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MATIOMAL REPORTER STSTBM— OHITKD STATBS SBRISa
THE
SUPREME COURT REPORTER
VOLUME 37
PERMANENT EDITION
CASES ARGUED AND DETERMINED IN THE
UNITED STATES SUPREME COURT
OCTOBER TERM. 1916
WITH KEY-NUMBER ANNOTATIONS
DECEMBER, 1916 — AUGUST, 1917
ST. PAUL
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WEST PUBLISHING CO.
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1917
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JUSTICES
OFTHB
UNITED STATES SUPREME COURT
OCTOBER TERM, 1916
cBiKF jusncs:
HOH. EDWABB D. WHITa.
ASSOCIATSS:
Hon. JOSEPH McKENNA.
HoK. OLIVER WENDELL HOLMBa
Hon. WILLIAM R. DAY.
HoK. WILLIS VAN DEVANTER.
Hon. MAHLON PITNEY.
HoH. JAMES C. McREYNOLDS.
HoK. LOinS D. BRANDEIS.
HoH. JOHN H, CLARKE."
ATTOHNEV CSNCRALt
Hon. THOMAS WATT GREGORY.
souaTos CBHSRAI.;
HoH. JOHN WILLIAM DAVIS.
Unoiaud jntr n ml.
abvGoogle
ALLOTMENT OF THE JUSTICES
SUPREME COURT OF THE UNITED STATES
OomprMiHl Main*. UauaOhUtetU, New HamptMn, and KSode ItlanO.
JuBiTci OLIVER WENDELL HOLMES, of Masuchiuetts. Appointed D«-
eember 4, 1902, bj President Roosevelt.
SEconD (^BOUR*
Oompri»t»ti Cotutectidtt, Vme Fortv and Vermimt.
Ijjnux LODIS D. BBANDEIS, of MasaiLchnMetta. A«p(rintcd June 1, 1916, t^
Preddeat WUaoa.
THiBO oaoniT,
OomprMnff Delaware, Jfew Jertev, and Penfitytminla,
rousTB oiBooTT.
3QST1CK EDWABD D. WHITE, of Louidana. Appointed FebnuUT IB. 188^
by President Cleveland; appointed CUef Justice Decemtrar 1^ IBIO, by
PreHldeDt Tatt
Oompriting Alabama, Florida, OeorgUi. LokMoho, UUtlartppl, and Temat.
JusnoB JAHBS C. HcBEYNOLDS, of Teiinessee. Appointed Angost 28, 1814.
bj President WUson.
SIXTH OIBOUIT.
ComprMfV Kattuekif, MUOi^att, OMo, and Tammee.
Jiwnoa WIL.UAM B. DAY, of Oliio. AiUKduted rebntUT 2B, 1908, br FlWl-
dent Rooserelt
BVUITU ouauiT.
Otmprtfng IlUnoU, Indtatta, and WbooMln,
JQBTICB JOnN H. GLABEB, of Ohio. Appointed Jnly 24, 1816, bj Prealdeia
Wilson.
naHTH ononiT.
ComprUbtg Arkantat, CoJonido, Iowa, Kama; Vlmiwola, MUMwi, V«>
braika, Kew M&rtoo, Sortk Dakota, OftJoAoma, Bouth DaJeota,
Utah, and Wyoming,
JosncK WILLIS TAN DBTANTEB, Of Wromlnc ^wolnted December 10,
1810, b7 Prestdent laft.
ffUfTU CTWTtt
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Supreme Court Reporter References
for cases reported in
United States Reports
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DisiiizBdiivGooi^le
CASES REPORTED
A. B. rack Co, HeniT t. QU XJ. S. aBll 7
Abella T. People ot P«rto Klco (243 U. 3.
627} 4
A. C. I^jmna Mmcb. Co., F. F, Slooomb
ft Co. T. (242 U. S. 035)
A. C. Lealia & Co., Western Tnuult Co.
V. (242 U. S. 448) 1
Adams T. Tanner (244 U. S. 090) 6
Adaniaon ▼. Qiliilaud (242 U. S. SSO) 1
Aeoltsn Co. t. Victor lUkiuc Mach. Co.
(244 U. 8. 660) 7
Ab LeODK, Bight Reverend Libert Hubert
Boeynuma v. m2 U. S. 612)
Alaska, Alaska Gold Mining Ca t. (242
U. S. 648) 2
*'i't^«, Aluka Pacific Fisheries v., two
casea (242 U. S. 648) 2
Alaaka. Alaaka Salmcoi Co. v. (242 U. 8.
«4S) 2
Alaska Muiow QiAi Mining Co. t. Terri-
toi7 of Alaska (242 D. S. 648) 2
Alaska Pacific FisherlM v. I'erritotr of
Alaako, two cases (242 U. a 648) 2
Alaska Salmoa Go. t. Territory of Alaska
CM2TJ.e.64« 2
AQwrt Lorsd) ft Co, United State* t. (24S
U. S. 97) 8
Albert Pick & Co. T. Jordan (244 U. S. 647) 7
Alder T. Edenbom (242 n. 8. 187)
Alex D. Shaw & Co. t. United States (242
U.S. 641) 1
AmalcBinated Copper Co., United Copper
Securities Co. T. (244 U. S. 261) 0
AnMrican-Asiatic S. S. Co., United States t.
&i2 U. S. SS7) 2
Anwrican Bank Note Co. ▼. Blue Rldie
EHectric Co. (248 U. B. 644) 4
American Bank of Alaska t. RfdiBrds (242
U. S. 649) 2
Amerinui Bondins Co. ot Baltinuwe v.
United States to Use of Fiandni (242
U. S. 661) 1
American Bip. Co., Beer t. (244 U. 8. 662) 6
American Eip. GOn James Clark IHstillinK
Co. T. (242 U. 8.811) 1
Amnican E}ip. Co. t. State of Oklaboma
(242 U. S. te2) 1
American Bip. Co. t. State of South Da-
kota, ex rel. Caldwell G^i U. B. 617) 6
American Eip. Co. v. United States Eorae
Shoe Co. (244 U. 8. C» Q
American-Hawaiian S. S. Co. *. Stratlial-
byn 8. B. Co. (242 U. B. 6B1) 2
American Locomotive Co.. Park Square Aa-
tomtd^le Station T. (243 U. 8. 633) 4
Amwlesn Warehouse A lYadins Co., Pen-
dieton T. (243 D. 8. 613) 4
Anderson, Brady t._{244 U. B. 654) 6
Anderaon, Cblcuo, T. B. A 8. BL B. Go. t.
{242 U. a. 2©) 1
Aspam, He (Berg t. British A African
Btean NaT. Co, 243 U. S. 124) 8
Aj^ereoD. Hen^ckson v. (MB U. 8. 640) 4
Apnrado t. Broee (244 U. S. 662) 6
Arias T. Ttaoso (248 U. 8. 662) 4
Ariioaa Buteni B. Co. t. Bryan (241 D. 8.
«Z1) 2
sT&a
Arkansas, Union Sand ft Material Co. t.
(243 U. 8. 662) 478
Armonr Packing Co. t. State ot Miasonri
ex reL Barker (242 U. S. 663) 218
ArrinKton, United Statea r. (243 U. S. 661) 479
Atchistm, T. A 8. F. B. (3o. t. State of
Sausaa ex reL Brewster (242 U. S. 654) 12
Atchiaon, T. A B. F. R. Co. t. United
States m4 U. 8. 330) 635
Atlanta, Lehon v. (■242 U. S. S3) 70
Atiflndc City R. Co. v. Parker (242 U. S.
56) 69
Atlantic Coast Line R. Co. t. Mims (242 U.
B. 632) IBS
Atlantic Coast Line R. Co. t. Mulligan (242
U. S. 620) 241
Atlantic Coast Idne B. Co, Woods v. (243
U. 8.645) 406
Atlantic Communication Co., Kiutner t.
(244 U. S. 661). 746
Atlas Portland Cement Co. t. Hagen (242
U. 8. 631) 18
Atlas Transp. Co., Lee line Steamera t.
(243 V. 8. 643) 408
Babbitt T. Read (243 U. S. 648) 478
Backus, Healy T. (243 U. S. 657) 400
Backns, Hariliall t. (242 U. 8. 688). Ill
Backos, Marahall t. (243 U. S. 657} 401
Baker t. Baker, Oedea ft Co. (242 U. S.
304) 182
Baker T. Dunlop ffi42 U. S. 600) 242
Baker. E)ccles & Co., Baker t. (242 D. 8.
394) 152
Baker T. B(±o(ieId (243 U. B. 114) 333
Bakker t. Netberlands- American Steam
NaT. (3o. (242 U. 8. 601) 248
Baldwin Co„ R. S. Howard Oo. t. (243
U. 8. 639) 400
Baltimore ft O. R. Co, t. Branson (S42 U. S.
BaltimmeA oVrICo* t. Hagen (242 U. 8.
667) 244
Baltimwe A O. R. Co. t. Leadk (248 U. S.
639) 404
Baltimore A 0. R. Co. t. Whitaera (242
U. S. 169) 83
Baltlmwe ft O. B. Co. t. Wilsoti (242 V. S.
295) 123
Banks. NaabTille, C. A SL L. B. Co. t. (248
U. S. 626) 402
Berber t. Colombia Cbemlcal Co. (244 U. 8.
652) 650
Barker, State of Missouri ex reL, Armour
PockWck.. T. (242 U. S. 663) 218
Barlow, Lehlgli Valley R. Co. t. (244 U. S.
183) 518
Barney T. Way (242 V. S. 662) 212
Barrett Co. t. Rwipb (244 U. S. 661) 746
Baah T. Howald f244 U. S. 648) 743
BassT. GeipT (244 U. S. 653) 652
Bay T. Merrill A Ring Lofrging Co. (243 U.
S. 40) 876
Beshnm. New Tork Cent. A H. B. B. (^ t.
(242 U. S. 148) 43
Beaver, Tbo (Lie t. Ban Francisco ft Port-
Und S. S. Co., 243 U. S. 2»1)... 270
A^^OO^IC
Beaver RWer Power Co. t. United BUte*
(243 U. S. 888) 387
Beck, Bwert v. (243 U. 3. 642) 405
Beecroft v. Great Northern R, Co. (242
U. S. 618) 213
Beer y. American Kxp. 0>. (244 U. 8. 662) 649
Behrend, Supreme CouncU of Bojal Arcan'
urn T. (242 U. S. 626) 18
Belen Land Grant, Board of Trustees at
Sevilleta de la Joya Orant v. (242 U. S.
695) 21B
Berx T. British & African Steam NaT. Go.
(243 U. « T>^^ 837
Berg T. B 837
Berkahire 139).... Ill
Bernhard, I) 741
Benutein S. 653) 246
Berry v. 1 208
BifgBT. 1 744
BiUard, I .863).. 213
BiUinra,! 745
Bird,Citi 1.669).. 744
Bittenben [ rol., v.
Bznse -Ui Neb.
(244 V. S. 645) 651
Black, Weil v. (243 C. S. 660) 476
Blackwell. Seaboard Air Line R. Co. t. (244
U. S. 310) 610
Blackwell Lumber Co., Empire liiU Co. t.
(244 D. S. 6B1) 744
Blair V. United Statu (244 U. 3. 665). ... 742
Bleakly, EawkinB v. (243 V. S. 210) 2GS
Bleeg. Lyon v. (244 U. S. 660) 746
Bine Ridee Electric Co., American Bank
Note Co. T. (243 U. S. 644) 406
Blue Ridge Intemrban R. Ca, Henderaoii-
Tllle Eight & Poirer Co. y. (243 U. S. 663) 440
Board of Com'ra of Oklahoma Connty, Har-
per V. (243 U. S. 931) 477
Board of Com'rs of Oklahoma Coonty,
Southern Surety (3o. v. (243 U. S. 625).. 400
Board of Com'ra of Oaage County, OkL,
United State* t. C44 D. S. 663). 94fl
Board of Coundlnien of City of Frankfort
T. Bast Tenueeaee Tel. Co. (242 U. S. 665) 240
Board of Public Utilltiea Com'rg of State
of New Jeney, Public Service Gaa Co. v,
(242 n. S. 6^ 243
Board of Trusteea of Belen Land Grant,
Board of Troitees of SevfUeta de la Joya
Grant V. (242 U. S. 6OT) 21S
Board of Trustees of Sevilleta de la Joya
Grant v. Board of Trusteea of Belen Land
Grant (242 U. S. 596) .218
Boarman, United State* ex rel. State o(
Louisiana V. (244 0. S. 397) 606
Bobb V. Meyer (242 D. 3. 659) 112
Bobo, Memphis St. R. Co. v. (242 D. 8. 626) 13
Bobo, Memphla St. R. Co. v. (242 U. S. 664) 214
Boevnaems v. Ah Leong (242 D. 3. 612) ... 20
Bolch. Chicago. M. * St. P. B. Co. v. (242
U. S. 618) 211
BondT. Hume (243 U. S. 15) 366
Bond V. Langum (242 D. S. 663) 246
Boovillatn v. Howell (243 U. S. 640) 403
Boston. Wplch T. (244 U. S. 962) 648
Bowen ft Co. v. State of Washington (242
U. S. (t55) 12
Bowersock v. Smith C24.<t U. S. 29) 371
Boyle, Rowland v. (244 U. S. lf«> 6T7
Bradv v. Anderson (244 U. S. (VM) 652
Brandt v. Morgan (243 U. S. 601) 479
Branson. Baltimore ft O. B. Co. v. (242 V.
S. 623) 244'
Brent, Simpson V, (243 U. S. 639) 403
Brewster, State ot Kansas ex rel., Atdiison, I
T. ft a. P. B. Oo. T. <242 U. S. 654) is|
Brewster, State of ^wn— f «x rti., Ulmoart,
K. & T. R. Co. r. (242 D. S. 668) U
BrigEsv.SUt«of Kan4aaffi42n. S.615).. 211
Britista ft African Steam Nav. Co., Berg t.
(243 n. 8. 124) 3S7
Broce, ApuradoT. (244 C. S. 662) 649
Brooklyn Eastern Diat. Terminal, United
States V. (243 U. 8. 647) 475
Brooks V. Empire Trust (Jo. (243 U. 3. 655) 480
Broom V. Chapman (242 U. S. 644) 213
Brown v. (Sty of New York (242 U. S. 91% 19
Brown, Pennaylvwiia B. Co. v. (242 U. S.
646) 240
Bryan, Arizona Eaatem R. Co. t. (242 U.
S. 621) 241
Bufkeye Wheel Co, Haines v. (242 O. S.
643) 213
Bull V. CanwbeU fi!42 U, S. 610) 17
Bunip. C<»npagnle G^n^rale IVansatlan-
tique T. [2^ C. S. 642) 114
Bunch V. Maloney (242 U. S. 626) 13
Bunting v. State of Oregon (243 U. S. 426) 435
Burr, State of Blorida ei leL, Florida East
Coast R, Oo. v. (242 U. 8. 666) 12
BuTTooghs Adding Macb. Co., Felt ft Tai^
rant Mfg. Co. v. (244 U. 8. 969) 74S
Burma, Nevada-Calif omia-Oregon By. v.
(244 U. 8. 103) 676
Bush Const Co., Withndl t. (243 V. S.
63^ 481
Butler, Southern R, Co. t. (243 U. 8. 646) 406
Caldwell T, Northweatarn Terra Cotta Co.
(242 U. 8. 643) 212
Caldwell v. Sioux Falls Stock Yards (3o.
(242 U. 8. 658) 824
Caldwell, State of Sonth Dakota ex reL,
American E]cp. Co, v. (244 U. B, 617).. 6S8
Caledonian Ins. Oo., Lewis v. (242 U. S.
636) 18
(JalifomU v. Deaeret Water, Oil ft Irrfga-
tiffli Co. (243 U. 8. 415) 394
California Adjustment Co., Southern Pac.
Co. V. (243 U. 8. 96(» 478
CalL Long Sanlt Develo[«riant Oo. t. (242
U. 8. 27a 79
Cameron v. Weedin (244 U. a 663) 660
Gamlnetti v. United States (212 U. S. 470) 182
Campbell, Bull r. (242 U. B. 610) 17
CJampbell t. CampbeU (242 U. 8. 642) 114
Capey, (Thesnut v. (242 U. 8. 668) 11
Capita] Tniat Co., Great Northern B. Co.
V. (242 U, S. 144) 41
Cardona t. Peoide of Porto Rico (244 U. S.
646) 661
Carey, Detroit Iron ft Steel Oo. v. (242 V.
S. 649) 242
Carnegie Trust Co., Zlegler v, (242 U. 8.
968) 244
Carolina, a ft O. R. Oo. v. Stroup (244 U.
S. 649) 743
Carr. Pennsylvania R. Co. t. (243 U. S.
587) 472
Carter, Prairie Oil ft Gas Co. t. (244 U. S.
646) . 402
Carter, "p^irieOiVftGVBCo'V.'ciMu's.
646) 9K
Cassady. Missouri, E. ft T. R, Co. of Texas
T. (242 U. S. 611) 18
(Jayser, Thomaen v. (243 U. 8. 66) 353
Central Agnirre Co., Semidey v. (243 U. S.
W2) 479
Central Fortana t. People of Porio Rico
(243 U. S. 959) 406
Central Pac. R. Co., IDanis-Brown Co. t.
(242 V. S.687) 21
.A^iOOglC
87 8UPBBMO C»URT REPORTER
Central Trnit Ot. of New York t. TeiaB Co.
(243 D. S. ft47) 475
OntTBl Trust Co. of N«w lark y. Texas
Co. (243 V. S. 048) 475
Centra] Trust Co. of New York t. Doited
State* (242 U. S. flflO) 112
Centralia V. TiUow (243 U. S. 656) 432
Chalooer t. Shenaan (242 U. S. 455) 136
Chamberlin v. MuUingB (243 U. S. raJS)... 399
Chambprs v, CoDtiiientBl Trust Co. (24S IT.
8. 654) 4S0
Chapman, Broom v. 1^2 U. S, 644) 21^
Chase v, Hansen (242 U. S. 661) 113
Oiatman, Norfolk Southern E, Co. v. (244
U. S. 276) 49&
CSiautanqua InaL T. Zimmerman (242 V.
S. 642). 114
Cherrr, ChimEo life Ina. Co. T. (244 U. S.
25) 492
(AesnpMke & O. R, Co. t. Cooper <242 V.
S. 670) 11
ChesapuUce & O. R. Co. t. Koraboff (242
U. 8.658) 17
Cheeapeake * O. R. Co.. McAUiater t. (248 __
U. S. 302) 274
CbesBpeake ft O. R. Co. t. UcLAughliD ^42
U. 8. 142) 40
Chesapeake & O. R, Co., Old Dominion Iron
A Nail WorXsCo. v. (242 U. S. 623) . . . . 244
Chesapwke & O. R. Co. v. Public Service
Gommiaeion of State of West Vircini» „
(242 0. 8.608) 234
Cbeaapeake « O, R. Co. t. Shaw (243 U. 8.
028} 400
ObeebTon^ t. Woodworth (244 U. S. 72). . . B79
Cbeebrotifh, Woodworth v. (244 U. S. 79). . CiS3
<Aenitit T. Capey ffl42 D. S. 6e» 11
Ghicsgo, Tbomaa Onaack Go. t. ^242 U. 8.
626) 160
Chicago, Wmiwne t, (242 TJ. a 484) 142
Cftlcaeo Great Weatem R. Co. v. Manntng
(243 V. a. 648) 405
Chicago lifa Ina. Co. t. Cherry (244 V. 8.
