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miners' measurement.

ceeding forty thousand inches of water, min- | above expressed as the carrying capacity of ers' measurement, nor less than ten thousand said Mesa canal, or such portion thereof as inches of water, miners' measurement, and may be apportioned to said Mesa canal by said enlargement shall be fully made and decree of any court. Provided, the stockcompleted by the thirtieth day of December, holders who are now using or may *hereaft-[300] A. D. 1891. The present carrying capacity er use water above the Ayers' head gate' of said Mesa canal for the purpose of this shall have their water delivered to them as agreement shall be seven thousand inches, at present above the 'Ayers' head gate' aforesaid, or said stockholders shall have their water delivered to them at the 'Ayers' head gate' with the other stockholders, as they may demand. Provided, further, that the water shall be delivered to the party of the first part after the completion of said canal out cost to the party of the first part, their as aforesaid for a period of five years, withsuccessors or assigns, and thereafter for a sum not exceeding three dollars per share per year forever, to be paid for in the same manner as they now pay for the same.

"All the cost and expense of enlarging and increasing the size of said dam, head gate, and canal as aforesaid shall be borne and paid by the party of the second part, his as sociates, heirs, or assigns, forever. And said enlargement shall be made without in any way interfering with any of the rights, titles, interests, or privileges of said party of the first part in and to the said canal and the water flowing through said canal, except as hereinafter provided.

"The party of the first part hereby re[299]serves the right to further *enlarge said portion of the Mesa canal whenever they deem it necessary to do so, provided such enlargement shall not interfere with or lessen the rights or privileges herein granted to the party of the second part, his associates, or assigns.

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"Provided, further, that if the said party of the second part, his associates, heirs, or assigns, shall neglect to deliver water as agreed herein, or shall fail to carry out any of the terms of this agreement, and shall be notified by the directors of the Mesa Canal Company of such failure or neglect to carry "Said party of the second part, his associ-out the terms of this agreement, and shall ates, or assigns, shall, in enlarging said still neglect to carry out the terms of this main dam, head gates, and canal as afore- agreement for a period of ten days thereaftsaid, in all respects enlarge said dam, header, or in such case as a break in the canal, gates, and canal in a good, substantial, and workmanshiplike manner, according to the most approved methods of constructing and building irrigating canals.

"All suits, liabilities, costs, expenses, or

judgments, and all damages or loss incurred or sustained by the party of the first part caused by said enlargement, shall be borne by the party of the second part, his associates or assigns forever, and all suits or proceedings against the party of the first part by reason of said enlargement to be defended at the expense of the party of the second part.

"It is expressly understood and agreed by the parties hereto, their successors, or assigns, that at all times when there is an abundance of water in Salt river liable to appropriation and flowage through said canal when so enlarged, then and at all such times the said party of the first part shall have the right to use from said canal in addition to the amount hereinbefore specified as the capacity of said canal two thousand inches of water, miners' measurement.

"The management and control of the canal between the point known as 'Ayers' head gate' to and including the dam in Salt river, when so enlarged as aforesaid, shall be in the party of the second part, his heirs, associates, or assigns. Provided, that the party of the second part, his heirs, associates, or assigns, shall, before he or they are entitled to receive or use any water through said canal, first deliver to the party of the first part, their heirs, or assigns, at the point in said Mesa canal known as 'Ayers' head gate,' and shall continue to deliver the seven thousand inches of water, miners' measurement,

head gates, and dam, whereby the water is
turned out for a period of five days, then
and at all such times it is hereby agreed by
the party of the second part, his heirs, as-
sociates, or assigns, that the directors of the
and power to take full charge and control of
Mesa Canal Company shall have the right
said enlarged portion of said Mesa canal
without process of law, and the same shall
become the property of the Mesa Canal Com-
pany and shall so remain until the party of
the second part, his associates, heirs, or as-
signs, shall fully comply with the term and
requirements of this agreement, and then
part, his associates, heirs, or assigns, and
shall revert back to the party of the second
shall be and remain in the party of the sec-
long as the terms of this agreement shall be
ond part, his associates, heirs, or assigns, so
by them complied with.

"This agreement shall not give or convey to
the party of the second part, his associates,
heirs, or assigns, any title or ownership in
or to the capital stock of said Mesa Canal
Company, but shall only convey such privi-
leges and rights as are herein mentioned."

