. One of the witnesses, There was no error committed upon the sued that the decree of the court of appeals [817]*Ex parte UNION STEAMBOAT COM tion company, as trustees for the underwrit PANY, Petitioner. (See S. C. Reporter's ed. 317-320.) Mandamus-to compel obedience to mandate 1. 2. The decision by an inferior court upon any matter left open by the mandate and opinlon of a higher court can be reviewed only upon a new appeal, and not by mandamus. A question as to the recoupment of one half the damages to a cargo from a molety of damages awarded to one of the vessels in collision, if not raised or passed upon on an appeal which directs a decree for a division of the damages between the vessels which are held to be in fault, remains open for determination by the lower court under a mandate to enter a decree in conformity to the opinion on appeal. Statement by Mr. Justice Brown: [317] *This was a petition for a writ of mandamus to the district court for the eastern district of Michigan, commanding it to set aside a decree entered in the case of The New York, 175 U. S. 187, anti, 126, 20 Sup. Ct. Rep. 67, and enter a decree dividing the damages equally, so that petitioner would not be decreed to pay more than one half the total damages arising out of the collision between the New York and the Conemaugh, with interest thereon not exceeding 5 per cent per annum. Upon the opinion of this court in the case of the New York being filed, a mandate is NOTE. As to mandamus to inferior tribunal -see State ex rel. Bayha v. Kansas City Ct. of Appeals (Mo.) 3 L. R. A. 476, and note. As to mandamus in aid of appeal-see note to Lewis v. Baltimore & L. R. Co. 10 C. C. A. 450. As to mandamus, when the proper remedy and when not-see note to United States ex rel. International Contracting Co. v. Lamont, 39 L. ed. U. S. 303; M'Cluny v. Silliman, 4 I. ed. U. S. 263. ers and owners of the cargo of the Conemaugh, not intervening, suffered damages in the sum of $19,627.67; that, as owner of the propeller, it had suffered damages in the sum of $30,508.46. aggregating the sum of $50,136.13; that the transportation company recover of the petitioner one half of $50.136.13, less one half the sum of $19,841.56, decreed to be paid to the intervening petitioners, etc. decree; refused to permit the petitioner to The court, however, declined to enter this recoup any sum that it might pay to the owners or underwriters of the cargo of the Conemaugh, from any sum that was due from the steamboat company for damages sustained by the Conemaugh, so that such company was compelled to pay of the total damages about 76 per cent instead of 50 per cent thereof. Messrs. C. E. Kremer, H. C. Wisner, F. C. Harvey, and O. W. Johnson submitted the cause for petitioner. Messrs. Harvey D. Goulder, and F. S. Masten submitted the cause for respondent. Mr. S. H. Holding was with them on the brief. Mr. Frank H. Canfield submitted the cause for intervening underwriters. *Mr. Justice Brown delivered the opin-[318] ion of the court: Petitioner applies for this writ of mandamus upon the ground that the district court refused to enter a decree in conformity with the opinion of this court dividing the damages. but in effect entered a decree imposing upon the Union Steamboat Company, the petitioner, about 76 per cent of the damages occasioned by the collision. The duty of an inferior court upon receiv ing the mandate of this court is nowhere better described than by Mr. Justice Baldwin in an early case upon that subject (Sibbald v. United States, 12 Pet. 488, 492, 9 was before the court, and is disposed of, L. ed. 1167, 1169): "Whatever," said he, is considered as finally *settled. The infe-[319] rior court is bound by the decree as the law of the case, and must carry it into execution according to the mandate. They cannot It is equally well settled, however, that such writ, as a general rule, lies only where there is no other adequate remedy, and that it cannot be availed of as a writ of error. Re Pennsylvania Co. 137 U. S. 451, 34 L. ed. 738, 11 Sup. Ct. Rep. 141; Re Morrison, 147 U. S. 14, 26, 37 L. ed. 60, 65, 13 Sup. Ct. Rep. 246; Ex parte Des Moines & M. R. Co. 103 U. S. 794, 26 L. ed. 461; Ex parte Baltimore & O. R. Co. 108 U. S. 566, 27 L. ed. 812, 2 Sup. Ct. Rep. 876; Re Atlantic City R. Co. 164 U. S. 633, 41 L. ed. 579, 17 Sup. Ct. Rep. 208. The inferior court is jus tified in considering and deciding any question left open by the mandate and opinion of this court, and its decision upon such matter can only be reviewed upon a new appeal to the proper court (Re Sanford Fork & Tool Co. 160 U. S. 247, 256, 40 L. ed. 414, 416, 16 Sup. Ct. Rep. 291); and the opinion of this court may be