1803, with which it is inseparably connected. | in that part of § 1804 which exempts the Both are set forth in the margin.1 [259] Assuming, however, that the facts -certified in the findings, taken by themselves, show a liability on the part of the People of Porto Rico under these sections, still defendant, both by demurrer and by answer, set up prescription by virtue of the provisions of § 1869 of the Civil Code. That section, which is one of a series of sections relating to the prescription of actions, reads as follows: state from liability when the damage is caused by the official to whom properly it pertained to do the act performed, viz.; the clause, “in which case the provisions of the preceding section shall be applicable." This cannot reasonably be interpreted as excluding the liability of the state under § 1803 in other cases, but is evidently intended to impose upon the official himself, in respect to damages [260] caused in the performance of his ordinary duties, a personal liability "Section 1869-The following prescribe under the provisions of § 1803, leaving the in one year: state liable in the sense of that section "1.-Actions to recover or retain pos- when it acts through a special agent. No session. "2.—Actions to demand civil liability for grave insults or calumny, and for obligations arising from the fault or negligence mentioned in § 1803, from the time the aggrieved person had knowledge thereof." It seems to us clear that an action against the state, based upon the pertinent clause of § 1804, is an action to demand civil liability "for obligations arising from the fault or negligence mentioned in § 1803," within the meaning of § 1869. Section 1804 by its very terms imposes upon the principal, with respect to the acts of the representative, not any different obligation, but the same obligation imposed by the preceding section. We say this, notwithstanding the somewhat peculiar form of expression 1"Section 1803. A person who, by an act or omission, causes damage to another when there is fault or negligence, shall be obliged to repair the damage so done. "Section 1804. The obligation imposed by the preceding section is demandable, not only for personal acts and omissions, but also for those of the persons for whom they should be responsible. "The father, and on his death or incapacity the mother, is liable for the damages caused by the minors who live with them. "Guardians are liable for the damages caused by minors or incapacitated persons who are under their authority and live with them. "Owners or directors of an establishment or enterprise are equally liable for the damages caused by their employees in the service of the branches in which the latter may be employed or on account of their duties. "The state is liable in this sense when it acts through a special agent, but not when the damage should have been caused by the official to whom properly it pertained to do the act performed, in which case the provisions of the preceding section shall be applicable. "Finally, masters or directors of arts and trades are liable for the damages caused by their pupils or apprentices while they are under their custody. "The liability referred to in this section shall cease when the persons mentioned reason is suggested for limiting the prescription to one year in the case of a default or negligence attributable to defendant personally, and leaving the action unlimited when it is attributable to the fault of defendant's representative or agent. Section 1869 being thus found to be applicable to such an action as the present, it only remains to ascertain and compare the pertinent dates. From his complaint herein and from the findings of the trial court it is plain that plaintiff had full knowledge of the wrongful acts of defendant's representative at least as soon as the time of the commencement of his former action against the People of Porto Rico, which was on January 30, 1901, and that the damage resulting from that wrongful therein prove that they employed all the diligence of a good father or [sic] a family to avoid the damage." These sections are taken from Articles 1902 and 1903 of the Spanish Code of 1889, where the clause respecting the responsibility of the state reads as follows: "El estado es responsable en este concepto cuando obra por mediación de un agente especial; pero no cuando el daño hubiese sido causado per el funcionario á quien propiamente corresponda la gestión practicada, en cuyo caso será aplicable lo dispuesto en el articulo anterior." It was suggested upon the argument that a more satisfactory translation into English than that adopted in the Porto Rican