The appellant, as the transferee from[301) Chandler, enlarged and reconstructed the Mesa canal down to a place called the "Division Gates," which point had by mutual consent been substituted for Ayers' head gate as the point of division of the waters, and delivery by the appellant to the appellee of the water to which the latter was entitled. In thus enlarging and reconstructing the canal the appellant raised the grade thereof for the purpose of carrying the water at a higher elevation, thereby enabling the canal to cover more and other lands, and at the point where the division gates were

located the elevation was about five feet | the fact that in the trial of the case much of above the grade of the canal before reconstruction, and by the construction of those gates at the point the appellant delivering the water to the appellee secured a fall of five feet in the water thus delivered.

Other findings were as follows: "After appellant had delivered the water in the manner aforesaid for some years, the appellee built a dam in its canal a short distance below the division gates, that raised the water and caused it to flow through a lateral ditch, which enabled the appellee to irrigate some lands on which it had not been able to place water through its canal from

its former elevation. The effect of this

raise in the water was to reduce the fall at the division gates.

"After appellee had built its dam and backed up the water, as aforesaid, appellant had constructed a water wheel and a mill for grinding grain to be driven thereby, and had erected them at the division gates, so that the wheel was turned by the water as it fell from the division gate into the Mesa canal, a distance of about 5 feet. Afterwards ap pellant increased the height of the dam that it had formerly built to such an extent that it raised the surface of the water and backed the same up against the division gate in such manner as to destroy 32 feet of the 5 feet fall and totally destroyed the water

power.

"The water raised by the dam and the water affording the water power thus destroyed is the 7,000 inches of water which appellant is obligated by the terms of the agreement [302]aforementioned to first deliver to the appellee before said appellant is entitled to receive or use any water through said canal. "A further result of the erection of the water in appellee's canal below the division gates was to very slightly, if at all, impede the flow of water in appellant's canal above the division gates and thereby detract very slightly from the carrying capacity of appel

lant's canal.

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the testimony, pro and con, was in reference to that matter. We are concluded as to the question of fact by the finding, and it is familiar law that injunction will not issue to enforce a right that is doubtful, or to restrain an act the injurious consequences of which are merely trifling. Parker v. Winnipiseogee Lake Cotton & Woollen Co. 2 Black, 545, 552, 17 L. ed. 333, 337. question, which is whether the dam built by We pass, therefore, to the only substantial appellee, having the effect as it did of raising the flow of water in its canal so as to destroy the water power obtained by appellant through the construction of its canal, was [303] an infringerunt of the rights secured to appelant by the contract of January 10, 191. that by that contract it had a right to raise The appellant seems to be of the opinion its canal to such an elevation as it saw fit, while the appellee had no such liberty. We search the contract in vain for any express stipulation to that effect. If the appellant had a right to raise the grade of its canal 5 feet, we see nothing to forbid the appellee to raise its grade to the same height. There is no reference in the contract to water pow er. Obviously the only matter then contemplated was a supply of water for irrigation purposes. The appellee is styled "an irrigating corporation, and as such operating the Mesa canal." The expressed thereby through said canal." The water purpose of appellant was "obtaining water power was evidently an afterthought, suggested by the condition of things when the appellant had finished the reconstruction of its canal. The appellant must point to some stipulation in the contract which the action of the appellee has broken, for the entire right given by it to the appellant is declared to be "without in any way interfering with the rights, titles, interests, or privi leges of said party of the first part in and to said canal and the water flowing through said canal, except as hereinafter provided."

No right passed to the appellant except that which was expressly named. Ali other rights, titles, interests, or privileges were retained by the appellee. The appellant was

to deliver the 7,000 inches of water out of the enlarged canal, and the appellee was to receive and pay therefor. The appellant was to increase the carrying capacity of the canal not less than 10,000 nor more than 40,000 inches, and this surplus water it had a right to use. But the appellee reserved the right if it saw fit at any time to still further enlarge the carrying capacity of the canal, and the only limitation in respect to such enlargement was that it should not "interfere with or lessen the rights" granted to the appellant. What were those rights? Obviously the right to take and use the surplus over 7,000 inches of water flowing through the canal, as enlarged by appellant.