consulted to ascertain exactly what was decided and settled. West v. Brashear, 13 Pet. 51, 10 L. ed. 350; Wayne County Supers. v. Kennicott, 94 U. S. 498, 24 L. ed. 260; Gaines Rugg, 148 U. S. 228, 238, 244, 37 L. ed. 432, 435, 437, 13 Sup. Ct. Rep. 611; Re Sanford Fork & Tool Co. 160 U. S. 247, 256, 40 L. ed. 414, 416, 16 Sup. Ct. Rep. 291. The libel in this case was for a collision [320]between the Conemaugh and the New York. The only questions decided were as to the respective faults of the two vessels, and the claim of the underwriters upon the Conemaugh's cargo, that they were entitled to a recovery to the full amount of their damages against the New York, notwithstanding V. the Conemaugh was also in fault for the collision. This claim was sustained, and directions given to enter a decree in conformity to the opinion of this court. Such decree was entered, dividing the damages between the two vessels, and awarding to the underwriters of the cargo a full recovery against the New York. It may be true that the decree holds the New York liable for 76 per cent of the entire damages, and not 50 per cent, but this results from the fact that she was primarily held for the entire value of the cargo. The equal division applied only to the vessels, and, upon the other hand, if petitioner be entitled to the recoupment claimed, it would apparently result in an affirmative decree in its favor. But no question of recouping one half of such damages to the cargo from the moiety of damages awarded the Conemaugh was made by counsel or passed upon by this court. It is now insisted that, under the cases of The Chattahoochee, 173 U. S. 540, 43 L. ed. 801, 19 Sup. Ct. Rep. 491; and The Albert Dumois, 177 U. S. 240, ante, 751, 20 Sup. Ct. Rep. 595, this should have been done. This may be so; but it is an entirely new question, quite unaffected by the case of the New York, and if the court erred in refusing to allow such recoupment, the remedy is by appeal, and not by mandamus. Perhaps a mandamus might lie to review the allowance of interest, but that may also be considered on appeal. No disobedience of the mandate having been shown, the petition must be denied. JOHN M. WHEELER et al., Plffs. in Err.,[321] v. NEW YORK, NEW HAVEN, & HARTFORD RAILROAD COMPANY. (See S. C. Reporter's ed. 321-326.) Error to state court-Federal question—constitutionality of taking of land, to abolish grade crossing-due process of law. 1. A claim that property is taken without due process of law when condemned under a special statute for the abolition of grade crossings, because the act authorizes an increase NOTE.-48 to jurisdiction of Federal over state courts; necessity of Federal question see notes to Hamblin v. Western Land Co. 37 L. ed. U. S. 267: Kipley v. Illinois ex rel. Akin, 42 L. ed. U. S. 998. As to what is a Federal question; when considered-see note to Re Buchanan, 39 L. ed. U. S. 884. As to what constitutes due process of lawsee Kuntz v. Sumption (Ind.) 2 L. R. A. 655, and note; Re Gannon (R. I.) 5 L. R. A. 359, and note: Ulman v. Baltimore (Md.) 11 L. R. A. 224, and note; Gilman v. Tucker (N. Y.) 13 L. R. A. 304, and note. And see notes to People v. O'Brien (N. Y.) 2 L. R. A. 258; Pearson V. Yewdall, 24 L. ed. U. S. 436; Wilson v. North Carolina es rel. Caldwell, 42 L. ed. U. S. 865. As to liability for cost of changing grade of street to prevent the crossing of a railroad at grade-see Kelly v. Minneapolis (Minn.) 26 L. R. A. 92, and note. in the number of tracks, and requires the tions by a city to a railroad corporation, 2. The condemnation of property under a spe- an increase in the number of tracks, and pro- Messrs. Robert E. De Forest and George P. Carroll submitted the cause for plaintiffs in error. Mr. William D. Bishop, Jr., submitted the cause for defendant in error. Contentions of counsel sufficiently appear in the opinion. *Mr. Justice Brown delivered the opinion[322) of the court: Plaintiffs assign as error that, in view of the fact that, by the agreement between the city and the railroad company, it was provided that the city should pay one sixth of the entire cost of the land required for the construction of a four-track road, as well as of all damages resulting from the changes of grade, there would be a reimbursement to the company for expenses in doing work and acquiring land not necessary or germane to the work of eliminating crossings at grade Decided May of the two present main tracks over the highways; and that, under these circumstances, the condemnation of defendants' property N ERROR to the Supreme Court of Er- will be in furtherance of a scheme whereby rors of the State of Connecticut to review the city of Bridgeport will