Code is as follows: "The state is liable in this respect when it acts through the medium of a special agent, but not when the damage was caused by an official to whom the action taken properly pertained, in which case the provisions of the preceding article apply." In Walton's "Civil Law in Spain," p. 458, the following version is given: "The state is liable, in this sense, when it acts through a special agent, but not when the damage has been caused by the official to whom properly it pertains to do the act already done, in which case the provision of the preceding article shall apply." And see interpretation by Supreme Court of Spain in decision of May 18, 1904, 98 Jur. Civ. 390. conduct, and to recover which his present action is brought, was complete before the end of the year 1905. Evidently the dam age was of such a character as to carry notice with it. As already mentioned, the present action was commenced in July, 1908. There is nothing in the record or the findings to explain or excuse this delay or to interrupt the prescription. We are not advised of the grounds upon which the court below overruled the plea of prescription. In its opinion it simply said: "We are also of the belief that, under the circumstances, the court ought not to hold that the claim is barred by the one year statute of limitations, and of course no other is applicable to the facts." Counsel for appellee has not suggested any ground for avoiding the prescription-indeed, has made no argument upon the subject. We deem it clear that § 1869 applies, and that the action is therefore prescribed, and it follows that the judgment must be reversed, and the cause remanded for further proceedings in accordance with this opinion. [261] Under the facts of the case it is unnecessary to consider whether the period of prescription began to run when plaintiff first had knowledge of the alleged wrongful acts of Hollander, or only when he had knowledge of the damage consequent thereon. Upon this point, therefore, we express no opinion. Judgment reversed. Mr. Justice McReynolds took no part in the consideration or decision of this case. WESTERN LIFE INDEMNITY COMPANY OF ILLINOIS, Plff. in Err., V. CLARENCE RUPP. (See S. C. Reporter's ed. 261–275.) Constitutional law due process of law waiver. service of process 1. No infringement of the due process NOTE. As to what constitutes due process of law, generally-see notes to People v. O'Brien, 2 L.R.A. 255; Kuntz v. Sumption, 2 L.R.A. 655; Re Gannon. 5 L.R.A. 359; Ulman v. Baltimore, 11 L.R.A. 224; Gilman v. Tucker, 13 L.R.A. 304; Pearson v. Yewdall, 24 L. ed. U. S. 436, and Wilson v. North Carolina, 42 L. ed. U. S. 865. As to what service of process is sufficient, generally-see note to Pinney v. Province Loan & Invest. Co. 50 L.R.A. 577. On the general subject of writs of error from the United States Supreme Court to state courts-see notes to Martin v. Hunter, 4 L. ed. U. S. 97; Hamblin v. Western Land Co. 37 L. ed. U. S. 267; Re Buchanan, 39 Led. U. S. 884; and Kipley v. Illinois, 42 L. ed. U. S. 998. | of law clause of U. S. Const. 14th Amend. results from the ruling of a state court that the defendant, by permitting a judgment in his favor to be reviewed on the merits at the instance of plaintiff in the action, without interposing a cross appeal to call in question the decision of the trial court overruling a motion to quash the return upon the summons, waived its objection to the jurisdiction of the court over it, and could not have any benefit of that objection upon a second appeal by it from a judgment for For other cases, see Constitutional Law, 720plaintiff. 724, in Digest Sup. Ct. 1908.] Statutes full faith and credit. 2. The ruling of a Kentucky court that insurance written in that state by an Illinois life insurance corporation was not af22, 1893, § 9, that life insurance companies fected by the provisions of Ill. act of June incorporated under that act shall not issue policies upon the life of any person in which the beneficiary named has no insurable interest, does not deny the full faith and credit to which such statute, under U. S. Const. art. 4, § 1, and U. S. Rev. Stat. § 905, U. S. Comp. Stat. 1901, p. 677, is entitled, where the court's attention was not called to any decision by the Illinois courts placing a different construction, or, indeed, any construction, upon that section. [For other cases, see Statutes, Il. a, in Digest Sup. Ct. 1913 Supp.] Error to state court non-Federal question and credit. scope of review full faith 3. No question under the full faith and credit clause of U. S. Const. art. 4, § 1, open to review in the Federal Supreme Court on