25) 492
Chl<««>. M. ft St P. a Co. T. Boldi (242 U.
8. 618) 211
Chi<ago, M. ft St. P. R. Co., Clement t. (2ffi
U. a. 631) IB
Oiicagq, M. ft St P. R. Co., Raymond t.
(243 B. S. 43) 268
Oiicatro, M. ft St P. R. Co. ¥. State Public
Utilities Commivlon ot JUinois (242 U.
8. 333) ira
CWcafo, M. ft St. P. R, Co. of Idaho t,
United States (244 U. 8. 8B1) 625
Chieairo. T. H. ft 8. B. R. Co. v. Anderson
(242 ij. S. 283) 124
Chicaso Title ft Trust Co. *. Znttermeiater
(242 TJ. S. 629) 14
Caiicago ft A. R. Oo. T, McWhlrt (243 U. S.
422* 392
Chicago ft A. R. Oo. t. Dnited States (242
U. S. 621) 241
Chicago ft N. W. R. Co. t, United States
(242 U. S. 633) 18
Chin Hing V. White (244 U, 8. «65) 663
Christopher t. Uungen (242 U. 8. 611) 18
Church Go. v. Hilfiard Hotel Co. (242 U.
S. 591) 232
Oieana t. State of Tennessee (242 U. S. 196) 108
Oitizena' Trust ft Savings Bank, Miller
Rubber Co. v. (242 U. S. 628) 14
City Land Co., Dabu<9 t. (242 fj. S. 660). . ll-.i
City of Atlanta, Lehon v. (242 U. S. 631 . . . 70
CSty ot Boston, Wdch t. (244 U. S. 6^.. 649
<Sty of Ontt^ T. Tltlow (243 U. 8. 666) 482
Cil7 of Chicago, Thomas Cusad Co. t. (242
U.S. 526) 1
City ot Chicago, Williams v. (242 U. S. 434) 1
Cl^ ot Detroit, Detroit United Ry. v. (242
U. S. 238)
City of Frankfort, Board of Councilmcn of.
¥. East Tennt^ssee Tel. Co. (242 U. S. 6G.'i) 2
City of Marceline, Sidej v. (243 U. S. 6511 4
at; of Milwaukee, Mehlos v. (242 U. S.
658)
City of Montgomery t. Greene (242 U. S.
G13)
City of MontgometT ▼. McDade (242 U. S.
614)
City of Monroe v. State of Louisiana ei
reL Parish Board of School Directors ot
Parish of Ouachita. r«. (242 U. S. 657). .
City ot Newark. Ohio, Newark Natural Gas
& Fuel Co. Y. (242 U. S. 406) 1
City ot New York, Brown t. (242 U. 8. 612)
Ci^ of Owensboro, Ky., t. Owenahoro Wa-
Works Go. (248 U. 3.166) 3
of Passaic, Pnblle Serrlcs Gas Co. t.
I 0. S. 667) a
□f Psterson, Public Service Gas C!o. v.
!U. 8. 668)..
r Raleii ■ "
. U. S. L
^ of Ridimond v. Bird ©44 U. S. t — .
CHark, Washington Ky. ft Electric Co. t.
(243 U. 8. 649) 4
Clark Distilling Co. v. American Ecp. Co.
(242 U. 8. 311) 1
Clark DistiUing Co. v. Western Maryland
R, Co. ^42U. S. 811} 1
~ *■ ■ "o. T. Pabst Brewing G>.
ol ii! ft St P.' K-'Co.' "(242
a st'LLiC'cto! V.'otaii
r4i'M.'s. R 0^'t.' (242
WJker*(244"tl.'s.'2M)." B
'^,„_„ . -._ , gging Co., Graya Harbor
Logging Co. v. 6!43 U. 8. 261) 2
GoAta-Fordney Logging Co.. State of Wash-
ington ex t«l. Grays Harbor Logging Co.
T. (248U. 8. 261) a
Cobb, WlUiams V. (242 O. S. 307) 1
Cohen T. SamneU(243 U. S. 634) 3
Cohen v. Samuels (243 U. S. 650) 4
Cohn*. MaloneCM3 U. 8. 634) 3
Cohn V. Malone (243 U. S. 640) 4
Colburn y. Wilder (242 U. 8. 067)
Colorado. Wyoming t. (243 U. S. 622) 3
Columbia, Tyrrell v. (243 U. 3. 1) 3
Columbia Chemical Co., Barber t. (244 U.
8.652) e
Combs, Joines v. (242 U. S. 619) 2
Commercial Sec. Co. ». Dunning (242 U. S.
630) 1
(^mmeroial Trast ft Savings Bank v. Wil-
son (242 C. 8. 632)
CommoDwealtb ot Pennsylvania, Crowt v.
(242 U. 8. 153)
Gompagnle G4nSraIe Transatluntique v.
Bump (242 U. V """
.. f242 U.""S. 629).:
Continental Trust Co., Chambers v. (243 U.
S. 654) 4
Cook, Union Pac R. Co. v. (243 U. S. 0.54) 4
Cooper, Cheaapeake & O. R. Cki. t. (242
U. S. 670)
Copiah County, Smith v. @43 U. S. 650). . 4
Cornell, IwaU t. (244 U. S. 648) 6
.A^iOOglC
OASES BEPOBTBID
Cotton B«lt LevM Dirt. No. 1. Cubblu t.
(242 U. S. 658)
Coultrap, HaU v. (242 U. S. 639) 2
Councilmm of Citr of Frankfort t. Eaat
Tennessee Tel. Co. (242 U. S. fl65) 2
Cramp & Sons Ship & Engine Bide. Co. t.
Interaatioaal Curtis Marine Turbino Co.
(243 U. e. 637) 4
Crane T. Johnaon (242 U. S. 339) 1
Crane Co. t. Fidelity Truat Co. (241 O. S.
056) T
Crawford t. Wasbmgtmi Northern B. Co.
(242 0. S. 629)
Crawfordeville Stata Bank, Tncker v, (244
U. S. 657) 7
Creager, Hendrlckaoa y. (243 U. S. 640).. 4
CreeEmore v. Cnited States (242 V. S. 646) 2
Crenshaw. HiUer V. (243 U. 8. 634) 4
CrcBS, United Statea v. (243 U. S. 316) 3
Cribe V. ManlT (242 n. 8.658)
Croan, LouiavlUe & N. B. Co. v. (242 U. S.
610)
Cropp Concrete Madiinery Co., Reed y, (243
U. S. 649) 4
Cross T. United Statea (242 U, S. 4)
Crowl V. Commonwealth of Pennsylvania
(242 D. S. 153)
Cuba V. State of North Carolina (242 U. S.
605) 6
Cubbina t. Cotton Bait Levee Dist. No. 1
(242 D. S. 668)
Cubbina v. MisaiBaippi Rlrer Commission
(242 O. a. 668)
Cullman Bros., United Statea v. (243 U. S.
87) 8
CnsBCk Ca v. City d Chieaso (242 U. S.
526) 1
Cnvaboga EUw Power Co. v. Northern Be-
altj Co. (244 D. 8. 300) 6
Dabner < : (242 U. S. 660). . 1
Dabneyi 2U.S.6ai) 1
DardT. S.662) 2
Darnell * U. S. 664) 7
DariB,B 8.468) 2
Davis, E 8. 438) 1
Davis. H I. S.636) 4
DavlB-K t. L. K. Co. V. (242
U. S. 650) 2
Davis. Doited SUtea v. (243 V. S. 670) .... 4
Davia Co., Jllinoia Snretv Co. v. (244 U. S.
8761 6
Dean v. Darts (242 U. S. 438) 1
Delaware, L. & W. R Co., James v. (244 D,
S. 656) 7
Delaware, Ia & W. R. Co. v. Madden (244
D. S. 668) 7
Delaware, I. ft W. R. Co. t, Sound Tranap.
Co. (242 n. a. 64B) 2
Delaware. I* ft W. R. Co. v. WilUver (244
D. S. 063) 6
De Pass v. United States (243 O. 8. 625). , 4
Descret Water, Oil ft Irrigation Co., State
of CalUomia v. (248 U. 8. 415) S
Detroit. Detroit United R;. v. (242 U. 8.
2381
Detroit Iron & Steel Co. v. Carey (242 U.
S. 640) 2
Detroit Rock Salt Co. v. Swift & Co. (243
U. S. 635) 3
Detroit United By. v. City of Detroit (242
U. S. 238)
Detroit United Ry. v. People of State of
Michigan (242 U. S. 238) .
Diaz V. People of Porto Rico (243 U. 8.
627) 4
IMck Co.. Henry v. (244 U. 8. 651) 7
DickBonT.IiiickLudCo.(242D.S.871).. 1
Pan
Dina r. United Btfttea (242 V. S.^70). ... 182
DiUkgbam, WInE V. (244 U. S. OR) 652
Dinwiadie V. Metzger (242 O. 8, 631).... 16
Diapateh Printing Co., Xj. A. Westertiaa
Co. V. (242 U. S. 638) Ill
District of Columbia, Tyrreli v. (243 U.
Diion v.Goethau fiiian.'aime)."!!!."!! 211
Doepel V. Jonea (244 U. S. 306) 646
Dollar B. S. Co., Scbarrenberg v. (242 U. S.
642) 212
Donohae V. Vosper (243 U. 8. 59) 350
Dowd. United Mine Workers of America v.
(242 U. S. 653) 243
Dowden. United Statea ». (242 U. 8. 661). . 114
Doyle V. Hamilton Fiah Corp. (243 U. S.
649) 476
Doyle T. Mitchell Bros. Co. (244 U. S. 653) 652
Drainage Dist. No. 66 ot Bmmet (^oantji
Iowa, Taylor v. (244 U. S. 644) 651
DrigBs, Southern Ry,, Carolina Diviaion, v.
(242 U. S. 612) 20
Driggs. Southr-rn Rv.. Carolina Division, t.
(242 n. 8. 613) 20
Dnggan, Missouri Pac R. Cot v. (243 U. S.
657) 401
Duluth at. R. Co. V. Railroad Commission
of Wisconsin (242 U. S. 689) 11
Dunlop, Baker V. (242 U. S. 660) 242
Dunn. Lo Pong v. (242 U. S. 644) 214
Dunning, Commercial Sec. Co. v. (242 U. S.
639) Ill
Du Pont V. Gardiner (242 U. 8. 661) 245
Do Pont De Nemours Powder Co. v. Mas-
land (244 U. S.100) 676
East Tennessee Tel, Co.. Board of Conndl-
men ot Oty of Frankfort v. (242 U. S.
6G5) 240
E, Clemens Horat Co. t. Pabst Brewing Go.
(242 D. 3. 637) 19
Edenbom, Alder v. (242 U. S. 137) 38
Bdenbom, Sim v. (242 U. 8.131) 36
Edward Rtitlcdge Timber Co., West t. (244
U. a. 90) BS7
Edwards, Darnell v. (244 U. 6. 564) 701
Bdwards v. Keith (243 U. 8.638) 402
El E. Johnson Co., Grinnell Washing Macli.
Co. v. (242 U. 8. 027) 13
D. I. Do Pont De Nemours Powder Co. v.
Masland (244 U. S. 100) 675
Eighteen Packages o( Dental TnstrumenCs ».
United SUtes (242 U. 8. 617) 212
E. IjA Montame's Sous, United States v,
f243 U.S. 97) $46
Ellenwood. St. Lonis Southwestern B. Co. T.
(242 U. 8. 656) IS
Elliott Varnish Co. v. Sears, Roebock ft Co.
(242 U. S. 635) 1ft
Elliott ft Co., United iStates v. (243 U. 8. 97) 846
Ellis, Welch V. (244 U. S. 669) 74B
Ellison, Inc.. v. Hagar (244 U. S. 656) 742
Elmore. Fentress Coal & Coke Co, v. (243
U. S. 662) 47ft
Elyria Iron & Steel Co., Railroad Supply
Co. V, (242 U. a. 609) 16
Elyria Iron & Steel Co., Railroad Supply
Co.*. (244 U. 8. 285) 602
Emens. Lehigh Valley R. Co. v. (242 U. S,
627) 14
Emens, Lehigh Valley R. Co. t. (242 U. 8.
628) 14
Emerson v. Sweetser (242 U, 8. 646) 239
Emerson v. Sweetser (243 U. 8. 660) 476
Empire Mill Co. v. Blat^well Lnmber Co.
(244 U. 8. 651) 744
Bmidra Trust Oo» Brooks t. (243 U. 8. 661) 480
A^iOOglC
ST 8UFBBUB OODBT BBPOBnB
bniv-Biowii ODb V. Onitral FKc B. Oo.
e42D.s.e8T> ;
BhiterpriM Iir. DiA t. S'umsia' lint. Can-
al Oo. (248 U. 8. 197) S
EtteRrCo. T. Fnnicker (244 U. S. 320). . . S
Erl* ■R.Co.r. Stone 044 D. S. 832) S
Bri* R. C& V. Welsh ^D. S. SOS) 1
Erie B. Oo. T. WinQcld (244 U. S. 170).. N
Brie Sl>^t7 Co., GilchriBt Col t. (242 U.
EwwtT. B«i;"(248'tryB."642J!!!! !"!;!.' 41
Bwins, Bamtt O). T. (244 D. 8. 661) 1
BwinK T. Unltad Statea ex rd. Fowlw Oar
Co. (242 U. S. 63* 1
Dwing T. Unltad State* ex raL Fowler Oar
Co. (244 D. S. 1) *
Bxdae Board of Catr of linctrin, Neb., Stata
of Nebraska a. reL Bittenbender t. (244
U.S. 645) a
EBard,LaeTT. (248 U. S. 631) 4
rkber. Inc., Unltad States t. (248 U. S. 97) ft
Farmers' Irr. Diat. t. State of Nebraaka ex
nL O'Sbea 044 U. 8. S26). tt
E^umers' Mut. Oanal Oo., Ihiteipilae Irr.
Diat T. 048 U. S. 167) 8
FUmer^ Tnut ft Savlnca Co., Plttabnrfli,
a, a ft St I* R. Oo. T. (242 U. 8. e5« . .
rMubenj. Qalim«^ U. S. 607)
Feketa, KcratoiM Ooal ft OiAa Oo. t. (242
U.S. 635)
lUlom az r«L Union Troat Oo., Flnt Nat,
Baok of Bar Citr v- (244 U. 8. 416). . . T
FdtOisteiD, Tankana t. (244 U. 8. 127]... 5
Fdt & Tanant Mfi. Oo. t. Bnrronshs Add-
ing IfadL Oo. mi n. 8. 6Se) 7
Ftutraa Ooal ft (Mm Oo. t. Elmon (248 U.
S. KZt *
f^rria. State of Ohio T. (242 U. 8. 634). . .
T. F. Skxmnb ft Oo. v. A. 0. LoTman UadL
Oo. ©42 U. 8. 6351
lUelltT Tnut Co., Orane Oo. t. (244 U.
8. aSa T
nddltr ft Dvoalt Oo. of Maryland t. Unit-
ed State* to Uae of Fowden (242 U. S.
Flrat Nat Bank'of Bay cHrr. Fellowii «
T*L Union Tnut Co. (244 U. S. 41$ 7
Fbtt Nat. Bank of Okeana, Ohio, 8ec<md
Nat. Bank of Cincinnati. Ohio, t. (242 U.
S. 600) 2
Flnrt-Secoud Nat. Bank of Flttebor^ Tor-
ranee t. (242 U. S. 6601 1
Flah Corp.. Doyle 7. (248 U. S. 648) 4
Fire Per Oettt. IMsconnt Caae* (United
Sutea T. U. H. Pulaaki Co., 24S D. 8.
87) 8
noiida East Ooaat B. Oo. t. State of Flori-
da ex rd. Borr (242 U. S. 6551-
Florida ex rd. Burr, Florida Ba«t Coaat
B. Co. T. (242 U. 8. 666).
Flojd County, Ga., Borne By. ft Light Oo,
T. (248 U. 8. 287) 2
Fol^iHopeT. (242 U. S. 666) 2
Ft Worth Bar. Bank ft Tniat Co., Lea t.
<24S U. B. 646) 4
Fourth Nat Bank (rf dndnnati, Ohio, Pen-
nlDcton T. (243 U. S. 260) 2
Fowden, United Statea to Uaa of. Fidelity ft
Depodt Oo. ot Haiyland t, (242 U. S.
Fowler'Ov 0(4' United Statea ei'i^*,
BwingT. (242 U. 8.63% 1
niwter Oar Co.. United State* ei nL,
Bving V. (244 b. B. 1) 4
Ftandni, United State* to Um of, AmarlcaK
Bondliis Co. of Baltimore r. ffl42 U. 8.
emjTr. TT. i
i'ranntwt. Board of CtmncUinen ol Qty d,
T. Bart TecuMBe* TtL Go. (242 U. S. 605) 2
Frankfurt t. United Btatca (242 U. S. 63»i I
Franklin Nat Bank, Thranpaon t. (242 U.
S. 637)
Frederick t. Metropolitan Life Ina. Co. of
New Xork (243 if. S. 64Q 41
Free t. Weatem Union Tel. Co. (242 D. S.
Freedmai" i.' United' StatM (244 U. S.' 657) ?■
Frick, Lam Fung Xen v. (242 U. S. OiZl.. 1
Friedman t. United Statea (244 U. S. 043) 6
Friedridwoi v. Benaid (242 U. 8. 62^..
Fumeas, WithT ft Co, t. Tang-Tme Ina.
Aaa'n (242 U. 8. 480). 1
F. Titelll ft Son r. United States, two
eaaM (242 U. S. 641) 1
Gage ft (}o. T. Wilson (242 U. S. 632)....
Gannon T. Jtrimrton (?4S U. S. 10«(l ft
Gardiner, Dn Pont V. (242 U. S. 661) 2
Oaidnw, Hendrii^Bon t. (243 U. 8. 641). . . 4
Gardner t. WeeCem Union Td. Oo. (243 U,
8. 644) 4
Garland, Bamson t. (242 U. S. 647) 2
OaaQuet T. Lapeyre (242 U. 8. 867) 1
Gas Securitiea Oa^ Sbelton t. (244 V. S.
664) 6
Qatmaltan t. United States @42 U. 8. 664) 2
Gaoley Mountain (3oal Co., Uarea t. (242
uTs. 643) 2
Qwynor, New Tork JDectrle lines Oo. t.
0S42 D. S. 617) 2
Geary, Tan Dyke t. @44 U. S. 39) 4
Oeiger, Baaa t. (244 U. 8. 603) 6
GdgerJonee Co., Hall t. ©42 U. 8. 539} ... 2
General Electric Oo. v. New Zoric CMt ft
H. B. K 00. (243 U. S. 6B6) 4
Georgia Coast ft P. B. Oo. r. Loewenthai
(2«U. S. 644) 4
QiSord. Northern Pac; B. (^ t. ©42 U. 8.
eoo)
GQdirlat Co. r. Brie Hi>ecialty Oo. (242 U.
S. 6S0)
OilcTcaae v. McOiillonA.@43 U. B. 6S3),. 4
GiUwpie, RlfgB v. (244 tT S. «iS) T
QiUiland, Adamson t, (2^ U. S. 300). . . . 1
GinAecg, United States t. (248 U. 8. 47^ 4
Glasgow NaT. Co. t. Uunaon 8. B. Une (248
U. S. 648) 4
Gleaaon t. Thaw (243 U. a 6061 4
Ooethals, Dixon t. (242 U. 8. 616) 2
Gold Issue Min. ft IfilL Co., FennsylvanU
Fin Ins. Co. of PhUadeli^ v. (243 U.