It may be that neither party to this contract could change the grade of its canal so as to compel the other to make a like *change[304] of grade. Thus, when the appellant, in the first instance, enlarged and reconstructed its

canal, it raised the grade feet. If it had seen fit to lower the grade 5 feet, instead of raising it, doubtless, in order to fulfil its contract of delivery, it would have had to provide some pumping arrangements, and could not have demanded that the appellee lower its grade 5 feet in order to receive the water. And so it may be that the appellee could not now raise its grade 10 feet and then demand that the appellant either raise its grade 5 feet more or put in pumping works to insure the delivery of the water.

Railroad receivers are not liable to an action
for penalties under U. S. Rev. Stat. §§ 4386-
4389, for failure to comply with the regula-
tions as to transportation of live stock by
"any company, owner, or custodian of such
animals," since receivers are plainly not with-
in the letter of the statute and not necessar-
ily within its purpose or spirit, and there-
fore, as the statute is penal, it cannot be con-
strued to extend to them.

[No. 169.]

1900.

But as to any action which does not inter- Argued March 5, 6, 1900. Decided April 9,
fere with the delivery of water by the appel-
lant to the appellee, there is nothing in the

WRIT OF CERTIORARI to the United

contract to restrain at least the appellee0 States Circuit Court of Appeals for the

from doing as it pleases with its canal.

It does not appear that the appellee was acting maliciously and for the mere sake of injuring the appellant. On the contrary, its purpose as disclosed was to irrigate lands which it had not theretofore been able to irrigate from its former elevation, and we know of no reason why it had not a right to do so. It made no stipulation as to the lands which it should irrigate. It had the same right which it had before the contract of enlarging or reducing the number of acres reached by the flow of its water. It does not appear that the lands which it was seeking to irrigate by raising the elevation in the upper part of its canal could have been reached in any other way, and it was not bound to desist from any enlargement of its own business for the mere benefit of the appellant or to enable the latter to enjoy something which was not conveyed to it by the terms of the contract.

Third Circuit to review a decision affirming
a judgment in favor of defendants in an ac-
tion against railroad receivers for penalties.
Affirmed.

See same case below, 57 U. S. App. 259, 85
Fed. Rep. 533, 29 C. C. A. 327.

Statement by Mr. Justice Shiras: *This was a suit brought in November,[305] 1895, in the district court of the United States for the eastern district of Pennsylvania, by the United States against Joseph S. Harris, Edward M. Paxson, and John Lowber Welsh, receivers of the Philadelphia & Reading Railroad Company, to recover penalty in the sum of $500 for an alleged violation of §§ 4386, 4387, 4388, and 4389 of the Revised Statutes of the United States.

There was a verdict in favor of the United States, but afterwards, on a question reserved at the trial, judgment was entered in We need not stop to inquire what are the favor of the defendants non obstante vererights of separate appropriators of water in dicto. 78 Fed. Rep. 290. Thereupon a writ the absence of a contract. We are dealing of error was sued out from the circuit court with those which grow out of this contract, of appeals for the third circuit, and on bearing in mind that all rights are reserved March 14, 1898, the judgment of the disto the appellee which are not in terms grant-trict court was affirmed. 57 U. S. App. 259, ed to the appellant. If 7,000 inches of wa- 85 Fed. Rep. 533, 29 C. C. A. 327. The ter was more than sufficient to supply the cause was then brought to this court on a territory which it was then irrigating, there writ of certiorari. is nothing which forbade the appellee to enlarge that area, and in order to enable it to reach that larger area it might make any [305]change in the construction of its canal-at least any change which did not interfere with the free delivery of the water by the appellant.

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

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and note

Solicitor General John K. Richards ar

gued the cause and filed a brief for petition

er.

Mr. John G. Lamb argued the cause and filed a brief for respondents.

Contentions of counsel sufficiently appear in the opinion.

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The act under which this suit was brought was passed March 3, 1873, and was entitled "An Act to Prevent Cruelty to Animals while in Transit by Railroad or Other Means of Transportation within the United States."