writ of error to a state court, is presented where the controversy turns merely upon the interpretation or construc. tion of a statute of a sister state, the va lidity of such statute not being questioned. [For other cases, see Appeal and Error, 19691980, 2249-2251, in Digest Sup. Ct. 1908.] [No. 50.] Submitted November 5, 1914. Decided November 30, 1914. N ERROR to the Court of Appeals of the State of Kentucky to review a judg On what adjudications of state courts can be brought up for review in the Supreme Court of the United States by writ of error to those courts-see note to Apex Transp. Co. v. Garbade, 62 L.R.A. 513. On how and when questions must be raised and decided in a state court in order to make a case for a writ of error from the Supreme Court of the United States-see note to Mutual L. Ins. Co. v. McGrew, 63 L.R.A. 33. On what questions the Federal Supreme Court will consider in reviewing the judg ments of state courts-see note to Missouri ex rel. Hill v. Dockery, 63 L.R.A. 571. On review of decisions of state courts presenting the question of full faith and credit —see note to Allen v. Alleghany Co. 49 L. ed. U. S. 551. of public policy which the statute embodies is to be determined by the substance of things, and not by names, for if that were not the case, the provisions of the statute would be wholly inefficacious, as names would readily be devised to accomplish such a purpose. the rate which would have been applicable | Cases, supra), it would seem that the on a through shipment from an Ohio river case before us cogently demonstrates the point to the same point of destination, or applicability of the amendment to the situait must be treated by a fiction as one mov- tion. And it needs no argument to demoning from an Ohio river point to the same, strate that the application of the principle destination. If the first, then clearly the allowance made of a rate from Nashville to the point of destination was a lesser charge for the longer distance hauled as to such grain than was charged for the shorter distance as to any other grain moving from Nashville to intermediate points, or from such points to places further on, and came clearly within the grasp of the 4th section. If, on the other hand, it be imagined to be a shipment from the Ohio river crossing to the point of destination, upon the theory that the traffic before stoppage at Nash ville originated at the Ohio river point, then exactly the same conditions would be reproduced, since the charge as the result of the reduction made was the equivalent of a lesser rate for the longer than for the shorter distance, which, as we have stated, was the prevailing system from Ohio river crossings to points of destination in the southeast. It is true that in argument it was said that the question here is whether there was a preference or discrimination under the 2d and 3d sections of the act, and not an inquiry under the 4th section, and that a distinction between the various sections has It follows from what we have said that the court below was wrong in enjoining the order of the Commission, and, on the contrary, should have dismissed the complaint. The case will therefore be appropriately remanded to enable a decree to that effect to be entered, without prejudice, however, to the right of the carriers to apply to the Commission to be relieved from the operation of the provisions of the 4th section, if they are so advised. Reversed. Mr. Justice Pitney concurs in the result. [327] UNITED STATES OF AMERICA FOR THE USE AND BENEFIT OF ALEXANDER BRYANT COMPANY, Piff. in Err., V. NEW YORK STEAM FITTING COMPANY and the Title Guaranty & Surety Company. (See S. C. Reporter's ed. 327-342.) Appeal from district courttion below. jurisdic is reviewable in the Federal Supreme Court been recognized. It has, indeed, been held notice of public contractor time of publication. the act of February 24, 1905 (33 Stat. at 2. The requirement in the provisos of L. 811, chap. 778, Comp. Stat. 1913, § 6923), that the last publication of notice to creditors of a suit brought by a creditor upon the bond of a public contractor must NOTE. On direct review in Federal Su cuit courts-see notes to Gwin v. United States, 46 L. ed. U. S. 741, and B. Altman tion and the remedy which that amend-preme Court of judgments of district or cirment was intended to make effective are taken into view (see Intermountain Rate & Co. v. United States, 56 L. ed. U. S. 894. be "at least three months before the time limited therefor," is not jurisdictional, but is directory only, and cannot be construed as cutting down the limitation of one year from the complete performance of