GoodL K«sbrterian H<»ne Hartal' v.* (248
US. 606) 4
Goods T. United St»te* 048 U. S. 661). . . 4
Goodriii, Ex parte (244 U. 8. 648) 7
OordonrHarsbsli t. 043 U. 8. 021) 4
Gordon, Ohio Blver Oontract Oo. t. (244 U.
S. M) B
Goshen Mfg. Oo. t. Hubert A. Myera Mfg.
Co. (242 U 8. 202) 1
Gotachali, HlnneapoUa ft St Li B. Co. T.
(244 D. 8. 66j B
Gould T. Hyde PaA Water Co. (243 U. 8.
680) 4
(ktvenunent of Canal Zone ex reL Haeln-
tyte. Smith t. (244 U. & 66ffi T
Gradwell. United Statea t. (248 U. B. 476) 4
Granada V. Sta. Maria (243 U. & 661) 4
Orandlson, NatJonal Bank of Commerce of
Bodiester t. (242 U. 8. 644) 3
A^iOOglC
OASDS RBPORTBD
Graua RapIdB ft T. R. Go. t. United StatM
(2« U. a. 645) 651
Gndot OoDQt? State Bank v. Johnaon (243
U. S. 645) 406
GrfLTS Harbor Logging 0». v. Coats-Fonl-
ney Logging Co. (243 U, S. 251) 293
Grays Harbor LogsiDg Co., State of Wash-
ington ex re]., t. CoatB-Fordne; Logging
Co. (243 U. S. 251) 285
Grays Harbor Logcing Co., State of Wash-
ington ex rel., v. Superior Court of Wasb-
jncton foT CbehnllB County (243 U. S.
251) 295
Great Northern R. Co., Beeiroft t. (242 U,
S. 018) 213
Great Northern R. Co. v. Capital Truat Co.
(242 U. S. 1441. «
Great Noitlieni R. Co., HassoD t. (212 T7.
a 615) 211
Great Northern B. Co. t. Roach (242 U. S.
824) 245
Green, Dan] v. (242 D. 8.662) 212
Greenbrier Distilling Co., LouisTllIe & N.
R. Co. T. (243 U. S. 059) 401
Greene, aty of Montgomery t. ©12 U. S.
813) 20
Greene t. Illinois Cent R. Co., two cases
(244 tJ. 8. 555) 697
Greena v. l4Hiisville B, Co. (244 U. S. 4S9) 973
Gr««nB V. Louisviila 4 I. R. Co. (244 U. S.
499) 673
Greene t, Lonlarille & N. B. Co. (244 D. S.
622) 683
Greenongh Red Ash Goal Co., Mdsuku t.
(244 U. S. 54) 593
Greer t. United States (244 U. S. 655) 742
OrtggB T. Morris (242 U. S. 636) 19
Grinnell Washing Macfa. Go. t. B. D, John-
son Co. (242 U. S. (ET) 13
O. a Nicholas & Co. t. United State* (242
0. 3. 641) lis
Onaranty Trust Oo. of New York, North
German UordT. (243 U. 8. 637) 402
Qoaranty Trust Co. of New York, North
German IJoyd T. (244 D. 8. 12) 490
Qnlf, 0. 4 S. F. R. Co. t. Texas Packing
C!o. (244 U. S. 81) 487
G. W. Fnber, Inc., United States t. (243
n. a. 87) 846
O. 4 O. Meiriam Oo., Baalfleld Patt. Co. t.
(243 U. S. 661) 478
Hagar. WllUam P. Blllson, Inc., ▼. (244 U.
S. 6561 742
Hagen, Atlas Portland Cement Co. t. (242
U. S.631) IB
Hagen, Baltimore 4 0. B, Co. v. (242 U. S.
667) 244
Haines t. Buckeye Wheel Co. (242 U. S.
643) 213
HaloT. Record (244 U. 8. 662) 649
Hall V. Coultrap (242 U. 8. B.19) 217
HbU v. Gciger-Jonee Co. (242 U, S. 539) ... 21?
Hall V. Rose (242 U. S. 639) 217
HnlFcy & C:o., Merrick t. (242 U. S. 5691. . 227
nambly. United States v. (243 U. S. 470). . 407
Hflmer t. New York Hys. Co. (244 U. S.
266) 511
Hamilton Ksh Corp., Doyle v. (243 V. 3.
640) 476
Hansen, Chase t. (242 U. 3.661) 113
Hanson t. Great Northern B, Co. (242 U. S,
610) 211
Hanson t. Hanson (242 U. 3. 629) 14
Hanssens t. North German Uojd (248 D. 8.
Harding, Lazarus MIdiel ft Tdiaroa t. (243
O. S.682) 741
Harnage t. Martin (242 U. 8. 386) 143
Harper v. Board of Com'rs of CNdahoma
County ms U. S. 631) 477
Harrison, Berg t. (243 U. S. 124) 337
Hart Steel Co. v, ItaUroad Supply Co. (242
U. S. 009) 16
Hart Steel (So. t. Railroad Snpply Co. (244
U. S. 294) 506
Hathaway, Bx parte (243 U. S. 629) 403
Hathaway t. Martindaie (243 O. 8. 631). . . 478
Hawkins r. Bleakly (243 U. S. 210) 255
Hajden T. Davis (243 U. S. 630) 400
Hayes v. Gauley Mountain Coal Co. (242
U. S. 643) 213
Hays *. United SUtes (242 U. 8, 470) 192
Healy T. Backus (243 U. S. 657) 400
Helmlinger, Keystone Coal 4 Coke Go. t,
{242 U. 8. 035) 18
Hr^ndcnKin, Union Paa B. Co. t. (243 U. S.
654) 480
HendersonviUe light ft Power Co. v. Blue
Ridge Intorurbsn B. Co. (243 U. 9. 563) . . 440
HendricksoQ v. Apperson (243 U. S. 640). . 404
Hendrickson t, Creager (243 U. 3. 640) 404
Hendrickson t. Gardner (243 0, S. 641)... 404
Hendrickson t. Hocker (243 U. S. 641) 401
Hendrickson, Pennsylvania Tunnel ft Ter-
minal R. (io. T. (243 D. 3. 633) 4S1
Hendrickson v. Sterling Lend 4 Investment
Co. (243 U. 8. 641) 404
Henry V. A.B. DickCo. (244U. 6. 631)... 744
Henry, NaafaTille, d ft 8t. L. R. Co. t. (243
U. S. 626) 401
Henry Co., United States v. (243 D. 3. 97). . 846
Herbert V. Shanley Co. (242 U. 3. 501 232
Hemdonv. Sloan (243 U. 3.638) 408
Hertibera t. United States (243 O. 8.
654) 480
Hewitt Co. T. United SUtes Metallic Pack-
ing Co. «42 D. a 651) 243
Highland Park Mfg. Co., Steele t. (242 D.
s. 640) m
HillT. Reynolds (242 D. 8. 361) 16S
Hill, Toledo Bailwaya 4 Ugbt Oo. t. (244
U. 3. 49) 591
Hiller t. Crenshaw (243 U. 8. 634) 481
HilUard Hotel Co., John Church Co. v. (242
U. 3. 691) 232
Hocker, Hendrickaon t. (243 U. 3. 641). . . 404
Hoding Valley B. Co.. Swift ft Co. v. (243
D. 8. 281) 287
Hodge, St. Louis & S. F. B. Co. r. (244 D.
3. 664) 743
Hogg T. MaxweU (242 D. 8. 646) 240 ■
Hoglund, Lanev. (244 U. S. 174) 5oS
Holland, Tandalia R Co. t. (242 U. 3. 662) 212
Home Ins. Co. of New York, Williams t.
(243 U. e. 63S) 403
Hoover, Swift & Co. v. (242 U. S. 107) 56
Hope V. Foley (242 D. 8.600) 240
Hopkins V. Walker (244 U. S. 480) 711
Horn T, Mitchell (243 U. 3.247) 203
Hornby. I.vnch v. (243 U. S. 640) 404
Hovey v. TankerBley (242 U. 8. 650) J2
Howald. Bash v. (244 U. 8. 648) 743
Howard Co. v. Baldwin Co.^43 U. S. 630) 400
Howeil, Bonvillain v. (24.1 O. S. 640) 403
Hubbard, Lowe v. (242 U. 8. 654) 13
Hubert A. Myers Mfg. Co., Gosben Mfg.
Co. v. (242 U. S. 202) 105
Hnertas v. Motitea (243 U. 3. 628) 403
Hughes, Ei parte (244 U. S. 6.'jl) 744
HiiBhes V. United States (242 U. S. 640). . 112
Hume. Bond v. (243 U. S. 15) 366
Hutchinson Ice Tream Co. t. State of Iowa
(2^ U. 8. 163) 28
D,at,z.d>,.'^-.00'^IC
87 SUPBHUn OOUBT BSFOBTBB
Hjde. Ulnerala SeparatiaL v. (2*2 O. S.
H jde Park' Wktcr oL Oool J V^ (243 U." *S.
630) .Tr; 4
UllDOia, Kejc« y. ^42 U. 3.610)
lUinoia Cent R. Co. v. Greene, two cases
(244 U. S. 555) 6
lUiDoiB Cent. H. Co. t. I«nia (242 U. S.
(H7) 2
Jllinoia Cent. B. Co. v. Meadna (242 U. S.
053) 2
IlliuoSa Cent. B. Co. », Peery (242 U. S.
2U2) 1
lUinoia Cent It. Co., Uoited States t. (243
U. S. 850) 4
lUiDois Cent R. Co., United States t. (244
U. B.82) S
niiDoia Ceut^ R. Q>. t. United States (344
U. 8.658) 7
lUinoia Cent B. Co. t. Williama (242 U. S.
462) 1
Illinoia Soretr Co. t. John Davis Co. (244
n. S. 378) a
Illinoia Surety Co. t. Miller (242 U. S. 614) 1
Iltinois Surety Co. y. BtHndBrd Dnder-
groassA Cable Co. (243 U. S. 691} 4'
Indiana Tranap. Co» Ex parts (242 U. S.
281) ...r?7.....„ 1
Indiana Tranap. Co., E^x parte 044 D. S.
456) 7
Indian Land ft Tmst Co. t, Owen (244 D.
S, 6B7) 7
IndnKrial Accident (Tonunisslon ot Callfop-
uia V. Sonthem Pac Co. (243 U. S. 666) . . 4
Indostrial Acddent Commission of Stats of
California v. Southern Paa Co. (244 U. S.
6SS) «
In«Tsm, 8t Louis, I. M. ft 8. R. Ool v, (244
U. S. 647) 7
Innam, State Bank of Clearwater, Neb., t.
ps«n. S. 6K) 2
InmiUKW Co. of Nwth America, ICeOoadi
T. (244 n. 8. S8S) 7
Interboro Brewln? Oo. ▼. Standard Brewer?
Co. of Baltimor* Qty (243 U. S. 639). . . 4
Inter-Ialand Steam NaT. Oo. t. Ward (242
U. 8. 1)
Intematicoal Oartla Marine Turbine Co.,
WiDiam Oramp ft Soni Ship ft Engine
BHr. OO.T. efeU. 8.637) 4
International Lnmbar Oo. t. United States
(248 U. 8.661) 4
International Typesettlns Msch. Co„ Her-
Sentbaler Unotype Co. v. (243 U. S. 612) 4
Interstate Banking ft Tmst Co. v. Wilson
(242 U. a 632)
Intertype Corp., MeTgentlialer Unotyps Oo.
T, ^U. 8:6421 4
Iowa, Hntcbinson tea Cream Co, ▼, (242 U.
8. 103)
Iowa. Sanders Ice Oream Co. v. (202 O. 8.
153)
Iwata T. OcMnen (244 U. S. 64% 6
Jack, United States ex nL State of Louislr
BUT. (244U. B. 397) 6
Jaooby ft Co., PMrnsylvaula B. Co, r. (242
u. s. 88) .\T:
Jaffe T. Lovdl (242 U. 8. 428} 1
Jaffa T. Pyls (244 U. 8. 66® 7
JaBe T. Westphalen (242 U. S. «S6) 1
James t. IMawarst Ll ft W. B. Oo^ (244
U. 8. «6m _r^T
James CXaix IMstUUiw Co. '
BxpL Q». (242 U. S.S11>...
James Clark DIstillinr Go. r. .
Maryland B. Oo. (2421T. S. Sll). .
Jamea SSUott ft Ock, United SUtai V. (243
U. S. 97) 3
Jennings v. Smith (248 U. 8. 630) 3
Jensen, Southern Pac. Co. t. (244 U. S. 206) 5
Joiiu Cburcb Co. T. Biilierd Hotel Co. (242
U. S.581) 2
John Davis Co., Illinois Surety Co. t. (244
U. S. 376) e
John Schroeder Lumber Ca v. Bajney Lum-
ber Co. (242 U. S. 644) 2
Johneon. Crane T. (242 U. S. 839) 1
Jobnson, Gratiot County State Bank v.
(243 U. S, 645) 4
Johnson y. McAdoo (244 U. S. 643] 6
Johnson, McNanghton t. ^2 U. 8. 344) ... 1
Johnson, Sowers v. (243 U. 8. 662) 7
JtdiDSOn Co., Grlnnell Waahlng Much. Ca
T. (242 U. 8.627)
Johnston, Gannon T. (24S U. S. 108) 3
JoinesT. Combs (242 U.S. 619). 2
Jonea, Do«>el t. (244 U. S. 806) 6
Jones, National Loan ft Dzchangs Bank of
Greenwood v. (243 U. 8.668) 4
Jones, Peonle's Nat Bank ot OreenTlIle, 8.
0., v. (243 U. 8. 660) 4
Jordan, Albert I^ck ft Go. t. (244 U. 8. 6«7) 7
J. Wile Sons ft Co- United States t, (243
U. S.OT) B
Kalamazoo City Sav. Bank, National (Sty
Bank of Cblcap> t. (243 U. a 647) 4
Kane t. State of New Jersey (242 O, S. 160)
Kansas, Briggs r. ^2 U. 8. 610) 2
Kansas, Terry t. &a D. 8. 662) 4
Kansas GItr, U. ft B. B. Oo. t. Stll« Q42
U. 8. Ill)
Kansas ex rel. Brewster, Atchison, T. ft a
F. a Oo. T. (242 U. S. 664)
Kansas es rd. Brewster. Misatnul, E, ft
T. B, Co. V. (242 U. 8. 669)
KatzmaJer t. Munsey Tniat Co. (242 U. S.
620) 2
KavanauKh, Mclntyre t. (242 D. 8. 138). .
KearsHTge Land Co., Ton Banmbadi t. (242
U. S. 603) 2
Keith. Edwards t. (243 U. a 638) 4
Kelly T. Pennsylvania E. O* (243 U. a
Kelly, United'at8'te8T.'(243 ul'S-'si^!!; 3
Kennej, Supreme l4>dge of World, Iioya]
Order of Moose, T. (244 U. 8.652) 6
Kenny v. Miles (244 U. a 653) 6
Kenofskey, United SUtea v. (243 U. 8. 440) 4
Keyes v. People of State of Illinois (242 U.
a 610)
Keystone Cosl ft Ooks Oo. t. Feketa (242
tf. 8. 635)
Keystone CoaJ ft Coke Co. t. Helmlinger
$4B U. S. 636)
Keystone Coal ft Coke Oo. t. Huller (242
tJ. S. 636)
Keystone CoO. ft Coke Co. t. Tlirr (242 U.
a 630}
Keystone Wood Oo. t. Suaqnehanna Boom
do. (243 U. a 650) 4
Kilayco t. United States (243 V. 8. 62S). . 4
KilEore, Dx parte (244 U. B. 648) 7
Kihner, Lehib VaUey B. Oo. t. &42 V.
S. 627)
Kinunerle, Taylor t. (242 U. a (00)
Kinney t. Bice 7
Kinaolvlns, UoGoldrlA Lomber Co. t. (243
U. 8. ffi(2) 4
KIntuer v. Atlantic GomtnunJcatlon Oo. (244
U. a 661) 7
Knauth, Nacfaod ft Kvhne t. Latfaan ft
Oo. dii2V.B. 429 1
D,at,z.d-,.'^-.00'^IC
OASSS BBPOBTBID
Knott, Pdllman Oo. t. 048 V. 8. 447) 428
Konhoff, Chesapdake ft O. R. Oo. t. (242
U. S. 658) 17
KroDprinzeBaiD 0«ciI1e, The (North Germaa
Uojd T, Ouanuitr Tru»t Co. of New
York, 24S U. 8. 637). 402
KroDprlnteBstn CecUie, The (North Qernum
LloTd T. Guaranty Trust Co. of New
York, 244 U. S. 12} 490
Krygw V. Wilwm (242 U. S. 171) 84
Kul^, Standud radiioa Co. t. (248 U. S.
847) 406
Law T. EiMri (243 U. S. 831) 477
La Joya Grant t. Board of Tranteea of B»-
leu Land Grant (242 U. 8. GOS) 21S
I^ke Shore ft U. 8. R. Oo. r. OloUEb (242
U. S. 87B), 144
lAm PiUB Ten r. Prick (242 U. B. 842). . 118
La MoDtaene'e 8ona Co., United Statea t.
(243 D. S. OT) 846
I^e V. Hoglund ffl44 U. 8. 174) OSS
t«De, Santa T6 Pac. B. Co. T. (244 U. 8.
492) 714
L«n^ State of New Meiteo >. (248 V. S. ^_„
62) 848
lAoe. United States ez reL Seynotds r.
(244 U. 8. 684) ..748
iMgUl, Pennajlrtnia R. Co. t. (242 C 8.
Lanpim.'BjndV.'0^ u! 8.*6iB)'!i""' 246
Ln&omT. McKeel (244 U. B. SS2) 706
l^la, niinoia CenL E. Co. t. (212 U. a ^_,
647) 2«
I^peyre. GasquBt T. (242 TT. S. 867) 168
Later Grain Co. t. United States (244 U. _,,
8. 047) i--.iW;-- "*
LeSBwell Land ft Lamber Oo. T. Lea Wflaon
ft Co. (242TI. 8. 6K) 246
t«tbam & Oo., Enanth, Nadod ft Enhna
T. {242 V. S. 426) 189
Latta, Riven ft Harbors Imp. Co. r. (248
U. 8. 649) 476
lAjrinan Mach. Oo^ F. P. Slocoad) ft Co. t.
^42 U. 8. ffitn 18
I«Tton, LoBlsvUle ft N. R. Co. t. (248 U.
S. WT) 486
Xi. A. Westennan Co. t. Dimateh Print-
ing Oo. (242 n. S. 688) Ul
LUBTUB, Mtchel ft Luams t. Hardinf (248
TJ. 8. 6621 741
II B. SUnner Utt. Co., UanH t. (244 U. 8.
683) 680
lieaoh, BalUmore ft O. R. Oo. t. (248 U. 8.
639) 404
Ledvinka v. United Statea (242 U. 8. 682) 16
Ledwttch. Lord r. (242 U. S. 686) 18
Iiee T. Ft Worth BaT. Bank ft Tmst Oo.
(248 U. S. 646) 406
Iiee Unc Steamers t. Atlas Tianw. Oo. (248
TJ. a. 643) 408
Lee Wllwm ft Co., Lanw^ I^nd ft Ijonim
Co. Y. J242U. 8.682) 248
Lchieh T^Uey B. Oo. t. Btriow (244 O. 8.
183) 818
LeblEh Valley E. Co. t. Braens (242 V. S.
627) 14
Lehleb Tall^ B. Oo. t. Bmena (242 TJ. 8.