It appears in the Revised Statutes as 88 4386, 4387. 4388, and 4389, as follows:

| signed to prevent cruelty to animals while in course of interstate transit; that the reg"Sec. 4386. No railroad company within ulations were to be complied with whenever the United States whose road forms any part animals were transported by rail or boat of a line of road over which cattle, sheep, from one state or another; and that who_swine, or other animals are conveyed from ever had charge of the railroad or the boat one state to another, or the owners or mas- had to see that these wholesome and humane ters of steam, sailing, or other vessels carry-regulations were obeyed, or had to pay the ing or transporting cattle, sheep, swine, or penalty for violating them. other animals from one state to another, shall confine the same in cars, boats, or vessels of any description for a longer period than twenty-eight consecutive hours, without unloading the same for rest, water, and feeding for a period of at least five consecutive hours, unless prevented from so unload ing by storm or other accidental causes. In estimating such confinement the time dur. ing which the animals have been confined without such rest on connecting roads from which they are received shall be included, it being the intent of this section to prohibit their continuous confinement beyond the period of twenty-eight hours, except upon contingencies hereinbefore stated.

To strengthen the argument that Congress intended to include even receivers when managing a railroad under an appointment by a court, the government's counsel calls attention to the provisions of the 2d and[308] 3d sections of the act of August 13. 1888 (25 Stat. at L. 436, chap. 866), reading as follows:

"Sec. 2. That whenever in any cause pending in any court of the United States there shall be a receiver or manager in possession of any property such receiver or manager shall manage and operate such property according to the requirements of the valid laws of the state in which such property shall be situated, in the same manner "Sec. 4387. Animals so unloaded shall be that the owner or possessor thereof would be properly fed and watered during such rest bound to do if in possession thereof. Any by the owner or person having the custody receiver or manager who shall wilfully viothereof, or in case of his default in so do-late the provisions of this section shall be ing, then by the railroad company or own-deemed guilty of a misdemeanor, and shall, ers or masters of boats or vessels transport-on conviction thereof, be punished by a fine ing the same at the expense of the owner or not exceeding three thousand dollars, or by person in custody thereof; and such com-imprisonment not exceeding one year, or by pany, owners, or masters shall in such case both said punishments, in the discretion of have a lien upon such animals for food, care, the court. [807]and custody furnished, and shall not be liable for any detention of such animals.

"Sec. 4388. Any company, owner, or custodian of such animals who knowingly and willingly fails to comply with the provisions of the two preceding sections, shall, for every such failure, be liable for and forfeit and pay a penalty of not less than $100 nor more than $500. But when animals are carried in cars, boats, or other vessels in which they can and do have proper food, water, space, and opportunity to rest, the provisions in regard to their being unloaded shall not apply.

"Sec. 4389. The penalty created by the preceding sections shall be recovered by civil action in the name of the United States, in the circuit or district court of the United States, holden within the district where the violation may have been committed, or the person or corporation resides or carries on its business; and it shall be the duty of all United States marshals, their deputies and subordinates, to prosecute all violations which come to their notice or knowledge."

The contention on behalf of the government is that, by the words "any company," used in 4388, Congress intended to embrace all common carriers, whether by rail or water, upon whom the duty was imposed by § 4386 of unloading and feeding the animals; that the word "company" is used in a popular sense as signifying the person or persons, the association or corporation. carrying on the business of a common carrier by rail or water; that, as shown by its title, the act in question was a humane one, de

"Sec. 3. That every receiver or manager of any property appointed by any court of the United States may be sued in respect of any act or transaction of his in carrying on the business connected with such property, without the previous leave of the court in which such receiver or manager was appointed; but such suit shall be subject to the general equity jurisdiction of the court in which such receiver or manager was appointed, so far as the same shall be necessary to the ends of justice."

It is claimed that the effect of such legislation is to place receivers upon the same their liability to be sued for acts done while plane with railway companies as respects operating a railroad.

Upon the whole, the proposition of the government's counsel is that the words "any company, owner, or custodian of such animals," used in § 4388, are intended to cover ceding two sections; that the words "every all those who can possibly violate the precompany" must, therefore, be held to include a railroad company, whether a person, a partnership or a corporation, and whether acting individually, or through officers or receivers.