contribute and a decision affirming an order for the appoint- donate to such company the credit, money, ment of appraisers under a statute for the and property of the city, and of its property abolition of grade crossings. Motion to dis-owners and taxpayers, in aid of the railroad miss or affirm. Affirmed. Submitted May 14, 1900. IN 28, 1900. See same case below, 70 Conn. 326, 39 Atl. 443. Statement by Mr. Justice Brown: [821] *This was a motion to dismiss the writ of error, and in default thereof to affirm the judgment of the supreme court of errors of Connecticut. company, contrary to the provisions of 1. We cannot say that there is no Federal question in this case. In their demurrer to the application of the railroad company The case originated in an application by plaintiffs in error relied upon the unconstitu the railroad company to the judge of the superior court to appoint appraisers to esti- tionality of this special act of the Connectimate the damages that might arise to the fifth amendment to the Constitution of the cut legislature as contravening the twentyplaintiffs in error from the taking of certain real estate in the city of Bridgeport, for the state, and the Fourteenth Amendment of the Federal Constitution. The amendment to purpose of carrying out an agreement be the state Constitution provides as follows: tween the railroad company and the city of "That no county, city, town, borough, or other Bridgeport for the abolition of grade crossings. This agreement, which was entered municipality shall ever subscribe to the capiinto under the provisions of an act of the tal stock of any railroad corporation, or begeneral assembly, "providing for the aboli-nation to, or loan its credit, directly or income a purchaser of the bonds, or make dotion of grade crossings in Bridgeport," pro- directly, in aid of, any such corporation." vided the manner, plans, method, and time in [322]*which the grade crossings should be abolished, and the proportion of the cost thereof to be borne by the city of Bridgeport and the railroad company-the proportion of such cost to be paid by the city being one sixth and that by the railroad company five sixths, provided the total cost to be paid by the city should not exceed the sum of $400,000. A demurrer to the application of the railroad company having been overruled, and a special defense in the answer having been stricken out as irrelevant and impertinent, an order was made appointing the appraisers. An appeal was taken to the supreme court of errors, which affirmed the judgment of the judge of the superior court, and defendant sued out this writ of error, which defendant in error moves to dismiss for want of jurisdiction, or to affirm upon the ground that the question upon which the jurisdiction depends is frivolous. The claim was, not that it was unconstitutional for the city of Bridgeport to pay for a part of the work for grade crossing elimination, but that the pay for work for the benefit of the company, in the construction of a four-track road, which was not necessary or germane to the work of grade crossing elimination, would be contrary to the above amendment to the state Constitution; and therefore that, as the land of Wheeler and Howes was to be taken to carry out a part of the project, to be paid for in part by the city, not necessary or germane to the work of grade crossing elimination, their property would be taken without due process of law. The substance of the defense seems to have been that the land was not taken solely for the purpose of abolishing grade crossings, but also for the purpose of laying two extra tracks, and making the road through the city of Bridgeport a four-track road instead of an ordinary double track. It seems that the railroad company had laid a complete four track road all the way from New York to New Haven, except in that section which lay in the city of Bridgeport—a distance of more than 4 miles, and crossing at grade twenty-four streets, some of them the most frequented in the whole city. There is no doubt that the special act did authorize an increase in the number of tracks, and there was some reason for saying that in requiring [324]the city to pay one sixth of the expenses in curred for this purpose, it was making a donation in aid of the railroad company in violation of the twenty-fifth amendment to the state Constitution, and as Wheeler and Howes were property owners and taxpayers of the city, they were incidentally affected by this, and therefore their lands were illegally taken. ability of the defendants to obtain payment the expense of performing the work in the The court intimated no opinion as to ants could not prevent a condemnation by |