C2» 14
L^b Tall^ B. Oo^ T. Etlmw (242 IT. B.
LehlKbVali^'lL'Ov.'T.'Un{ted'stittM(248
U. S. 412) 807
Lehlsli Valley B. Oo. t. United States (243
U, 8. 444) 484
ttflraiiT. City of AtlanU(242U. &(W... 70
Lcrite ft Co., WeMern Tiusit Co. t. 042
U. 8.44S) 18S
Lewis T. Caledonian In& Co. ^42 U. 8.
636) 19
Lewis T. United SUtea ^44 U. 8. 134). . . 070
He T. San Frandsco ft Portland S. S. Co.
(248 U, a. 281) 270
LinkoDs v. Virsinlan R. Co. ^42 U. 8. 630) 18
Lipscomb, Western CMl ReflnlnK Co. t. (244
U. S. 346) 628
Loewe, Savings Bank of Danbnry t. (242 __
U. 8. 807) 172
Loewentlial, Qeorsla Coast ft P. B. Co. t.
(248 U. B.644) 4(»
Long Sault Dovelofmcnt Co. t. Call (242
U. 8. 272) 79
Lo Pone T. Dunn (242 □. 8.844) 214
Lord T. Ledwttch (242 U. 8.686) 19
Lorenso Song Chongco v. United Statea
^42 U. 8. 664) 240
Loriek, Seaboard Air Line Ry. T. (243 U. 8. _^
872) *40
Lorsch ft Co., United Statea t. (248 U. S. ^^_
97) 8«
Lottv. Pittman (243 U.S. 888) 478
Louisiana, United 8tat« ex rel., t. Boar-
man (244 U. S. 397) 800
Loolaiane, United Statea ex reL, t. Jatit ..
(244 U. 8. 397) ■ «0B
Louisiana ex rel. Pariah Board of Schocd
Directora of Parish <rf Ouachita, I4U, <aty _
of Monroe t, (242 U. 8. 667) 16
Louis M^era & Son, United Statea v. 048
u. s. vn 84*
lAolsTDle Bridge Oo. v. United Statea (242
U. & 40ft) 188
Lonisvllla tL Co., Greene v. (244 U. 8. 49S) 678
Louisville 4 L E. Co., Greene ». (244 U. 8.
499) 878
LoatsvUle ft N. B. Go. t. Croan (242 U. &
610) IT
Loniarilb ft N. R. Co. v. Greenbrier Dis-
tilllnx Col Q4S U. B. 609) 4(a
LmiisvQle ft N. EL Co. T. Greene (244 U. 8.
522) 683
liDnliviUe ft N. R. Co. T. Layton (248 U. 8.
617) 466
Louisville ft N. R. Co. t. Ohio Valley Tie __
Co. (242 D. S. 288) 120
Looisville ft N. R. Go. v. Parker (242 U. 8.
13) 4
LouiBville ft N. R. Co. ▼. United SUtes
(242 D. S. 60) 61
Lonisville ft N. R. Co. v. Weotara Union
TdL Co. (242 U. S. 666) 240
Lontaville ft N. EL Co., Western Union Tel.
Co. V. (214U. 8.649) 743
Lorato v. SUte of New Uezico (242 U. 8.
19B) 107
Lovell, Jaffto V. (242 U. S. 426) 139
Lowev. Hubbard (242 U. 8. 604) 12
Lowe ». WeW (242 U. S. 664) 12
Lowell T. Sweetsw (242 U. 8.646) 240
Lowd V. Sweetser (243 U. 8. 660) 476
Luckenbadb v. W. 3. UcCalian Sugar Re-
fining Co. 042 U. B. 038) Ill
LadtLaud Co., Didiaon v. (242 U. 8. 871) 167
layman T. McCarthy (242 0. 8. 6S6) 12
Lyndi T. Hornby @43 U. 8. 640) 404
Ivndi T. Tnrrisk 048 U. e. 689) 404
I«aa T. Blow (244 U. 8.660) 745
Mabse, Ud>euld t. 048 U. 8. 90) 848
McAdoo, Johnaon t. 044 U. S. 643) 649
HcAUlater v. Oheoapeake & O. R. Co. (243
U. & 802) 2T4
Hnka NM. Bank T. (248 D. 8. 26) 870
A^^OO^IC
B7 SUPBEUB COUBT BSPOBISB
UeCahan Siinr B^nlns Co.. Laekenbadi
T. CJ42U. 8.638)
UcCarthr. LriDBn T. [2*2 V. B.WAi
UcQuake? t. Uaryivm* & N. B. Co. (243
U. S. 3&)
UcCoach T. InBarann Oo. of North Amer-
ica (244 D. 8. 68B)
UcComoB, Northern Fac. B. Co. t. (24S U.
S. 853)
UcCoUough, GUcreaae t. (243 U. 8. eS3). .
UcDftde, City of Monttomer; t. (242 V. S-
ei4)
UcDonald V. Mabee (248 U. S. MJ
HcDonald t. McDonald (242 D. S. 660) . . .
UcDonald, Maxwell t. (242 C. B. 660) ....
McOoldrieV Lumber Oo. t. KlnoolTing (24S
U. S. 832)
licOrew, UJnoari Pac R. Co. t. (244 D. S.
191)
UcGr«w Coat Co., Mlraoori Pac B. Oo. t.
(244 U. S. 191)
McOuIu, Bontheni R. Co. t. (244 D. S. 6H)
Uaclntrra, Qorertimeat of Cuial Zone «x
rel., Smith t. (244 U. 8. 6561.
Uclntyrc r. KavBDaoch (242 U. 8. 188). . .
UcKmI, Luham T. (244 U. 8. 5S2)
UcKain«T. Mt Vemon k Marshall Hall
Steamboat Co. t. (243 V. 8. 6S5)
HeElbbin, PbfladdphU & B. B. Oo. t. (243
D. R 26*}
McEnicht, fit I^mla, I. U. ft S. B. Cdl T.
(244 r. B. 868)
UeLaachllD, Chesapeake ft O. B. Ca V.
C42 U. 8.142)
UeLauthlin. St Loals Bouthwestem B.
Co. T. (244 D. S. 664)
HcNaDKhtou T. JohasoD (242 U. S. 844). . .
If cWhirt, Chicaso ft A. B. Oo. t. (243 tl. 8.
422)
HactrlTUam r. President Bnapender Go. (24S
Hadaen. Defawan,' L.'ft wl 'b.' 'Co.'t.' (244
Maidotjw'ma' t"(M2*D. "S." 640) " ! ! ' * t ".!
UataM NortliweBtem Derelopment Oo. t.
Nordiwertcni CwnmercUl Co. (244 U. 8.
«t»
Ualone, Coba t. (243 U. S. 634)
ICalone, Coha T. (24S U. &e49}^..
Halonv. Bondi v. (242 U. 8. 626)
Hanitoo Sprion Hineral W«tu Co.,
8cbMferY.(243U. 8. 646)
iUalj, Orlbe t. (242 U. 8. 606)
>i.ini.faij, Chkaxo Great Western B. (3a. t.
(243 D. 8. MS)
HaniitBCtiireTs' Ucht ft Heat Cdl t. Ott
(242 V. a. 604)
lUndliu^ SU^r. 048 D. 8. 661)
HanhaO, Bx parta ^ n. 8. SS4).
UarduU V. BaekDB (242 n. B. 638)
Ibrahall T. Badnia ffi43 U. a 66^
Haraliall T. Qordon (243 D. S. 621)
MarUn, Haniace T. (242 U. 8. S8»
Hardndale, Hathaway t. (243 U. 8. 601). .
HMTOTllle ft N. B. Oih, Mcatuker v. (24S
n. B. 86)
Uaaland, EL I. Do Pont De Namonrs Pow-
der Go. t. @44 n. 8. 100)
Uason T. United 8tatea (2U V. B. 862). . .
Uaetera t. UoDohan (242 U. 8. 662)
Uanll T. L. B. Skinner Mff. Co. (244 IT. B.
6S8) ---
Haxwen. H(«.T. (242 U. B. 846) 240
Haxven t. lldOcmald (242 U. 8. eSW. 243
Uaycra t. TTbIod B. Co. (243 U, 8. 666) . . . ""
Uehloa T. atr of BOInankee (242 U. 8. «!«
Ueiaakaa >. OreenoDiJi Bed Aah Ooal Oft
(944 n. B.B4>
Udlon, St Louia Union Ttiut 0& v. (2tf
U. 8.666) a
MelTln, Norfolk ft W. B. Co. t. (243 U. &
660) 4'
MemphU St K. Co. T. Bobo (242 U. 8. 626) :
Memphiaet R. Co. t. Bobo (242 U. S. 694) 2.
Memphie St B. Co. v. Moore (242 U. S.
626) :
Memphia Bt B. Co. r. Hoore (243 D. 8.
299) 2-
Mercbanta' ft UanafaMurere' Traffic Aea'n
of Sacramoito, United Statu t. (242 U. S.
178) :
Unsenthaler Linotypt Co. v. International
Tn>esettin( Hach. Co, (243 D. S. 642). . . 41
Merxenthalcr Unotrpe Co. t. Intertype
Corp. ©43 U. 8. M2) 41
Herko, Stnrm ft Dillard Ga t. ^42 U. S.
680) :
Merrlam Co., Saalfield Fob. Co. t. (243 D.
S. 661) 4'
Merrtci T. N. W. Hals^ ft Co. (242 U. &
668) 21
MmlU ft Bins Losgins Co., Ba; t. (248 U.
S. 40) t
Meeoina, IlUnoia Gent B. Gol t. (242 U. 8.
663) 2'
Metropolitan Life loa. Go. of New Torfc,
EYederlckT. (243 U. 8.640) «
MetEser. Dinwlddie v. (242 IT. S. 8S1). ....
Mexico-WTOmins Petroleum Co. r. Valenr
dno (248 D. ff 687) *
Meyer, Bobb T. ^42 U. 8. 660). i:
Ueyera T. United States (242 U. B. 627) .. .
U^KS ft Boa, United States t. (24S D. B.
Sh 8'
H. H. Pnlaaki Co., United States r. (243 U.
8.97) &
Hidiinn. Detroit United By. r. (2U U.
sT&W
Michigan Cent B. Go. t. Tripp (243 U. 8.
648) 4
MIddleton. Dabney t. (242 U. 8. 661) 1
Mlhni T. State of New Jersey (244 U. B.
268) »
Miles, Samy t. (244 D. a 663) 6;
Miller, IHlnoia Surety Ca r. (242 U. 8.
614) 1
liOller, WeUavUIe (Ml Go. t. (243 U. B. Q 8l
lOUer Bnbber Oo. r. (Stiiens' Trust ft Sav-
tnfi Bank (242 U. S. 628).
UUwtokee, Mrtihis v. @42 t. 8.668)
Minis, Atlantic Ooert line B. Co. t. (242
n.B.B82) 1
Minerals Separation t. Hyde (242 V. S. 261)
Uinneapolis ft St L. B. Oo. r. Davla (242
D.8.«m. 2
MbinewoUa ft 8t U B. Oft T. Gotachall
(244U. B. 66) 8
Mlnneapolla ft St U B. Co. V. Nash (242 U.
8. m^ 2
Minneapolis ft St U B. Oi. T. ThompwMi
(242 U. 8. 623) 2
Minneapolis ft 8t U B, Co. T. Winters (242
'. wisiciii^' (242* UV S.' 654) '.'."
_____ _ E. R. (Tommiaaiaa t. Mobile ft
O. B. do. «44 U. B. 888) 6
ICisaiKlppl Blvcr Commission, Oibblns T.
(242 K 8. 668).
Miasoiirl es reL Barker, Armour PacUnf
Co. T. (242 U. 8. 66^ 2
Misaoul, K. ft T. B. (Jft V. State of Kan-
sas ax rd. Brewster 042 U. S. 66^
UlMonrl, K. ft T. B. Oft of Texas t. Ga*-
. sady (242 U. B. SU)
A^iOOglC
CASES BEPOETBD
Ifinonri, K. ft T, R. Co. o( TeiM ». Ward
(244 TJ. S. 383) 617
Missourl Pac H. Co. t. Dugcan (243 D. 8.
657) 401
Missouri Pac. R. Co. t. McGrew (244 U.
S. 191) B22
Missouri Pac. B. Co. t. McGrew Coal Co.
(244 U. S. 191) MS
Missouri Pac. R. Co. v. Taber (244 U. a
200) '""
I. s.ai
. 293
Mobile & O. R. Co., Miasisalppl R. B, Com-
mission t. (244 U. 8. 3SS) 602
Mobile ft O. B. Co., lliofflpsoti r. (243 U. S.
. 401
MolJDO Plow (3o., Omaha Baum Iron Store
Co. ». 'p44 U. S. 650) (43
Moliae Plow Co., Omaba Iron Store Co. t.
(242 U. 3. 649) 242
Mollohan. Masters v. (242 D. S. 652) 24S
Monroe t. State of Ijouisiana ex rel. Parisb
Board of School Directors of Pariah of
Ouachita, La. (242 U. S. 657) 16
Montea, Huertas v. (243 D. S. 628) 403
MontKomerr t. Greene (242 D. S. 613) 20
MoDtEomer; v. McDnde (242 TJ. 8. 614), , . 20
Hontgomer? Ught A Water Co.. Montgom-
ery Traction Co. v. (242 D. S. 828) 14
Uonteomery Traction Co. v. Montgomerj
Ldght ft Water Co. (24211. S. 628) 14
Moore, Memphia St. B. Col t. (242 V. S.
Moore, MempUs St R. Co. t. (243 U. S.
2a&) 273
Moore. SL Joeeph ft G. I. E. Co. t. (243
U. S. 811) 2T8
Morehead. United States v. (243 H. S. 607) 468
Morgan, Brandt ». (243 71. 8.861) 479
MorriiirBiiga V. (244 U. S. «i7) 744
Morrif, GriSJa v. (242 U. S. 636) 19
Motion Picture Patents Cki. v. UnlvBraal
Film Mfg. (>>. (242 U. S. 637) 21
Motion Picture Patent* Co. v. Universal
FUm tits. Co. (243 U, S. 502) 416
MonnUin Timber (^. *. State of Washing-
ton (248 U. 8. 219) 280
Ml Temou ft Marshall HaU Steamboat Co.
T. McKenney (248 U. S. 665) 480
Mraz, Valley S. S. Go. v. (244 U. S. 202t. . 523
Unller. Keystone Coal ft Coke Oa t. (242
U. S. 636) 18
Muller ft Co., United Statea v. (243 U. &
87) 846
Hulflgan, Atlantic Ooaat Ldne B. Co. v.
(242 U. 8. 820) 241
AluUingB, Ohamberlin v. (243 U. S. 635) . . . S90
Mun?en, Cbristopher t. (242 U. S. 611) 18
Munsey Truat Co., Katzmaier v. (242 U. S.
620) 241
Munson B. 8. Ijne, Glasgow Nav. Co. t.
(243 U. S. 613j 406
Myers Mfg. Co., (Goshen Mfg. Co. t. (242 U.
eapolls ft St. Ik B. Go, T. (242
2
I. ft St L. B. Go. r. Banks (243
D 4
I. ft St L. B, Co. r. Henry (24S
I. ft St L.' B. Cto.,' United StaUs
National Bank of BameaTlUe, Ohio, Town
of Newbern v. 042 U. 3. 634) -
National Bank of Commoae ttB '
Oraudison (242 U. S. 64^. .
National City Bank of Chicago r. Kalama-
roo aty SaT. Bank (248 U. 8. 647) 406
National Loan ft Exchange Bank of Green-
wood V. Jones (243 U. S. 668) 401
National Malleable Castinga Co., T. H.
Symington Co. v. (242 U. 8. 625) 16
Neal, Paine Lambar Co. v. (244 U. 8. 459) 718
Nebraska ex reL Bittenbendcr t. Excise
Board of City of lincotn, Neb. (244 U. S.
845) 661
Nebraska ez rel. O'Shea, Farmera' Itr.
Dist T. (244 U. S. 325) 630
Ness, United States v. (242 U. S, 634) 18
Netherlanda-AJnerican Steam NaT. Co.,
Bakker T. (242 U. 8-661) 246
Nerada-Galifomia-Oregon Ej, t. Burrua
03)..
. 676
Newark, Ohio (242 D. 8. 405) 156
Newbern t. National Bank of BamearlUe,
Ohio (242 U. 8. 834) 18
New Jersey, Kane v. (242 U. 8. 160) 30
New Jersey. Mihm t. (244 U. S. 258) 508
New Jersey, Nonea t. (243 U. S, 660) 478
New Jersey, Sutton v. (244 U. 8. 258) 608
New Mexico T. Lane (243 U. S. 62) 848
New Merico. Lovato ». (242 U. S. 199)... 107
New Tork, Brown t. (242 U. 8. 812) 19
New York, Press t. (242 U. S. 618) 214
New York Cent B, Ca v. White (248 U. 8.
188) 247
New York Cent E. Co. t. WiD6eld 044 U.
8. 147) 846
New York Cent ft H. B. B. Co. v. Beaham
(242 U. S. 148) 43
New York (Jant ft H. E. B. Co., General
Electric Go. T. CM3 U. S. 636) 400
New York Cent ft H. B. B, C^. v. Tonael-
Uto, two eases (244 U. 8. 860) ^0
New York Ktectric Lines Co. t. Gaynor (242
U. S. 617) 212
New York Eya. Ca. Hamer v. (244 V. 8.
266) 611
Ng. Sam, United State* ez rel., v, Wallis
(243 U. 8. 664) 480
Nicholas ft Co. V. United States (242 U. 8.
641) 113
Norfolk Southern E. Co. r. Chatman (244
U.S. 276) 499
Norfolk ft W. E. Co. v. Melvln (243 U. 8.
660) 478
Nones y. State of New Jersey (243 U. 8.
850) 478
North Carolina, Btq>ublic of Cuba v. (242 D.
8. 665) 649
Northern Ocdorado Irr. Oo„ O'Neil t. (242
n. S. 20) 7
Northern Pac B. C^. t. Gilford (242 U, 8.
650) 21
Northern Pac. R. O. v. UaComta (243 U.
8. 658) , 480
Northern Pac E. Odl, United States r. (242
U. S. 190) 22
Northern Eealty Co., Cnrehoga Birer Pow-
er Co. V. (244 U. 8. 80(9 643
North German Lloyd t. Guaranty Tnut
Co. of New York (248 TT. 8. 687) <rt2
North Gernuui Uoyd *. Qnaranty Traat Co.
Uoyd, Rantool t. (248 D. B.
A^iOOglC
87 SUPREME COURT BBPOBTSm
Northwestern Commerdal Co., Moina
Northweatem I^velopoient Co. v. (244 U,
S. 355) 7-12
Northwestern Terra GotU Co., Caldwell v.
(242 D. S. ai3) 212
Notarbartolo. Zavaglia t. (243 V. S. 828). . . 403
Nnnn t. United States (243 U. S. 389) 3fi7
N. W. Halsey & Ga, Merrick v. (242 O. 8.
B6S) 2:i7
Ontes T, United States (242 U. S. (W3) 71
0'Hrien T. Rockefeller (244 TT. S. 650) 74:*
Ocean S. S. Co. t. United States Steel
Prodnets Co. (244 U. S. 652) 0.''.0
Oesting t. United Statps (242 U. S. 647). . 241
O'Hara, Simpson v. (243 U. S. S291 4"
O'Hara, Stettler v. (243 U. S. 629) 47"
OhioT. Ferris (242 U. S. 634) 18
Ohio River Contract Co. t. Gordon (244 U.
s. m BSa
Ohio VaUey Tie Ga, LonUville ft N. R. Co.
y. (242 U. S. 2S8J 120
Obme, dereland. (3., G. & St. L. R. Co. t.