It may be conceded that it was the intention of Congress to subject receivers of railroad companies, appointed such by courts of the United States, to the valid laws and regulations of the states and of the United States, whose object is to promote the safety, comfort, and convenience of the traveling public. But we are not now concerned with [309) the general intention of Congress, but with its special intention, manifested in the en

actments under which this suit was brought. | penal laws are to be construed strictly, they
Was it the purpose of Congress when pre- are not to be construed so strictly as to
scribing a penalty for any company, owner, defeat the obvious intention of the legisla
or custodian of animals who knowingly and ture. The maxim is not to be so applied
willingly fails to comply with the direc-as to narrow the words of the statute to the
tions of the statute, to include receivers?
Can we fairly bring receivers within the
penal clause by reasoning from a supposed
or an apparent motive in Congress in pass
ing the act?

It was the view of the courts below that receivers were plainly not within the letter of the statute, and not necessarily within its purpose or spirit: and an attentive ex amination has brought us to the same conclusion.

strong

exclusion of cases which those words, in their ordinary acceptation, or in that sense in which the legislature has obviously used them, would comprehend. The intention of the legislature is to be collected from the words they employ. Where there is no ambiguity in the words there is no room for construction. The case must be a one indeed which would justify a court in departing from the plain meaning of words,especially in a penal act, in search of an inIt must be admitted that, in order to hold tention which the words themselves did not the receivers, they must be regarded as in- suggest. To determine that a case is withcluded in the word "company." Only by a in the intention of a statute its language strained and artificial construction, based must authorize us to say so. It would be chiefly upon a consideration of the mischief dangerous, indeed, to carry the principle which the legislature sought to remedy, can that a case which is within the reason or receivers be brought within the terms of the mischief of a statute is within its provi law. But can such a kind of construction sions, so far as to punish a crime not enube resorted to in enforcing a penal statute? merated in the statute because it is of equal Giving all proper force to the contention of atrocity, or of a kindred character with the counsel of the government, that there those which are enumerated. If this princihas been some relaxation on the part of the ple has ever been recognized in expounding courts in applying the rule of strict con criminal law, it has been in cases of construction to such statutes, it still remains siderable irritation, which it would be unthat the intention of a penal statute must be safe to consider as precedents forming a genfound in the language actually used, inter-eral rule for other cases.' See likewise preted according to its fair and obvious Sarlls v. United States, 152 U. S. 570, 38 mening. It is not permitted to courts, in L. ed. 556, 14 Sup. Ct. Rep. 720. this class of cases, to attribute inadvertence The judgment of the Circuit Court of Apor oversight to the legislature when enumer-peals is affirmed. ating the classes of persons who are subjected to a penal enactment, nor to depart from the settled meaning of words or phrases in order to bring persons not named or distinctly described within the supposed purpose of the statute.

*CREDITS COMMUTATION COMPANY (311; and Combination Bridge Company, Appts.,

v.

UNITED STATES et al. (No. 233.)

COMMUTATION COMPANY et al., Appts.,

It may well be that Congress, in omitting to expressly include receivers in these sections, intended to leave them subject to the control and direction of the courts, whose CREDITS officers they are. It does not, therefore, follow that the statute in question would be without operation where railroads are in F. GORDON DEXTER and Oliver Ames, 2d,

the hands of receivers. The owners and custodians of the stock would still remain subject to the punishment prescribed.

[310] *We cannot better close this discussion than by quoting the language of Chief Justice Marshall, in the case of United States v. Wiltberger, 5 Wheat. 76, 5 L. ed. 37:

"The rule that penal laws are to be construed strictly is perhaps not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals, and on the plain principle that the power of punishment is vested in the legislative, and not in the judicial, department. It is the legislature, not the court, which is to define a crime and ordain its punishment. It is said that, notwithstanding this rule, the intention of the lawmaker must govern in the construction of penal as well as other statutes. But this is not a new independent rule which subverts the old. It is a modification of the ancient maxim, and amounts to this, that though

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Trustees, et al. (No. 234.)

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OLIVER AMES, 2d, and Samuel Carr, Executors, et al. (No. 235.)

(See S. C. Reporter's ed. 311-317.) Appeal-from denial of intervention—adjudication against intervener's claim.

A statement in an order denying leave to in

NOTE. As to what is "final decree" or judgment of state or other court from which appeal lies-see note to Gibbons v. Ogden, 5 L. ed. U. S. 302.

As to what decrees are final-see note to Brush Electric Co. v. Electric Improv. Co. 2 C. C. A. 379.

As to orders, judgments, and decrees reviewable in the circuit court of appeals--see note to Salmon v. Mills, 13 C. C. A. 374.

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