the contract and final settlement thereof prescribed for such suits by another proviso in the statute, although giving the entire year for the commencement of such action may preclude the opportunity for intervention given by still another proviso, which declares that only one action shall be brought, in which any creditor may file his claims and be made a party thereto "within one year from the completion of the work, and not later." [For other cases, see Bonds, I., in Digest Sup. Ct. 1908.] [No. 67.] States use of Hill v. American Surety Co. 200 U. S. 197, 50 L. ed. 437, 26 Sup. Ct. Rep. 168. The controlling case of Vermont Marble Co. v. National Surety Co. 213 Fed. 429, holds that the 3d proviso of the act is not intended to change the period of limitation within which the claims of subcontractors, etc., may be asserted in a suit on the bond, but that the provision is directory only, and that, where claims were asserted within the six months specified, it was immaterial that the notice was not published three months and three weeks prior to the expiration of the year within which suit might be instituted. Defendants should not be permitted to assert provisions of the act intended for the Argued November 9, 1914. Decided Decem- benefit of creditors, in order to extinguish ber 7, 1914. IN ERROR to the District Court of the of New York to review a judgment which dismissed an action by a creditor on the bond of a public contractor. Reversed and remanded for further proceedings. The facts are stated in the opinion. Mr. George B. Class argued the cause and filed a brief for plaintiff in error: When one section of a statute treats specifically and solely of a matter, that section prevails in reference to that matter. Long v. Culp, 14 Kan. 412. When the first section of a statute con forms to the obvious legislative intent, it is not rendered inoperative by any later section which may appear inconsistent with that intent. State ex rel. Patterson v. Bates, 96 Minn. 110, 113 Am. St. Rep. 612, 104 N. W. 709; Hall v. State, 39 Fla. 637, 23 So. 119. A later clause which is obscure and incoherent will not prevail over an earlier one which is clear and explicit. Endlich, Interpretation of Statutes, § 183. The third proviso is directory, and not mandatory or jurisdictional. 1 Sutherland, Stat. Constr. pp. 1114-1116, 1138. Statutes are to be construed so as to effectuate legislative intent. United States v. Freeman, 3 How. 556, 11 L. ed. 724; Durousseau v. United States, 6 Cranch, 307, 3 L. ed. 232. This act substitutes the bond in place and stead of the ordinary mechanics' lien, which may be filed against other than Federal buildings, and as such should be most liberally construed for the protection of material men. United States use of Vermont Marble Co. v. Burgdorf, 13 App. D. C. 506; United their own liability to such creditors upon the bond given for their benefit. Van Rensselaer v. Kearney, 11 How. 326, Defendants are estopped from pleading insufficiency of notice under the circumstances. 5 Enc. U. S. Sup. Ct. Rep. 590; Catts v. Phalen, 2 How. 376, 11 L. ed. 306; United States v. Girault, 11 How. 22, 30, 13 L. ed. 587, 591; Shutte v. Thompson, 15 Wall. 151, 21 L. ed. 123; Mutual L. Ins. Co. v. Hill, 193 U. S. 551-560, 48 L. ed. 788-794, 24 Sup. Ct. Rep. 538; Carey v. Brown, 92 U. S. 171, 23 L. ed. 469; Fackler v. Ford, 24 How. 322, 16 L. ed. 690; Randon v. Toby, 11 How. 493518, 13 L. ed. 784-795. where one party has by his representations The principle of equitable estoppel is that, or his conduct induced the other party to a transaction to give him an advantage which science for him to assert, he will not, in a it would be against equity and good concourt of justice, be permitted to avail himself of that advantage. 5 Enc. U. S. Sup. Ct. Rep. 938; Union Mut. Ins. Co. v. Wilkinson, 13 Wall. 222, 20 L. ed. 617; Dair v. United States, 16 Wall. 1, 21 L. ed. 491. To illustrate the great lengths to which the Federal courts go in applying this equitable doctrine of estoppel, attention is directed S. 578, 25 L. ed. 618. to the case of Dickerson v. Colgrove, 100 U. Mr. John R. Halsey argued the cause, and, with Mr. Adrian T. Kiernan, filed a brief for defendants in error: Compliance with the requirements of the 3d proviso of the act is a limitation upon the liability to the plaintiff. United States use of Hollinger v. Stannard, 206 Fed. 326; United States ex rel. Texas Portland Cement Co. v. McCord, 233 U. S. 157, 58 L. ed. 893, 34 Sup. Ct. Rep. 550. The provision that the creditor's action shall be brought in the circuit court in the brought, complainant served personal notice district in which the