(243 U. 8. 642) 404
Oklahoma, American Eip, Go. t. (242 U.
S. 662) 114
OUahoma, United States Exp. Co. v. ^2
U. S. 662) U4
Oklaboma, Wells Fargo & Co. Exp. T.
(242 U. a 662) 114
Old Dominion Iron ft Nail Works Co. v.
Chewpeake ft O. R. Go. (242 U. S. 623). . 244
Olivit Bro*- Puittt;lvania R. C3o. t. (243
U. S. 574) 46S
Omaba Baum Iron Store Co. t. MoUne
Plow Co. (244 0. S. 650) 743
Omaha Iron Store Ca v. Aloiine Plow Co.
(242 U. S. M9) 242
Oneal t. Stewart (243 U. S. 645) 400
O'Neil V. Northern C!olorado Jrr. Co. (242
D. S. 20) 7
Openhf m ft StMiB, United SUtes t. (243 U.
sTftT) M6
Owenhdmet, United States t. (242 U. S.
OresonVBimting V. "(243 U.'s.' 426) ."""!!' 435
Otwmi ft a R. Co. v. United States (243
U. 8. H9) 443
O'Sbea, State of Nebraska ox reL, FarmerV
Irr. Diet. V. (244 U. 3.326) 630
O'Tode, United States v, two cases CM3 V. __
B. 47(8 407
Ott, Maanfacturers' Ught ft Heat Co. y. _
C42 U. S. 664) 213
Own, Indian Land ft Tnurt Go. r. (244 V.
87657) 744
Owensbaro, Kr., t. Oweniboro Water
WorkaCa ffi4SU. S. 16« 822
Owensboro Water Works Co., City of
Owensboro, Ky., T. (248 U. S. 166) S22
Pkbat Brewing Co., B. Clemens Horrt Co.
T. (242 U. S. 637) 19
Packard Oo„ Standard Gas Ught Go. of
aty of New Totk y. (244 U. S. 650) . ... 746
Paine LnmbM- Co. t. Neal (244 U. S. 45fl)- ■ 718
Pskaar. UQitad8Utss@43U. S. 647).... 475
Parish Board of School Dir«ctois of PuiBb
of Ouachita, La., State of Louisiana a
reL, City of Uonroe t. (242 U. a 667). . 16
^rkw, AtUnde aty H. Co. t. (242 U. 8.
66) 69
Parker, LoaisTllIe ft N. B, Co. t. (242 U. a
IB) 4
Parker T. Ross (342 U. a6S4)... 18
PeAer, Wot t. (242 U. a 64Q 238
8T&CL-4I
Parlt Sqnare Ant<»noMle Station, B!x parte
(244 C. S. 412) 7
Part Square Automobile Station v. Ameri-
can Locomotive (3o. (243 U. S, 633) 4
I'ark ft Tilford. United States v. (243 U.
S. »7) a
Parrot SUver ft Copper Co., Wall t, (244
U. a 407) 6
Possaic, Public Service Gas Co. v. (242 U.
S. COS) 2
Pateraon, Public Service Gas Co. v. (242
U.a606) 2
I'eaae v. Rathhun-Jone:i Engineering Co.,
two cases (243 U. S. 273) 2
I'ltry. UlinoiB Cent. R. Co. t. (242 U. S.
202) 1
Pendleton v. ATnericnn Warebouse & Trad-
init Co. (243 n. a 643) 4
Pennington \. Fourtli Nat Bank of Cin-
cinnati, Ohio (243 U. a 269) 2
Pennsylvania, Growl t. (252 U. S. 163). ...
Pennsylvania f^re Ins. Co. of Pbtln'IeJpbia
T. Gold Issne Min. ft MiU. (^ (243 U. 8.
98) 3
Pennsylvania B. Co. t. Brown (242 U. S.
646) 2
Ponnsylvania B. Go. y. Carr (243 U. S.
5S7) 4
Pennsylvania B. Co., Kelly t. (243 U. a
646) 4
Pennsylvania R. Co. t. langill (242 V. 8.
667) 2
Pennsylvania B, Co. t, Olivit Bros. (243
U. 8. 574) 4
Pennsylvania B. Co. v. Sonman Shaft Coal
Co. (242 U. S. 120)
Pennsylvania B. Go. v. SUneman Goal Min-
ing Co. (242 U. S. 298) 1
Pennsylvania R, Co., United States v., two
cases (242 U. S. 208)
Pennsylvania R, C!o. t, W. F, Jaeoby ft Co.
(242 U. S. 89)
Pennsylvania Tunnel ft Terminal B. Go. t.
Hendrickson (243 O. S. K!S) 4
Peonle of Porto Rico, Abella v. (243 U. B.
627) 4
People of Porto Rico, Oardona t. (244 U.
a 645) fl
People of Porto Rico, Central Fortuoa v.
(243 U. a 669) 4
People of Porto Blco, Diai t. (243 U. 3.
«t7) 4
People of State of IDInois, Keyes v. (242
O. S. 610)
People of Stato of M'chlgan, Detroit United
By. T. (242 U. a 238)
People of State of New York, Press y. (242
U. S. 61» 2
People's Nat. Bank of Gremville, 8. C, r.
Jones (243 U. S. 65W 4
Philadelphia ft R. R. Cto. t. UcKibbIn (243
U. S. &4) 2
Philadelphia ft B. S. Go. T. United States
(244 U. S. 644L- tJ
Phillips, Union Paa B. Co. t. (244 U. 8.
856) 7
Pick ft 0«K T. Jordan (244 U. 8. 647) 7
Plttman, Lott y. (243 U. a 588) 4
PlttehnrBb, C, a ft St li. R. Co. T. Farto-
erB" Trust ft Savings Oo. (242 U. S. 658)
Pblend, United State* v. (243 U. S. 663). . 4
Porto Jtico, Abella V. (243 U. S. 627) 4
Porto Rico, Gardona v. (244 D. S. S46)... 6
Porto Blco, Central Fortune y. (248 U. S.
659) 4
Porto Blcoi Diss T. (243 U. a 627) 4
D,at,z.d-,.'^-.00'^IC
OASES BEPOBTED
PoTttiEueM-Amerlcati Bank of Son Froii-
ciBco V. Wellea ('^42 U. S. T)
Prairie Oil & Gas Go. v. Carter (244 U.
S. C48) '
Prairie Oil & Gas Ox v. Carter (244 U. S.
(!4li)
Presb;
v. k 6.",)
Home Hospital v. Qooch (243
Pr«!<i[l<>Dt SusiiPiider Co., Macwllliatn v.
(24.1 U. S. GRG) a
Press V. rmple or State of New York (242
U. S. fiiai 2
Prince, F.x parte (243 U. S. 027> 4
PrlDCe Line, United States t. (242 tJ. S.
5STl 2
Public Service CommifuiioD of Indiana, Van-
dnlia R. Co. v. (242 V. S. 255)
Publii; Kervice Coiamission of State of Went
Vireinia, Chcsatieuke & O. R. Co. T. C2A2
U.S. 603) 2
Public Service Gus Co. v. Board of Public
Utilities Com'rs of State of New Jersey
(242 v. S. 6661 2
Pnblif Service Gm Co. t. CHt; of Passaic
(242 U. S. 667) 2
Public Service Gas Co. t. CStj of Paterson
(242 u. s. em 2
Puckftt. Southern R. Co. v. (244 U. 8. 571) 7
Fuckett, Wicliitn Falls 4 N. W. R. Co. v.
(242 U. S. 010) 2
Pniet Suuod Traction, Liitbt & Power Co.
V. Reyuolds (244 U. S. 574) 7
Pulaski Co.. United States v. (24S U. S.
67) - . - . .
Pnllmau Co. t. Knott (243 U. S. 447) 4
Purucker, Erie R. Co. v. (244 U. 8. 320) ... ^
Pyle, Jaffe T. (244 U. S. 668) 7
Qnlnn, Feiuberg v. (242 U. S. 657)
Radford, SeUlne ». (243 0. S. 48) 3
Railroad Ooromifi'lnii of Wiftconsln, Duluth
St. R. Co. ». (242 U. 8. 669)
Railroad Supply Co. v. Elyria Iron 4 Steel
Co. (242 U. 8. 603)
Railroad Sujmly Co, v. F3;ria Iron ft Steel
Co. (244 U. S. 285) B
Railrnnd Supolv Co., Hart Steel Go. r. (242
Haiirond Supply Co., Hart Steel Co. ». (244
U.S. 204) I
Bnlcijth. Seaboard Air line Ry. t. (242 U.
, 15)..
Rainey I>unib(T Co.. John Scbroeder Lum-
ber Co. V. (242 U. S. ftl4) !
Ram^uiv. Stewart v. (242 U. S. 12S)
Ran-lle. Wanhineton T>oan & Trust Co. r.
(243 r. s. cnz) a
Rantool t. North German UojA (243 U. R.
6521 4
Rathbun-Jones EnKineerine Ca, Pease v.,
two cases (243 U. S. 273) 2
Rayniond v. Chicago, M. & St P. R. Co.
(243 U. S. 43) 2
B. B. Hern? Co.. Uidted States y. (243 U.
S. 071 a
Rend V. Babbitt (243 U. S. 048) 4
Record. Hale v. (244 U. 8. 602) 6
RcctaniiR Co., United Drug Co. v. (242 U.
S. 625)
Red Jacket. Jr., Coal Co. t. United Thacker
Coal Co. (213 U. S. 044) 4
Reed V. Babbitt (243 U. 8. OiS 4
Reed t. Cropp Concrete Machinery Co. (243
U. S, fM9) 4
Bnwrd, rriedriduen t. (2ti U. 8. (OS). ..
Pace
Republic of Cuba t. State of North OuoUna
(242 U. 8. 665) 641*
Reynolds, Hill v. (242 U. S. 361) 163
IteyooldB, I'uget Sound TrBctiMi, Light 4
Power Co. V. (244 U. 8. &74) 705
Reynolds, United States ez reL, v. Lane
(244 U. S. am) 743
R. G. Packard Co., Standard Gas light Co.
of aty of New York v. (244 U. 8. 6o6). . . 74,1
Rice, Kioner t. 742
Richards, American Bank of Alaake t. (242
i:. S. Mai 243
Richards, Tillinghast v. (243 U. 8. 629). .. 403
Kichmond v. Bird (244 V. S. 63*"
. 744
. 470
.. Ah Leong (242 U. 8. 612)
Rivera, Sun Life Assur. Co. of Canada t
(242 U. S. 622)
Rivera & Harbors Imp. Go. t. Latta (243
U. S. 649) 4
Ennch, Great Northern R. Co. ». (242 U, 8.
024) 2to
Robert Muller A Co., United States t. (243
U. S. 07) 340
Roberta. Ex part* (244 U. S. 660) 744
HobioBOD T. Boe (242 U. 8. 630) 15
. & S. B. '
Rocltefeller, 0'BriL_ ,
RiKitrers. St Loula, I
(242 U. S. 608) li*>
Roe. Robinson v. (242 U. S. 630) 15
Rome Ry. &. Light Co, v. Floyd County, Qm.
(243 if. S. 257) 291
Rose. Hall y. (242 U. S. !B9) 217
Rosen v. United Rtntca (243 U. 8. 637) 402
Ross, Parker 7. (242 U. S. 6.34) 18
Rowell, United States v. (243 U. S. 404).. 425
Rowland T. Boyle (244 U. S. 106). 677
Borni Arcanum, Supreme Council of, t.
Bohrend (242 U. 8. 626) 13
R. IS. Howard Co. v. Baldwin Co. (243 U. 8.
(Vifi) 400
Rutledge Timber Ca, West v. (244 U. S.
«0) 687
SaalHeld Pub. Co. t. Q. & C. Merriam Co.
(243 U. S. 651) 478
St. Jorapb & Q. I. R. Co. v. Moore (243
U. 8. 311) 278
St. Louis. I. M. 4 S. R. Co. v. Ingram (244
U. 8. 647) 741
St. I,oulB, I. M. & S. B. Co. v. McKnight
(244 U. S. 388) 611
St. Louis. I. M. ft 8. R. Co. v. Rodgers (242
n. S. 668) 24!i
St, [»uls. I. M. ft S. R. Co. V. Starbird (243
U. S. 592). 462
St. Louis, K. C. ft C. R. Co., Ei parts (242
U. S. 622) 243
St, Louis Iderchanta' Bridge Terminal R,
Cf. T, Schuerman (242 U, S. 662) 2*8
St. Louis, S. F. ft T. R, Co. v. Smith (243
U. S. 030) 471
St, lAiuia Southwestern R. Co. v. Elleuwood
(242 U. S. 056) 13
St, Louis Southwestern R. Co. v. UcL«ugh-
!in (244 U. S. 601) .7.-742
St. Louis Union Trust Co. t. Mellon (242 U.
. 241
L Louis & S. F. R. Co. T. Hodge (244 U.
8. 664) 742
t, IxiuU ft S. F. R. Co, T. Smith (242 U.
S. 069) II
amson v. Garland (242 U. 8. 647) 240
Samuels. Cohen y. (243 U. S. 634) 809
Samusla, Cohen t. (243 U. 8. 000} 478
dbyGoogle
87 8DPRBME UODBT BBPOBTES
Sanden lee Crenm Co. v. State of Iowa
(242 U. S. 153) 80
San I>>aiici8(u & Portland S. 8. Co., lie v,
&iS V. S. 2»1) 270
Santa Fe Pac. R. Co. t. Lana (244 U. S.
482) 714
Sta. Maria. Granada t. (243 U. S. 881) 470
tsargent Lend Co., Von Baumbach v. (242
0. S. 603) 201
Saunders t. Sbaw (244 U. S. 317) 638
Saunders, Southern R. Co, ». (242 U. S.
607) 13
Savinga Bank of Danbnir v. Loetre (242
D. S. 357) 172
Scala, Waabinrton By. ft Electric Co. t.
(244 D. 8. eSO) 664
St^nwbars t. Dollar 8. 6. Co. (242 U. 8.
642) 212
Scbolield, Baker t. ^3 U. 8- 114) S33
Scbroedpr Iiumbcr Co. t. Ramej lomber
Co. (242 U. 8. 644) 214
Schueler T. Maniton Sprinia Mineral Wa-
ter Co. (243 U. 8.645) *00
Schuennan, St Louis Merdianta' Bridge
Terminal B. Co. t. (242 U. 8. 662) 24S
Schwede T. Zenith S. 8. Co. m< U. 3. 646) 662
Seaboard Air Line B. Co. t. Blackwell (244
U. S. 810) 840
Seaboard Air Line Br. t. City of Baleisb
(242 D. S. 15) 8
Seaboard Air Line By. v. Lorick (243 D. S.
572) 440
Seaboard Air Une BT' ▼■ WiUiama (243 V.
S. 631) 477
Sears, Roebuck ft Co., Elliott Taroisb Go.
T. P42 n. a. 635) 19
Secinul Nab Bank of Cincinnati, Ohio, t.
Tint Nat. Bank of Okeana, Ohio (242 U.
fi. 600) 236
Security Tmat & SaTinca Banit, William
B. StaataCto. V. (242 U. S. 639) Ill
Security lYnrt ft SaviDga Bank, William B.
Staati Co. T. fii4S C. 8.121) 336
Selcaa ft Co- United Statea t. (243 U. 8.
97) 848
Selja, The (lie v. San rmndaco ft Port-
land 8. a. Co., 243 U. 8. 291) 270
SellinR, Ex parte (244 U. S. 664) 60S
Selling T. Badford (248 U. S. 46) 377
Semidey v. (Antral AKuine Go. (248 U. S.
602) 479
Beton HaU Collece y. TUlace of South
Orange (242 U. 8. 100) 64
Sevilleta de la Joya Qrant *. Board of
TruBteea of Belen L*tid Qrant (242 D. 8.
595) 216
Shaidej Co., Herbert t. (242 D. S. 691) ... 282
Shan. (Ae«apeaka ft O. R. Go. t. (243 U. 8.
626) 400
Shaw, Sanndera T. (244 n. S. 8171 638
Shaw ft Co. T. United Statea (242 U. S.
641) 113
Shea, Si parta (244 D. 8. 660) 744
Shelton t. Qas Becnrttiea Cio. (244 D. 8.
654) 652
Shelton, Tiedemann t. (244 U. 8. 660) 74H
Shelton, Witte y. (244 U. 8.660) 740
Sheridan v. United States (243 U. 8. 83^ . . 402
Sherman, Chaloner t. (242 U. S. 456) 13fi
Shimery. Wiater (244 U. S. 652) 650
Ridey t. City of Marceline (243 U. S. 681) 478
Silver Kins Coalitioii Uinea Co. t. Conkling
Mining (5o. (242 U. S. 629) 14
Sim V. Edenbom (2^ U. 8. 131) 36
Simpson T. Brent (248 U. 8.639} 403
Simpam t. O^ara (243 U. 8.829) 470
Sima T. BtaA ^48 U. & 642) 406
Sioui Falls Stock Yards Co., CaldweU r.
(242 O. S. 559) 2
Skinner, United Statea v. (242 U. S. 60:1). . 2
Skinner Mfg. Co., Mauil y. (244 U. S. If5^| G
Sloan, Herndon y. (:i-J3 U. S. «33) 4
Slocomb & Co, T. A. C. Layman Maeh. Co.
(242 U. 8. 636)
Smith, Bowersock v, (243 U. S. 29) 3
Smith T. Copiah Coanty (243 U, S. 850). . , 4
Smith 7. Government of Canal Zone ex rol.
Maclntyre (244 V. 8. 656) 7
Smith. Jennings v. (243 U, 8. 635) 3
Smith, St. Louia, 8. F. 4 T. B. Cii. v. (243
U. 8. 830) 4
Smith. St Louis ft S, F. B. Oa. t. (242 U.
S. 668)
Smith y. Third Nat E^ich. Bank of Santliis-
ky, Ohio (244 U. S. 184) 6
Smith V. United Statea (242 U. S, 63(n. , . .
Song Cbongco y. United States (242 U, S,
664) 2
Sonman Shaft Goal (^, Pennarlyania B.
Co, y. (242 U. 8. 120)
Sound Trnnsp. (3o„ Delaware, U ft W. B.
Co. y, (242 U. S. 649) 2
South Dakota ex reL Caldwell, American
Erp, Co,y, (244 U, S. 617) 0
Southern Pac; Cto, y. California A^Jnatment
Co. (243 U, ». 650) 4
Southern Pac. O),. Indnatrial Accident Otn-
miasion of California y, (243 U. 6, 856). . 4
Southern Pac Co., Industrial Accident
Commiaslou of State of California t. (244
U. 8. 653) 6
Southern Pac. Co. t. Jensen (244 U, 8. 205) 0
Southern R. Co. v. Butler (243 U. 8. 646). , 4
Southern R, (3o. y, McQuin (244 TI, S. Kii) 6
Southern B, Co. y. Puckett (244 U. H. 671) 7
Southern B. 0», v. Saundera (242 U. 6, 6671
Soatbem R. Co. In Misalaslppi, Thompson
y, (243 U. 8.608) 4
Southern Ry„ Carolina Dlyirim, t. Driggs
(242 U, S. 812)
Southern By.. Carolina DtvisioD, t. Driggs
(242 U, S. 613)
Southern Snrety Co. r. Board of Com'rs of
Oklaboma County (243 U, 8. 625) 4
South Orange, 8eton HaU College v. (242 U.
8, 100) r^.,,,.
Sowera y. Johnaon (248 U. 8. 662) 7
Spring Garden Ins. Ga ot Philadelphia,
>a.. y. Wood (242 U. 8. 631)
Staata Co. v. Secnrity Trnat ft Sayings
Bank (242 U. S. 639) 1
Staata Co. y. Security Truat ft SayinRa
Bank (243 U. S. 121) 3
Standard Brewery (3o. of Baltimore City.
Interboro Brewing Go. t. (243 U. S. fl3f» 4
Standard Faahlon Co. t. Kuha (243 U. S.
647) 4
Standard Gas light Co, of City of New
Tork y. B, O. Packard Co. (244 U. 8.
669) 7
Standard Undenrround Cable Co., Illinois
Surety Co. t. (243 D. 8. 651) 4
Starbird y. St Louia, I. M. ft S. R. Co. (243
U, S. 692) 4
Stark. Sims y. (248 U, S. 642) 4
State Bank of Clearwater, Neb., t. Ineram
(242 U. S. 602) 2
State of Arkansas, Union Sand ft Material
(5o, y. (243 U. S. 652) 4
State of OalifornJa y, Deseret Water, Oil &
Irrigation Co. (248 U. S, 415) 3
State of Colorado, Stata of Wyoming v.
(243 U. S. 622) 8
State of Elorida as reL Burr, Rorida Eact
<3oart R. Co. T. (242 U. S. &&5)
D,at,z.d>,.'^-.00'^IC
CASES REPORTSiD
State of HUnola, Kotbh v. (2^ D. S. 610). . 17
State of Iowa, HutchinBon Ice Cream Co.
V. (242 U. S. 153) 28
State of Iowa, Saadere Ice Cream Co. v,
(252 U. S. 153) 30
State of Kansaa. BriggB v. (242 U. S. 6151 211
State of Kansas, Terrj v. (243 TJ. S. 662) 4S2
State of Kansas ei rel. Brewster, Atchison,
T. A S. F. R, Co. V. (242 U. 8.654) 12
State of Kauaas ex rel. Brewster, Misaouri,
K. & T. E. Co. V. (242 L". S. 669) 11
State of LouiEiana, United States ex reL, t.
Boarman (244 U. S. 397) 605
State of Ijouisionft, United States ez rel.,
V. Jack (244 U. S. 397) 605
State of Louisiana ex reL Parish Board of
Sl'UooI Directora of Parish of Ouachita,
La., City of Monroe v. (242 U. S. 657).. 16
State of Michigan, Detroit United Ily. t.
(242 U. S. 23S) 87
State of MlnDesota t. State of Wiaconsin
(242 U. S. 654) 12
State of Missouri ez rel. Barker, Armour
Packing Co. v. (242 U. S. (HB) 213
State ot Nebraska ex reL Bittenbender t.
Excise Board of City of Liacoln, Net.
(244 U. S. 640) 661
Stale ot Nebcaaka ex reL O'Shea, Farmers'
Irr. Dist. v. (244 tl. S. 325) 630
State of New Jersey, Kane v. @42 V. S.
160) 30
State of New Jersey, Mihm v. (244 U. S.
258) 508
State of New Jersey, Nones t. (243 V. S.
650) 47S
State ot New Jersey, Sutton t. (244 U. S.
258) 008
State of New Mexico v. lAne (243 D. S.
52) S4S
Stale of New Mexico, Lovato v. (242 U. S.
199) 10^
State of New York, Press v. (242 U. S. 618) 214
State of North Caroiina, Republic of Cuba
V. (242 U. S. 665) 649
SUte of Ohio v. Ferris (242 U. S. 634) 18
State of Oklahoma, American Exp. Co. t.
(S42 U. S. 662) 114
State of Oklahoma, United States Bzp. Go.
V. (242 U. S. eW) 114
State of Oklahoma, Wells Fargo & C^. Srp.
y. (242 U. S. 662) 114
State ot Oregon. Bunting v. (243 U. S. 426) 430
State of South Dakota ex reL Caldwell,
Amencan Eip. Co. v. (244 U. 8. 617) 656
State of Tennessee, Cissoa -v. (242 IT. S.
195) 108
State of Washington, Mountain Timber Co.
V. (243 U. S. ^9) 260
State of Washington, Walter Bowen & Co.
T. (242 U. S. 655) 12
State of Washington ex rel. Grays Harbor
Logging Co. V. CToats-Pordney Logging
Co. (243 U. S. 251) 205
State ot WashingtoD ex eel. Grays Harbor
Logging Co. y. Superior Court for Che-
halis County (243 U. S. 2.'il) 205
State of Wisconsin, State of Minnesota v.
(242 U. S. 654) 12
State of Wyoming v. State of Colorado (243
V. S. 622) 379
State Public Utilities Commission of Illi-
nois, Chicago, M. & St P. R. Co. v. &i2
U S 333) ... . 173
Steele V. Highlaiid PMk"Mf^."6i."(242'u.
S. ftlO) 113
Stephens t. United States (242 U. 8. 633) 16
Sterling LAnd & Inyestment Co., Hendrick-
■on T. (243 D. S. Ml) 404
Stettler v. O'Hara (243 U. S. 629) 475
Stewart, Oneal y. (243 U. S. 645) 406
Stewart v. Ramsay (242 U. S, 128) 44
Stiles, Kansas City M. & B. R. Co. y. (242
U.^. Ill) 58
Stinemnn Coal Itlining Co., Pennsylvania
B. Co. y. (242 U. S. 2081 118
Stone, Erie R. Co, y. (244 U. S. .^^2) 633
Strathalbyn S. S. Co., American-Hawaiian
S. S. Co. y. (242 U. S. ti51) 243
Straus T. Victor Talking Mach. Co. (243
U. S. 490) 412
Stringer, Vandalia R. Co. y. 1242 U. S. 614) 113
Stroup, Carolina, C. & O. Ky. y, (244 U.
S. 649) i, 743
Sturm & Dillard Co. y. Merko (242 U. S.
630) 14
Sullens y. United States (242 U. S. 633). . 16
Sun Co. V. Vinton Petrdeum Co. (242 U.
S. 635) 18
Sun Life Asaur. Co. of Canada y. Biyera
(242 U. S. 622) 244
Superior Court of Washington for Chehslis
County, State of Washington ex rel.
Grays Harbor Logging Co. t. (243 U.
8. 251) r. 295
Supreme Council of Royal Arcanum y.
Behrend (242 U. S, (KM) 13
Supreme Lodge of World, Loyal Order of
Moose, y. Kenney (244 C. S. 652) (BO
Susquehanna Boom Co., Bleystone Wood
Co. y. (243 U. S. 655) 481
Sutton y. State of New Jersey (244 U. S.
258) 608
Sutton Land Co., Von Baumbach y. (242 U.
S. 003) CMl
Sweetaer, Emerson y. (242 U. S. 645) 230
Sweetser. Emerson ». (243 U. S. 660) 476
Sweetser, LoweU y. (242 U. S. 646) 240
Sweetser, Lowell v. (243 U. S. 660) 476
Swift & Co., Detroit Rock Salt Co. y. (243
U. S. 635) 899
Swift ft Co. y. Hocking Valley R. Co. (243
U. S. 281) 287
Swift & Co. y. Hoover (242 U. S. 107) 66
Symington Co. t. National Malleable Cast-
ings Co. (242 U. 8. 625) 16
Taber, Missouri Pae. R. Co. y. (244 U. S.
200) 622
Tankersley, Hovey y. (242 U. S. 656).... 12
Tanner, Adams y. (244 U. S. 590) 6G2
Taylor y. Drainage I>i8t No. 58 of Emmet
County, Iowa (244 U. S. 644) 651
Taylor y. Kimmerle (242 U. S. 630) 14
Tennessee, Cisana v, (242 U. S. 190) 108
Terra Haute, I. & E. Traction Co. y. Wed-
dle (242 U. S. 655) la
Territory of Alaska, Alaska Mexican Gold
Mining Co. y. (242 U. S. tJ48) 242
Territory of Alaslca, Alaska FadGc Fisher-
ies v., two cases (242 U. S. 648) 242
Territorr ot Alaska, Alaska Salmon Co. y.
(242 U. S. 648) 242
Terry y. State of Kansas (243 U. S. 602). . 482
Texas Co., Central Trast Co, of New York
y. (243 U. S. 647). 476
Texas Co., Centra! Trust Ca of New York
V. (243 U. S. 648) 475
Texas Packing Co., Gulf. C. ft S. F. B. Co.
y. (244 U. a. 31) 487
Thaw, Gleaaon y. (243 U. S. 656) 481
Theodore Rectantia Co., United Drug Co. y.
(242 U. S, 62o) 18
Third Nat. Exch. Bank of Sandusky, OMo,
Smithy. (244 U. S. 184) 616
Thomas Cusack Co. y. City ot Chicago (242
U. S. 626) 190
A^iOOglC
ST SnPREUB OOURT BBPORTBB
lluMniMon V. FrankltD Nat. Bank (212 U.
S, 637) 21
Thompmn. UlDueapoliB & St. I* R. Coi. t.
<242 D. S. 623) 244
Thompson t. MobUa & O. B. Co. (243 U.
S. feS) 401
Tbompsnn y. Snnthpni R. Co. [d MisslMtppI
(243 D. S. 65.S) 401
Thomscn t. CHyser (243 n. 8. 6*ft 353
Thry. ICevatoue Coal & Coke Co. t. (242 U.
S. 635) la
T. 11. SyiDingioQ Co. v. Natioiial Malleabla
CnstingB Co. (242 U. S. 625) IB
Ttnlcmann t. Rlielton (244 U. S. 660) 745
tniUiieliaat V. llicharda (213 U, S. K3). .. 403
Tirlou. City of Centralia t. (243 U. S.
ft-iUi 482
ToUito Railways ft Ugbt Oo. t. HiU (244
V. S. 49) (»1
ToRilJHDovich. VIctor-AmericaD Bhiel Oo. t.
(242 U. S. 643) 212
Tonxellito. New York Cent, ft H. R. R.
Co. v., two caseM (244 U. R. 36(^ 620
Torrance y. Firat-Seoond Nat Bank of
Fittaburgh (242 U. S. 660) 112
Town of Newbem y. National Bank of
Barneaville, Ohio (242 U. S. 6.S4) 18
Triivcl^m' Ins. Maeh. Co., United States
FiHplity ft Guaranty Co. t. (243 U. S.
632) 478
Tripii. Michigan Cent R. Go. t. (243 U. S.
648( 475
Tucker y. CrawfordavillA State Bank (244
V. S. 6B7) 744
Tnrriflh. tffncb ». (243 U. S. 639) 40*
TyrreU v. Diatrict of Columbia (243 U. S.
1) 861
Union Fish Go. v. Briekaon (242 U. 8. 84S) 289
Union Nat. Bank t. McBoyle (243 U. S.
2S) 370
Union Pac. R. Co. t. Cook (243 D. S. 654) 4S0
Union Pac. R. Co. T. Hendenon (243 U.
a 661) 4S0
Union Pat R. Co. t. PhiUipa (244 U. S.
WG) 742
Union K. Co., Moyem v. (243 D. S. 650) ... 482
Union Sand & Material Co, y. State of
Arkansaa (243 L'. S. 632) 478
Union Trust Co.. FellowB ei reL, First Nat.
Bunk of Bay Cltj y. (244 U. S. 41<i)... 734
United Copper Securities Co. y. Amalsa-
mateil Copper Co. (244 U. S. 2C1) 609
United Drug Co. v. Theodore Rectanus Co.
(242 U. S. 625) 16
United Mine Worken of America t. Dowd
(242 L". S. 653) 246
United States, Ex parte (242 U. S. 27) 72
Uniteil States y. Albert Lorsch & 1^. (243
U. S. fi7) 346
United States, Alex D. Shaw & Co. v. (242
D. S. 641) 113
United States v. American- Asiatic S. S.
Co. (242 U. 8. 637) 233
United Sutes v. Arriugton (243 U. S. 661) 47D
United States, Atcblson, T. ft 3. F. R Co.
V, (244 U. S. 330) 635
United States v. Beaver River Power Co>
(243 D. 8. S89) 387
United States, Bernstein v. (242 XJ. 8. 653) 246
Cnited StQtoi v. Billard (242 U. 8. 063). . 213
United Stateo. Blair v. (244 U. S. 65«.., 742
United Stotes r. Board of Com'ra of Osago
County, OkL (244 U. 3. 663) 649
United States v. Brooklyn Eastern Dist
Terminal (243 D. a. 647) 475
ITnUed Stata^ Cwaiiwtti t. (242 U. S. 470) 192
United States, Central Trust Oo. o* New
York v. (242 D. S. 660) 1
United States, Chicago, M. ft St. P. B. Co.
of Idaho V. (244 U. S. 351) 6
United States, Ohicazo ft A. B. Co. v. (242
U.S. 621) 2
United States, Chi<:agD 4c N. W. R. Co. r.
(242 tJ. 3. 633)
United States v. Cullman Bros. (243 U. S.
97) 3
United States, Creekmore v. &i2 U. S. 646) 2
United States v. Cress (243 U. S. 316) S
United Slates, Ctosb v. (242 U. S. 4)
United States v. Davis (243 U. S. 570) 4
United Stetcs. De Pass v. (243 U. S. 625). . 4
nnited States. Diegs v. (242 U. 8. 470) 1
United States v. Dowden (242 U. S. 661). , 1
United States, Eighteen Packages of Den-
tal Instruments v. (242 U. S, 617) 2
United States v. E. La. Montaene's Sons
(243 U. S. 97) 3
United States, PYankfurt t. (242 U. S. 633) 1
United Stntes, Freedman v. (244 U. S. 657) 7
United Stnlcs, Friodraan v. (244 U. S. 643) 6
United Stntes, F. Vltelll & Son v.. two caa-
es (242 U. S. 041) 1
United States, Gntraaltan v. (242 U. 8. 664) 2
roitni States V. Ginsberc (243 U. 8. 472). . 4
Unite<l States. Goode v. (243 U. S. 6611. , . 4
United States v. Gradwel) (243 U. S. 476). . 4
United States, Grand Bapids ft I. R. Co. v.
(244 U. S. 645) 6
United States Greer v. (244 U. S. 655). . . 7
United States, G. 8. Nicholas ft Co. v. (242
U. S. 641) 1
United StatM t. G. W. Faber, Inc. (243 U.
S. 97) ■■■•■■ 3
United States V. Ilnmbly (243 U. 3.476).,. 4
United States, Hays v. (242 U. S. 470) 1
United States, Hertzbcrg v. (243 U. 3. 654) 4
United Stntes, Hughes v. (242 U. 3. 640), , 1
United Stntes v. Ulinais Cent. B. Co. (243
V. S.659) 4
United Stntes v. Illinois Cent R. (3o. (244
U. S. 82) B
Unitert Stntes, Illinois Cent. R, Co. v. (244
U, 8. 6.18) 7
United States. International Lumber Oo. v.
(243 U. 8. 661) 4
United States v. James Elliott ft Oo. (243
U. S. 97* 8
United States v. 3. WUe Sons & Co. (243 U.
S. 97) 3
United Stntes v. Kelly (243 U. S. 310) 3
United States v. Kenofskev (243 D. S. 440) 4
United States, Kilnyco v. (243 U. S. 628). . 4
United States, Laser vintln Go. v. (244 U. 8.
617) 7
United States. T^edvinkn v. (242 U. 8. 6.32)
United States, Lehigh Valley R. Go. v. (243
U. S. 412) S
United States, Lehigh Valley B, Co. v. (243
U. S. 444) 4
United SWtea, Lcwb v. (244 U. S. 134) ... 5
Uniteil States v. Louis Kleycrs ft Son (243
U. S.97) 3
United SLntes, Louisville Bridge Co. v. (242
U. S. 400) II
United States. Louisville ft M. B. Co. t,
(242 U. 3. 60)
United States, Uanon v. (244 U. S. 362)... 6
United States v. Merchnnts' ft Manufac-
turers' Traffic Ass'n of Sacramento (242
U. 8. 178)
United Slates, Meyers v. (242 U. S. 6271 . . .
Unitfd States v. U, H, Pulaski Oot. (243 U.
B.97) 3
.A^iOOglC
xxu .
CASUS RBFOBTDD
Dnitod StatM t. Horehud (243 U. 8. 607) 4SS
United Statea t. Naahville, C. A St Ik H.
Co. (242 tJ. S. 850) 19
United States t. Nees (242 D. S. 634) 18
United Statd v. Northern Fae. B. Co. (242
D. S. 1901 22
United Stat«B v. Nunn (243 U. S. 38ft) 387
United States, Oaten v. (242 U. 8. 633) .... 16
United States, Oesting ». (242 U. S. 617). . 241
United States y. Oppenbeimer (242 U. S. 80) 68
United States, OreKon 4 O. B. Oo. v. (2«
U. S. 540) 443
United Fttates v. O'Toole, two eases (243 U.
8. 476) 407
United States, Pakaa v. '•!43 U. 8. 647). 475
United Statea t. Park & Tilford (243 U. S.
97) 346
United Stntea v. PenDaclvBnia B. Co., two
cases (242 U. S. 208) 95
United Statea, Philadelphia * R. R. Co. t.
(244 U. S7844> 6til
United States v. Poland (243 U. S. 653). . . . 47B
United States y. Prince I^ine (242 U. S. 537) 233
United States y. B, B. Henry Co. (243 U.
S. 97) 846
United States ». Kobert Muller ft Co. (243
U. 8. 97) 846
United Stat««. Bospn v. (243 U. S. 637) .... 402
United States y. Rowell (243 U. S. 464) . . . 425
United Statea y. Selgss ft Co. (243 U. S.
97) 846
United Statea, Sheridan y. (243 U. S. 63^ 402
United Statea v. Skinner (242 U. 8. 663). . 213
United StatM, Smith y. (242 U. S. 639) ... 19
United States, Song Chonsco t. (242 C. S.
664) 2*0
United States, Stephens y. (242 U. S. 633) 16
United SUtes, Sullens ». (242 U. S. 633). . 16
United States y. Utah Poy^er & light Co. __
(243 U. S. S8B) 387
United States^ Valdes y. (244 U. S. 432).. 725
. United States v. Waller (243 " s. 452). .. 430
United States, Watlington v. (242 U. S. 64!3 214
United States, Wetzel y. (242 U. S. 648). . 242
United States y. WUdcat 239
United States y. Wildcat (244 U. S. 111). . . 561
United States y. William Onenhym ft Sons
(243 U. S. 97) 346
United States v. Wood 4 Selick (243 U. S.
m^ 346
United States, Inzoo 4 M. V. E. Co. v. (242
U. S. 621) 241
United States Eip. Co. t. Stats of Okla-
homa (242 U. S. 862) 114
United States ei rel. Fowler Car Co., Swing
y. (242 U. S. 638) Ill
United States ei rel. Fowler Oar Co.,
Ewing y. (244 U. S. 1) 494
United Stateii ts rel. Ng. Sam *. Wallis
(243 U. S. 654) 480
United Statea ex rel. Reynolds y. Lane (244
U. S. 664) 743
United States ex rel. State of Louisiana ».
Boonnan (244 U. S. 397) 606
United States ei rel. State of Ijouisiana t.
Jack (244 U.S. 397) 605
United Stateti Fidelity 4 Guaranty Co. v.
Travelers' Ins. Mach. Co. (243 U. S. 632) 478
United States Horse Shoe Co., American
Exp. Co. y. (244U. S. 58) B96
United States Metallic Packing Co., Hewitt
Co. y. (242 U. S. R51) 243
United States Steel Products Co., Ocean S.