contract was to be per- of the pendency of this action upon all formed is not for the protection of the sure-known creditors, informing them of their ty, but obviously for the convenience of the other creditors. But the surety is allowed to raise the objection. United States v. Congress Constr. Co. 222 U. S. 199, 56 L. ed. 163, 32 Sup. Ct. Rep. 44. The motion to dismiss the writ of error should be granted. Fore River Shipbuilding Co. v. Hagg, 219 U. S. 175, 177, 55 L. ed. 163, 164, 31 Sup. Ct. Rep. 185. Mr. Justice McKenna opinion of the court: right to intervene as the court might order, and in addition thereto published the notice in a newspaper of general circulation in the city, county, and state of New York for three successive weeks, the last publication of which was three months before the time limited therefor as in the acts of Congress provided. A bill of particulars was furnished defendants, of which the following is a copy: "The plaintiff as and for a bill of particdelivered the ulars, demanded by the Title Guaranty & Surety Company herein avers The United States, suing for the use of the Alexander Bryant Company, plaintiff in error, was plaintiff in the court below, and the defendants in error defendants. "That, pursuant to the requirements of the acts of Congress under which this action is brought, the plaintiff herein made personal service of notice of the pendency of this action upon all known creditors of the New York Steam Fitting Company as follows: The complaint alleged the following facts: The New York Steam Fitting Company entered into a contract with the United States for the mechanical equip- "On Messrs. Peet and Powers, November ment of the New York custom house at 21st, 1908; on Hermann & Grace, November New York. It gave bond for the faithful 21st, 1908; on Henry R. Worthington, Noperformance of its contract with defendant vember 19th, 1908; on John Simmons Comin error the Title Guaranty & Surety Company, November 20th, 1908; on Cutler Hampany, as surety. One of the conditions of mer Company, November 19th, 1908; on the bond was that the Steam Fitting Com- Rob't A. Keasby Company, November 20th, pany would, among other things, promptly make a payment to all persons supplying it labor and material in the prosecution of the work contemplated by the contract of the Steam Fitting Company with the United States. The bond was accepted and the work undertaken and duly completed on or about February 19, 1908, the Alexander Bryant Company having, in pursuance of a contract with the Steam Fitting Company, furnished all the materials and performed all of the work, upon which there is a balance due to the Bryant Company of $5,431.18. Under the terms of the agreement between it and the Steam Fitting Company it should have been paid as the government paid the former; and as final payment was made by the government February 15, 1908, interest is demanded. No action, it is alleged, had been brought by the United States against defendant within six months after, nor had one year elapsed since, the performance and final settlement [331] of the contract by the New York Steam Fitting Company prior to the commencement of this action. It is alleged that, in pursuance of the requirements of the act of Congress of August 13, 1894 (28 Stat. at L. 278, chap. 280), as amended February 24, 1905 (33 Stat. at L. 811, chap. 778, Comp. Stat. 1913, § 6923), under and by virtue of which this action is 1908. "That under date of November 21st, 1908, Messrs. Hardy & Shellabarger, attorneys for New York Steam Fitting Company and the Title Guaranty & Trust Company of Scranton, Pennsylvania (now the Title Guaranty & Surety Company), stipulated with the attorney for the plaintiff as fol lows: "It is hereby consented on the part of the defendants [332] that defendants waive any failure on the part of the plaintiff to notify creditors under the third proviso of the statute, provided no more such notices are sent.' "That on the 5th day of November, 1908, and on each day thereafter to and including November 25th, 1908, there was published in the New York press of New York city, New York, a notice of the pendency of this action, addressed to all known creditors of the defendant, the New York Steam Fitting Company. Attached hereto and forming a part of this bill of particulars is a copy of the form in which personal notice of the pendency of this action was served upon all known creditors of the New York Steam Fitting Company, and a copy of the notice which was given by publication in the New York press to aforesaid creditors. Dated, New York, December 7th, 1909.” Copics of the notices are inserted in the |