R. Co. y. (244 U. S. 652) 650
United States to Use of Fowden, Fidelity
ft Depodt Oo. ta Marrland T. (242 U. S.
«e&) 11
United Statea to Um of Fiandni American
Bonding Go. of Baltimers t. (242 U. 8.
661) lis
United IliackBr Coal Co., Bed Jacket, Jr„
Coal Co. y. (243 U. S. 644) 405
Universal Film Mfg. Co., Motion Rcture
Patents Co. y. (242 U. S. 637) 21
Uniyersal Film Mfg. (Jo., Motion Picture
Patents Co. y. (243 U. S. 502j 416
Utah Power ft light Co. y. United SUtes
(243 U. S. 889) 387
Valdes V. United States (244 U. 8. 432). . . 726
Valentine, Mexico-Wyoming Petroleum Ca
y. (248 U. S. 637) 400
Vallette, Ei parte (242 U. S. 609i 649
Valley 8. S. Co. v. Mrai (244 U. S. 202). . . K3
Valley 8. S. Co. y. Wattawa (244 U. S. 202) Ki3
Vandalia R. Co. t. Holland (242 U. S. 662) 212
Vandalia B. Co. t. Public Ssrvice C<Hmuia-
sion of Indiana (242 U. S. 2551 B3
Vandalia R. Co. y. Stringer (242 U. S. 614) 113
V "■ ~ --MU.S.39) 483
V SU. S. 641) tOi
V J. 8. 862) 481
V (^. y. Tomlisnoyicb
212
V Co_ Aeolian Co. y.
743
V Co.. Straus v. (243
.77: 413
V :e, Sebm Hall College
V rSan'Co."T.'(242'ul
V ikooB'y."(a42'U.*S.
V rf States,' two inaet
, , 118
Vm Baumbacti y. Eearsarge Land Co, (242
U. S. 503) 201
Von Baumbaeh y. Sargent I^nd Co. (242
U. S. 603) 201
Von Baumbaeh y. SuttiHi Land Co. (242
U. S. 503) 201
Voaper, Donobne v. (248 U. 8. 59) 350
W. A. Gage ft Co. y. Wilson (242 U. S. 632) 15
Wnener Bleetric Mtg. Co., WestinKhouBe
Electric & Mfg. Co. v. (242 U. S. 640). . . 112
Walker, Clyde S. S. Co. y. (244 U. S. 256) 545
Walker. H<*kinB y. (244 U. S. 4S0) 7U
Wall y. Parrot Silver ft Copper Co. (244 U.
S. 407) 609
Wallach y. Billines (244 U. S. 659) 745
Waller, United States t. (248 U. S. 452) ... 430
Wallis, United Stales ei rel. Ng. Sam v.
(243 U. S. 654) 480
Walter Bowen 4 Go. y. State of Washing-
ton (242 U. S. 655) 13
Ward, Inter-Island Steam Nay, Co. v. (242
U.S.!) I
Ward, MiBsouri, K. & T. R. Co. of Texas y.
(244 U. S. 383) 617
Washington, Mountain Timbw Co. v. (243
U, B. 219) 260
WashlnEton. Walter Bowen 4 Co. y. (242
u. s. a^r,) 18
Washington ez rel. Grays Harbor IjOR^me
Co. y. Coats-Fordney Logging Co. (243
U. S. 251) 205
WashinKton ei reL Grays Harbor louzins
Co. V. Superior Court of Washington for
Chehalia County (243 U. S. 251) 285
Waxhi^^n Ixmn 4 Trust Co. y. Handle
.A^iOOglC
ST BUPBmiB OODBT BBPOBXBB
WuluDStam Nottliun B. Oo~ Crawford v.
1212 U. U. 62»)
WaahinKton By. & Electric Co. t. Clark
(243 a. a. tt4») 4
WaahiiiKtoD Hj. & Ellectrie Co. t. Scala <244
U. S. KW) fl
Wattingtou 7. United SUtea (242 U. S. (M5) 2
WHUawu. VaUer S. S. Co. v. (2M □. S.
:iU2) C
"■ - [, Wise T, (244 U. S. 661). .
V. 1^42 U. B.B56)..
Wemin, Cameron t. (244 U. S. 663) 6
Weil V. Blade (243 U. S. 060) 4
Welch 7. CitT of Boston (244 U. S. 662). . 6
Welch T. ICUis (244 U. 8. 6S9) 7
Weld, Lowe v. (242 U. S. 654);
Welles, Portnguese-AnieTicaii Bank of San
Franciaoo t. (242 U. 8. 7)
Weill Fiigo ft Co. Exp. v. State of Okla-
boma (242 U. 8.662) 1
WeJlsrUle Oil Co. t. Miller (243 U. S. 6).. 8
Welsh, EMeR. Co. v. m2 U.S. 803) 1
Werk V. Parker (242 Tl 8. 645) 2
West *. Edward BnUedge Timber Co. (244
U. S. 00) 6
Weaterman Co. v. Dispatch Printing Co.
(242 U. 8. 638) 1
Weatem Maryland R. O)., Jamea Clark Dia-
tillin«Co. V. (242 U. 8. 311) 1
Wotern Oil Refining Co. v. Lipscomb (244
U. i
Western Tranat Co. t. A. C. Lealie ft Co.
ais)
Western Union I^L Co., Gardner t. (243
D. S. 644) 4
WMtmt Union Tel. Ca, Louisville ft N. R.
O*. V. (242 D. S. 666) 2
Weatem Union Tel. O. t. Louisville ft N.
B. Co. (244 U. 8. 649) 7
Weatinghonse Electric ft Mtg. Co. v. War-
ner EHectric Mfg. Co. (242 U. 8. 640) I
Wentphalen, Jaffe v. (242 U. S. 426) 1
WetMl T. United States (242 U. 8. 648)... 2
W. F. Jacobv ft Co, PenusylvaniA K. Co. t.
(242 n. S. 80)
WlkiUcre, Baltimore ft O. B. O. t. <242 D.
8.168)
WUte, St parte (242 n. 8.625) 2
WUte, Chin Hing t. (244 U. 8. eSS) . . 6
White, New York Cent. B. Co. v. (2i3 U. S.
18S1 2
. Co^ V. PackeU
Wildcat, United States t. 2
Wildcat, United BUtes v. r244 U. 8. 111). . S
WUder, Colbnm t. (242 U. 8. 667)
WUe SooM ft Co., United 8tatM r, (243 U.
8.97) 8
Wniiam Cramp ft Sons Ship ft Ehgine Bldg.
Co. T. Intemational Curtis Marine Tar-
Wne (3o. (243 D. 3. 637) 4
William Openfaym ft eons, United States v.
(248U. S. 97) 8
William P. E}llison, Inc., t. Hagar (244
U. S. ftW) 7
WHliam B. Bnsb Const Co., Wlthnell r.
(243 n. S.633) 4
Fan
William B. Staats Oo. T. Becurltj Tntat ft
Savings Bank (242 U. 8. 639) Ill
William B. Staats Co. v. Security Tmat ft
Savings Bank (243 U. S. 121) 836
WmiainB V. City of Chicago (24^ U. 8. 434) 142
Williaius V, Cobb (242 U. S. 307) 116
Wiiliams v. Home Ins. Co. <^ Mew York
(243 U.S. 638) 403
Williama, lUinois CenL K. Co. v. (212 U, 8.
462) 128
Williams, Seaboard Air IJne Ry. v. (243
U. S. 631) 477
WilUver, Delaware. L. & W. B. Co. t. (244
U. S. 663) 600
Wills v. Maddox (240 U. 8. 610) 113
Wilson, Baltimore & O. B. Co. v. (242 U. 8.
206) 12a
Wilson, Commercial Trust & Savings Bank
V. (242 U. S. 632) 16
Wilson, Interstate Banking ft Trust Co.
(242 U. V "■""
Wilson. W. A. Gsge & Co. v. (242 U. S.
632)
Wilson ft Co., L^sswell I«nd ft Lumber Co.
v. (242 U. 8.652) !
Winfield, Erie B. Co. v. (244 U. 8. 170) ... i
Winfield, New York Cent. R, Co. v. (244
Winters, Minneapolis & St. L B. Oo. y.
(242 U. S. 353) 170
Winln^, Ex parte (243 U. 8. 625) 3S9
WiscMi^ MWesota v. (242 U. 3. 664). . . 12
Wise T, Watts (244 U. 8. 661) 74B
Wister, Shinier v. (244 U. 3. 662) 660
WithDcU T. William E, Bush Conat^ Co.
_(243 D. S. 633) 481
Wltte T. fiheltoD ^ U. S. 660) 746
W. J. HcCahan Sugar Befiuing Co., ItuA-
enbacb v. (242 U. S. 638) Ill
Wolf, Van Thynv. (243 U. S. 641) 404
Wood, Spring Garden Ins. Co. of Phlladel-
_phia. Pa., v. (242 U. S. 631) 18
ood & Selick. United Statea v. (243 U. S.
S^.-
. 84e
Woods T. Atlantic Coast Line B. Co. (243
D. 8. 645) 406
Woodworth, Chesbroogb v. (244 U. S. 72). . 579
Woodworth T. Chesbrougb (244 D. S. 79).- 688
Wyoming v. Colorado (243 V. S. 622) 879
Tang-Tsxa Ini. Ca, Fnmeaa, Withy ft Co.
T. (242 n. 8. 430) 141
TankauB t. Feltenatein (244 U. 8. 127) 667
Taioo ft M. V. B. Co. T. United Statea (242
U. 8. 621) 241
Tee Suey T. Berkshire (242 U. 8. 630). .. Ill
ulla T. Notarbartolo (243 U. S. 628). . 408
Zicitler t. Carnegie Trust Co. (242 C. 8.
rtftfn _ 2
(242 n. 8.
Zimmerman, Chautauqua Inst
642)
Zuttermeister^Qileago Title ft Tmat Co.
2 U. 8. 6^) 14
>v Google
■jGoogle
OASES
AEQTTED AND DETEEMINED
nvTHB
UNITED STATES SUPEEME COUET.
OCTOBER TERM, 1916.
GEORGE K WABD.
CoUBTa *=»387(1) — Ebbob to Circuit
CoDRT or Appeals— Case Bbouqht raoit
HAWAiun SnPKKMK GouBT.
The cbange in the proviiions of tbe
Judicial Code, 1 240,' speciScall; govemiae
SpcalB from, and writs of error to, the
iw&iian aupreme oourt nhich is made by
the amendatory act of January 28, 1015
(38 Stat, at L. 803, chap. 22), taking from
th« Federal Supreme Court ite existing ju-
risdiction to review any judgment of the
fiawaiiaD supreme court If t^e amount in-
volved exceeds a certain aum, and conler-
ring such jurisdiction upon the circuit court
of appeals for the circuit to which Hawaii
belongs, compels the conclusion that the Fed-
eral Supreme Court may not, by virtue of
the general provisions of the Judicial Code,
I ^1,1 governing the appellate jurisdictioa
of that court over the circuit courts of ap-
peals, review a flnal decision of the circuit
court of appeals on writ of error to the
Hawaiian supreme court in » case in which
there was no Federal question and no diver-
rity of eitlEenship.
fBd. Not*.— FV>r othtr oaaea, tea Conns, Oint.
Dfg. H 1033-1016; Dte. DU. ^a3S7(l)J
[No. 638.1
IN ERROR to the United States Circuit
Court of Appeals for the Ninth Circuit
to review a judgment which affirmed a judg-
ment of the Supreme Court of the territory
of Hwaii, affirming on a second writ of ei^
ror a judf;nient of the Circuit Court of the
rint Judicial Circuit of that territory. In
' favor of plaintiff In a personal-injury •»
tion. Dismissed for want of jurisdiction.
See same caw below, 232 Fed. 800.
The facts are stated in the opinion. ^
•Ur. W. O. Smltli for plaintiff in error. *
Ur. Alexander Brttton, in behalf of Hr.
E. A. Dovtbitt, tor defendant In error.
Mr. Chief Justice White delivered the
opinion of the court:
On writ of error prosecuted from the
court below to a judgment of the supreme
eourt of Hawaii, rendered in a ease where
there was no Federal question and no di-
versity of citizenship, the judgment was at-
flrmed and the case was brought here. By
a motion to dismiss, our jurisdiction is dis-
puted, and to dispose of It requires a oon-
sideration of S 24S of the Judicial Code, ■■
amended by the act of January 28, IQIS
(38 Stat, at L. 803, chap. 22).
TI:at amendment provides, first, that
"writs of error and appeals from the final
judgments and decrees of the supreme court
of the territory of Hawsii and of the su-
preme eourt of Porto Rico may lie taken and
prosecuted to tbe Supreme Court of the
United States ... in the same classea
of cases, in which writs of error and appeaU
from the final judgments and decrees of the
Ughest court of a state in which a decision
in the suit DOuld be had, may be taken and
prosecuted to the Supreme Court of tbe
United States . . . ," And this is im-
mediately followed by a provision giving
power to this court to review by certiorari
"in all other cases, eivll or criminal, in the
supreme court of the territory of Hawaii or
the supreme court of Porto Rico." The next
and separate sentence which follows these
provisions and which concludes the amend-
87 8. C— 1.
A^iOOglC
S7 SUPREME COCBT BBPORTEB.
Oct. :
ment li tbUi '^rlU of error kud ftppeUs
from tlLS flnkt Judgments and deeraes of the
luprcme eonrta of the territory of Eftwaii
■nd of Porto Sico, vrhereln the unonnt in-
ToWed, exduaiTe of corti, . . . exceeds
the vftlue of (6,000, ru.7 he taken end pro*-
ecuted In the cirniit oonrte of eppeeU."
N The ergiiment lupporting jurUdiotion la
thet as, by the'generel provieioni ol the
jodialery act of 18S1 [20 Stat, 'at L. 828,
chap. S17], DOW embraced in | 241 of tbe
Judicial Code [30 Stat, at L. IIGT, ch«p.
211, Comp. Stat. 1913, I 121B], power exiata
in thfi court to review hj error or appeal
the final deelalona of the circuit oourta of
appeals In ell eaaea where the juriediction of
the trial eonrt did not depend upon diversity
of citizenship, or where the ceee wa« not
otherwise by provisions of lew expressly
made final in the drcuit oourta of appeals,
therefore power to review exists, since this
cmae Is not in one of the excepted clessee.
Bnt the eontmtion overloolcs tite fact that
from the beginning end oontlnuously up to
the ed(q)tlon of the amendment of 1916, ap-
peals and writs of error to the supreme
courts of Hawaii end of Porto Rioo were
not left to be controlled by the law general-
ly applicable to courts of the United States,
ea expressed In the judiciary ect of 18B1, or
as found In the proTisions of the Judicial
Code, re-adopting that act, Init were govern-
ed by special provisions controlling the sub-
Jeot, — ft porpoee which U exemplified by
the temu of tlte emendetoiy act of 1915.
This is plain whsu It is considered that the
two clBMea of cesee enumerated in the
amendment of 1915 were practically In
the same terms expressed in the prior acta,
which conferred reviewing jurisdiction In
both classea exclusively upon this court, and
that the only substentiii change made by
the amendatory act wee to talce from this
court the Jurisdiction to review in the sec-
ond enumerated olass and confer it upon
the circuit court of appeals to which Hawaii
belonged. And, indeed, there is nothing in
the context of the statute which counte-
nances the view that the statute intended to
merely take away the jurisdiction of thia
court in one clase of cases, and, at the same
time, to restore jurisdiction as to the lame
class by means of a power conferred or con-
templated to exist to review on error or ap-
peal the Judgmenta and decrees of the cir-
cuit court of appeals. Besides, as the
remedy intended to be afforded by the
amendment of 1916 was evidently tiie re-«
strlcting of the jnriadiction*of this courts*
to the end that the burden on Its docket
ml^t be lightened, we cannot conatrue that
amendment as frustrating the purpose
which it was adopted to aecompliih. Ameri-
can Secur. ft T. Co. v. District of Columbia,
224 U. 8. 491, 496, 60 L. ed. 860, 867, 22
Sup. Ct Rep. 553.
Dismissed for want of jurisdiction.
>v Google
POETUGUESE-AMERICAN BANK, ». WELLES.
Mie.
"l-ORTUGUESE-AMBRICAN BANK OF
SAK FEANCISCO, Appt,
PADL 1. WELLES, John D«nial, Trustee of
M«tropo1U CoDitruction Company, Bank-
rupt, and Thomaa F. Boyle.
UtntTCiPAi. CoRPOKATionH ArsSTSfl) —
LlENB — ABStOKllEKT— BT PUBLIC Coff-
TRACTOk — VaLIDITT AB AOAINBT SuB-
COIITB^CTOB~-rBOaBE3S PAIMEHT.
An aHignnieat ol a, progreBB payment
for vork done uader a contract tor a public
improTCTBent ie valid — the municipality not
objecting^ — ai against any rights of a lub-
eontractoT who tbeieaftcr aerved nottea on
the municipality to uithhold payment, aa
ptrmitted by Cal. Code, Civ. Proc. S H^,
although nich asaignment did not receive
the consent of the ooard of public norks,
and the contract expreiBly provided that
without such consent the contractor ihall
not "either legally or equitably aasign any
•I the moneys payable under the contract
•r hla claim thereto."
[Bd. Nat*.^POT oUier ctmum, sm HanldpaTcor-
pontlDDm, Cent. Dig. | tU; D«. DIs. 4=»JT3(1).]
[No. 4S.]
APPEAL from the United States Circuit
Court of Appeals for the Ninth Circuit
to review a decree which reversed a decree
of the District Court for the Northern Dis-
trict of California, approving the report of
a referee adverse to the claim of a aubcon-
tractor upon a public work of a lien upon
a progress payment dua to the principal con-
tractor. Reversed.
See «am« case below, 128 C. C. A. ICl,
Zll Fed. fidl; on rehearing, 131 CCA.
SSB, 21S Fed. 81.
The facta are stated In the opinion.
Meaara. William R. Hnrr, George A.
Knight, Charles J. Heggerty, James B.
Fechan, and Joseph W. Beretta for appel-
Unt
MeESri. Harold Remington, F. B. Dam,
R. T. Devlin, W. H. Devlin, A. F, Morrison,
P. F. Dunne, W. I. Brobeck, Milton J. Green,
and George J. HatBeld for appellees.
■ 'Hr. Juetiea Holmes delivered the opin-
ion of the court:
This is a anit brou^t by the appellee
• Welles to astabliah a Hen upon a debt of
■"(4,830.85, due under a constmction 'eon-
tract from the city of San Francisco, repre-
sented by the appellee Boyle, to the bank-
rupt. Metropolis Construction Company.
Tlie district court approved the report of
the referee against the claim and in favor
of the appellant, but this decree waa re-
reraed by the circuit court of appeals. 128
389, 216 Fed. 81. The subject-matter is the
fourth progress payment, which, on Decem-
ber 0, ISIO, had been authorized by the
bowd of publje works of the city. On that
day the Construetlon Company applied to
the appellant bank for a loan of (30,000,
secured by an order on the auditor of the
city, authorizing the bank to draw from
the city for the above and other amount!
not in controversy here. The bank d»-
dined until the order should be accepted
by the auditor, whereupon, on the next day,
the order waa presented to the auditor'!
office and stamped as received on December
6. The order was Intended and taken as
an assignment, apd, after it had be«i
it&mped, was accepted by the b*nk aa aa-
curity and the money was advaneed. The
next day $6,000 mora waa advanced on the
same security, notes being given for each
sum. The appellee Wellea was a subcon-
tractor, and on December 12 and 18 served
notice on the city to withhold payment, as
permitted by | 1184 of the Code of Civil
Procedure of the state of California. It Is
admitted by Wellea that if the assignment
WHS valid, his rights are subordinate to tt
(Newport Wharf A Lumber Co. v. Drew,
125 Cal. 686, SS Pan. 187); and the only
question argued on his behalf is whether
the terms ol the contract between the bank-
rupt and the city made the assignment void.
The contract provided that the contractor
should keep the work under hia personal
control, and ahould not assign or sublet the
whole or any part thereof without the con-
sent of the board of public worka It fur-
ther declared that no subcontract should^
relieve the eoutraetor of an7*of hla obliga>*
tions, and that he should not, "either l^al>
ly or equitably, aaaign any of the moneya
payable under the contract or his dabd
thereto unleaa with the like consent." The
city has made no objection to the assign-
ment to the bank, and the money now
awaits the decision of tbi* eoort aa between
the claimant ol the lien and the prior aa-
There is a Ic^eal difficulty In putting an-
other man into the relation of the cove-
nantee to the covenantor, because the facta
that give rlaa to the obligation are true only
of the covenantee, — a difficulty that has been
met by the fiction of identity of person and
in other ways not material here. Of conrse,
a covenantor is not to be held beyond his
undertaking, and he may make that as nar*
row ai he likea Arkansas Valley Smelting
Co. V. Belden Mln. Co. 127 U. S. 379, 32 L.
ed. 240, 8 Sup. CL Rep. 1308. But when
he has incurred a debt, which is property
in the hands of the creditor. It is a differ-
ent thing to say that, as between the credl-
C. a A. lei, 211 Fed. 501; 131 C. C. A. tor and a third person, the debtor
srorotbera
il Ker-N«fflb«red Olnats A L
*^OOglC
37 ST}PBEHE COURT RKPOBTES.
Oct. Tebi^
■trftfn hii allenatioD of tlwt, although he
eonld not forbid the mIb or pledge of other
ehattoU. When a man lella a hone, what
he does, from the point of view of the law,
la to transfer a right, and a right being re-
garded hj the law aa a thing, even though
a rea incorporalis, it la not Illogical to ap-
ply the aame rule to a deht that would be
applied to a horse. It is not illogical to
aay that the debt is aa liable to aale as it
la to the acquiaition of a lien. To be sure,
the lien ii allowed b; a atatuta subject to
which the contract waa made, but the con-
tract was made subject alao to the common
law, and it the common lew appliea the
principle recognized bj the statute of Cali-
fornia that a debt is to be regarded aa a
thing, and therefore gubjeets it to the ordi-
nary rules in determining the relatife rights
of aa assignee and the claimant ol a lien.
It does nothing of whieh the debtor can
complain. See further, Cal. CI v. Code,
n Hi 9G4, 711. The debtor does not complain,
■ but Stan da 'indifferent, willing that the com-
mon law ahould take its course.
The circuit court of appeals relied large-
ly upon Burck t. Taylor, 162 U. S. 634, 38
L. ed. 678, 14 Sup. Ct Rep. 606, some ez-
preasione in which, at least, aeem to war-
rant the conclusion reached. But that case,
•s understood by the majority of the court,
was quite dlETerent from this. A contract
for the building of the Capitol of Texai waa
made not assignable without the consent of
the governor and certain others. The
tractor sBaigned an undivided three-fourths
interest to Taylor, Babcocic, k Company,
with the required assent, and then three
sixteenths without assent to three others
severally, one of whom oonveyed one tliirty-
aeoond to the plaintiS'. The contractor
made another conveyance of all his righta
under the contract to Taylor, Babcock, &
Company, and Taylor, Babcock, k Company
made what purported to be a transfer of
the entire contract to Abner Taylor, the de-
fendant Both of these transfers were os-
■ented to. In the latter, Taylor purported
to bind himself to the state to perform the
original contract, and. In the assent to the
•ame, the governor and other authorities
stated that they recognized Taylor as
oontractor, bound aa the original contractor
waa bound. The court held that there was
a novation (p. 660), and that Taylor acted
without notice of the plaintiff's claim (p.
093). Upon those facts It would be hard
to make out any right of the plaintiff to
pAteeeds of the new contract that Taylor
had performed.
The assignability of a debt incurred un-
der a contract like the present sometimee Is
■ostained on the ground that tho provision
igainst assignment is Inserted only for th*
benefit of the citj. Whether that form of
ezpreasion ia accurate or merely is an in-
direct recognition of the principle that we
have stated hardly is material here. It
ia enough to say that we are of opinion that,
upon the facta stated, the assignment was
not abeolutely void, that therefore the bankS
gob a title prior to that of Welles, and'con-*
aequently that the decree must be reversed.
See Hobba v. McLean, 117 U. S. 507, 29 L.
ed. 940, 0 Sup. Ct. Bep. S70-, Burnett t,
Jeraey City, 31 N. J. Eq. 341; Fortunato
Patten, 147 N. Y. 277, 41 N. E. 672.
Decree reveraed.
Hr. Jnatlce McKenna dissents for th«
reasons stated by the circuit court of ap-
(M D. S. U)
LOUISVILT^ i, NASHVILLE RAILROAD
COMPANY, Plff. in Err.,
COUHBBCE «=27(7) -
iT¥ — When Servant la Enuaoeu in
"IhTKBSTATE COIIUBBCE."
1. A railway fireman on a switching
engine, who was killed by striking a ca-
boose on the main track while his engine
was transferring an empty car from one
switch track to another, was employed in
interstate commerce, although the car waa
not itself moving In such commerce, it thii
movement was simply tor the purpose of
reaching and moving an interstate car.
tM. Note,— For other cb«™, see Commerce.
Dec. Dig. (frsfltTJ.
For olher defliiltinn*. iee Wrrde sail Pbraiies.
Pint end Second Series. TQter«tal« Commerce.l
Appeal and Enaon «=213— Quebtioh Not
Raibed Bguiw.
2. A judgment against a railway oont-
pany, in favor oC the administrator ot a
deceased employee, will not be reversed be-
cause of the erroneous assumption below
that a railway fireman, who was killed by
striking a caboose on the main track whila
his engine wsa transferring from one switch
track to another, tor the ulterior purpoM
of interstate commerce, an empty car, not
itself moving in interstate commerce, waa
not engaged in such commerce, although It
is admitted that there could be no recor*
ery if the deceased was so engaged,
where the railway company did not ask to
go to the jury on the question whether th*
deceased waa engaged in interstate com-
merce, but simply asked the court to direct
n verdict on the ground, among othere, that
it appeared as matter of law that he waa
if that question had been
>r otiier case* see ai
It topic A KET-NUUBER lo all Ker-Nnmbared Dlgtata * iDdeUi
CBOSS T. UKITED SIAIEa
IN ERROR to the Court of Appeala of the
State of Eentackj to review a judgment
which sffirmed a. judgment ol the Circuit
Court of Knox Couiitj, in that state,
favor of plaintiff in an action against
railway eompauf to recover damage* for
the Diligent liilling of an employee. Af-
See same ease below, 165 E7. 658, 177 8.
W. 405.
The facte are stated In the opinion.
Ur. Bonjmmin D. WarSeld for plalntill
• 'Mr. Jastice Holmea delivered the opln-
loD of the court:
Tha plaintitf'i Inteatato waa a fireman
upon a iwit«bing engine which wae moving
npon a switch track. A nlnoso stood upon
the main track k> near to where the engine
moved that the deceased struck it and was
killed. His administrator brought this ac-
tion a^inst the railroad, the plaintiff in
raror, for causing the Intestate's death, and
got a verdict, which, it i* admitted, cannot
be sustained if the deceased was engaged in
interstate commerce. The dealings of the
state courts with that question are the
ground for the present writ of error.
The judgment for the plaintiO' we« affirmed
bj the court of appeals. 165 E7. 658, 177
8. W. 465.
The buaineaa upon which tlia deceased
was engaged at the moment was trans-
ferring an empty car from one awitch track
to another. This car was not moving in in-
terstate commerce, and that fact was treat-
ed as conclusive by the court of appeals.
,]n this the court was in error, for if, aa
there was strong evidence to show, and as
the court seemed to assume, this movement
was umpiy for the purpose of reaching and
moving an interstate ear, the purpose would
control and the business would be inter-
state. The difference Is marked tratween a
mere expectation that the act done would
be followed by other work of a different
character, as in Illinois C. R. Co. t.
Behrens, 233 U. B. 473, 47S, 6S L. ed. lOSl,
S4 Sup. CL Rep. S46, Ann. Caa. 1B14C,
»163, 10 N. C. a A. 1S3, and doing the act
■ for *the purpose of furthering th« later
work. Bee New Tork C. ft H. R, R, Co.
V. Carr, 238 U. B- ZflO, 2€3, 58 L. ed. 12B8,
1209, 35 Sup. Ct Rep. TSO, 9 N. C. C. A.
1; Pennsylvania Co. v. Donat, 230 U. B.
60, SO L. ed. 130, 36 Sup. a. Rep. 4;
Kalem Co. v. Harper Bros. E22 U. 8. 56,
62, 63, 66 L. ed. 02, 95, 06, 32 Sup. Ct.
Rep. 20, Ann. Cas. 1913A, 1235.
But it is necessary to see how the case
was dealt with in the trial court. The
railroad company did not ask to go to the
jury on the question whethtr *.he deceased
was engaged in interstate commerce. It
limply asked the court to direct a verdict,
on the ground, among others, that it ap>
peared as matter of law that he was so en-
gaged. Bat if the question had been left
to the jury, and they had disbelieved th«
testimony titat the empty car waa moved
for the ulterior purpose of interstate com-
merce, there would have been no error of
law in allowing a verdict tor the plaintiff
to stand. It is true that the judge seems
to have assumed that the business in hand
was intrastate, but the only objection in-
dicated wss to his not ruling the contrary;
and, as the railroad did not ask to go to
the jury, and the only ruling requested waa
properly dented, the judgment must stand.
Judgment afflrmed.
UNITED BTATEa
CuBss or OonsTO *»2S— rn»— NiTimAi.-
tUTioH PnoGCEDinas.
A charge by a clerk of a Federal dis-
trict court of fees (or making, on the di-
rection of the Bureau of Immigration and
Naturalization, triplicate copies of original
declarations of Intention for naturalization,
and attaching the seal of the court, is not
authorised by the general provisions of U.
S. Rev. Stat. $ 828, Comp. Stat. 1913,
% 1383, since If the duty to render such
services was expressly commanded by the
naturalization act of June 20, 1000 [34
Stat, at L. G06, chap. 3502, Comp. Stat.
1013, SS 4371, 4372, 4377). 8 12, the right
to charge therefor would be clearly forbid-
den by the probibitoiy provision of 3 21,
such services not having Iteen included in
the enumeration of fees m g 13, and if such
dutv only srose in consequence of the gen-
eral provisions of § 12, the prohibition of
g 21 would equally be applicable.
[Bd, Nate.— For otber eases, bm Clerics et
Oonrts. CanL DIa. H tJ, H. M; Dm. Die «=B 1
INo. 78.1
I* topic * KBT-NUUBSB In all K(T-Number*d DIgsaU t lat
'^eroogic
37 SUPREME COUET REPORIEK.
Oct. Taai,
APPEAL from tbe Court of Claimi to
review the rejection of the claim of the
clerk of the Dietrict Court of the UnitM
States lor the District of Rhode lelend, to
be paid feea for mmking triplicate copiea of
decEarationa of Intention for naturalization,
and attaching the eeaJ of the courL Af-
See same case below, 60 CL CI. 413.
The facta are stated in the opinion.
Messrs. Prank B. Crosthwalte and Ed-
vard F. Colladaj' for appellant.
Assiatant Attorney General Thompson
for appellee.
Mr. Chief Justice Wblto delivered the
opinion of the court;
The question for decision Is, did the
court below err in rejecting the claim of
• the plaintiff, who la the appellant,*to
eorer an amount based upon his aaaerted
right as cleric of the United SUtei dis-
trict and circuit courts for the district of
Rhode lalaod to be paid feea for mailing,
on tlie direction of the Bureau of Immigra-
tioQ and Naturalization, triplicate copies
of original declarations of Intention tor nat-
tmUizatioQ, and attaching the seal of the
court to the sameT
The solution of the Inquiry dqiends upon
a consideration of SS 12, 13, snd 21 of the
Naturalization Act of June 20, 1009 (34
StaL at L. 696, chap. 3G02, Comp. 8tat.
1»13, 9§ 43T1, 437S, 4377), and the relation
to those provisions of | 828, Revised Btat-
ntes, Comp. StaL 1818, g 1383.
By 3 12 It is provided that it shall be
the duty of tbe clerk ol every court exercis-
ing jurisdiction in naturalization matters
"to keep and file a duplicate of each decla-
ration of intention made before him and to
send to the Bureau of Inunlgration and
Naturalization at Washington, within thir-
ty days after the issuance of a certificate
of citizenship, a duplicate of such certifi-
eate, and to make and keep on file in his
oCBce a stub for each eertiScate so isaued
by bim. ... It shall also be the duty
of the clerk of each of said courts to re-
port to the aaid Bureau, within thirty days
after the final hearing and decision of the
court, the name of each and every alien
who shall be denied naturalisation, and to
furnish to said Bureau duplicates of all
petitions within thirty days after tbe Sl-
ing of the same, and certified copies of
such other proceedings and orders insti-
tuted in or issued out of said oourt affect-
ing or relating to the naturalization of
aliens as may be required from time to
time t^ the said Bureau."
By g 13 pravisioB U made for tbe fol-
lowing fees; "For receiving and filing a
dedaratioti of intention and issuing a dn*
plicate thereof, one dollar. For making,
filing, and docketing the petition ol an
alien for admission as a citizen of the Unit-
ed States and for tbe final hearing thereon,
two dollars; and for entering the final or-^
der and the issuance •of the certificate of*
citizenslilp thereunder, if granted, two dol-
In their ultimate analysis all tlie argu-
ments for reversal must come to one or the
other or both of the following propositions i
(a) That the declarations of intention were
not proceedings in naturalization covered
by 9 12> and therefore the services ren-
dered were outside of that section, and
governed, not by the enumeration of fees in
9 13, but by the general provisions of 9
828, Rev. Stat. Comp. Stat. 1613, | 1383,
authorizing a charge by clerks of 10 cents
per folio "for a copy of any entry or rec-
ord, or of any paper on file," and a tee of
20 cents "for afGxing the seal of the court
to any Instrument, when required." Or
(b) If the declarations of InUntion of which
triplicate copies were furnished were pro-
ceedings in naturalization and within tb*
requirements of 9 l^i payment for such
copies was not embraced by ths fees enu-
merated in § 13, and therefore the charge
for them must tw considered as being pro-
vided for in g 826, Rev. SUt Comp. Stat.
1013, 9 1383.
But we are of opinion that both of thesa
propositions are incompatible with g| 19
and 13, and, moreover, that to sanction them
would disregard the ^preas prohibition of
9 21, which is as follows:
. "That it shall be unlawful for any clerk
of any court or his authorized deputy or
assistant exercising jurisdiction in natural.
isation proceedings, or to demand, eharge,
collect, or receive any other or additional
fees or moneys in naturalisation proceed-
ings save the feea and moneys herein speci-
fied."
We are of opinion the conclusion stated
clearly follows from the the prohibition of
this section for the following reasons; First,
if, on the one hand. It be assumed that tbe
duty to furnish the copiea charged for was
expressly commanded by 9 12, the right to
charge for them would be clearly prohibited
l>y 9 S'l evCT if no provlaion for payment
was embraced In the feea enumerated in 9*.
13; •since it is apparent from the text that*
the purpose of the statute was to permit
fees to be charged for the services uxpressiy
provided for in | 12 only when such fees
were enumerated and authorized by 9 13, —
a conclusion which is additionally apparent
since g 12 unmistakably Imposes duties for
which no fees are provided in 9 13, hut
whioh are covered by the prohibition of
9 21. SwNnd, if, OB the other hand. It bs
A^iOOglC
1016.
OTJEIL T. NORTHERN COLORADO IRRIG. CO.
uiumcd tiiKt there la no ezpresB proTiBion
for furniahing the copiea in 3 12, but thnt
■Qcb dutj onlj arose in oouequence of tha
general proviaion of that tection requiring
clerks to fvimiah "certifled copiei of aucli
other proceedinga and order* instituted Id
or iaaued out of aaid court affecting or re-
lating to the naturalization of aliens a«
nay be required from time to time bf the
•aid Bureau," It is equally dear that the
prohibition of S 21 would be applicaJilB,
since it waa plainly intended to prevent ro-
aort to extraneous legislation tor the pur-
poac ol lupporting the right to charge a
fee for Mrvicea embraced u'lthin the general
terms of g 12 when no fee was provided for
•uch services by j 13.
Affirmed.
CoMBTrnmoNAi. T,»w «=>308— "Duk Pro
CK88 OT Law"— pBEscRiPTiofi — Oppob-
TUMITT roB HXABIMO.
1. The failure, if anj, to accord an ap.
propriator of water right* for irrigation
purposes an opportunity to be heard in a
auit in another water diatrict over priority
of appropriation does not make It a denial
of due process of law for the state to pro-
ride, as is done by Colo. Act of February 23,
18S1, I 85, that It he takes no steps to as-
•ert his rfghta within four years after the
judicial sssertion of an adverse title, the
decrae being a public fact, he shall lose
those rights.
[Ed. Note.— For otbor cseoa. ue Constitutloaa]
L«w, Cent. | gs : Dec, Dig. «=30».
For olher deflnltlona. les Worda and Pbram,
FInt and Second Sariss, Dua Proceii Or l-nw.]
CoWSnTUTlONAL LAW «=308— "DuB Pbo-
CESS or Law" — Construction or Prb-
KBIPnON STATOTB— StTBPBlBB.
2. Gonstrulnv as applying to parties In
different water districts the provisions of
Colo. Act of February 23, 1S81, g 35, that
after four yeara from the rendition of a
final decree In any water district in a suit
over priority of appropriation of water
rights for irrigation purposes all parties
whose interests are thereby affected uiall be
deemed and held to have acquiesced in the
same, and that thereafter all persons shall
be forever barred from setting up any claim
to priority of rights to water for irrigation
in such water district adverse or contrary
to the effect of such decree, does not take
without dua process of law, contrary to
V. B. Const. 14th Amend., the property of
an appropristor in another district than
the one in which a decree establtshlDg a
priority of appropriation in another appro-
priator was rendered, althongh such con-
struction was first announced after the pe-
riod of limitation had expired, where there
had been no different construction of the
statute before the limitation had rua that
might have lulled him to repose.
(Kd. Note.— For otber cam. ••• ConitltattsBal
Law, Cmt Dig, | >K; Dm. DI|. ^=>>0S.]
OowenrnTioNAi, Law *»278(1)— Dn« Pio-
CBS8 or Law— Okpabiubb mou Ruli or
Pbopkktt.
3. A mere departure by the courts of
the state from a rule of property eatublished
by prior decisions does not violate any
rights under the 14th Amendment to ths
Federal Constitution.
rSd, Nots.— For othar esMa, aaa OoaMltnUDnai
i«w, Dw. Dir 4=92na}.]
INo. 68.]
IN ERROR to tlie Supreme Court of the
Stats of Colorado to review a decree
which affirmed a decree of the Park Diatriet
Court, in that state, dismissing the com-
plaint In a suit to quiet title to alleged
wat«r rights, and to enjoin the ciosiug of
plaintiff's irrigation ditch. AJBrmed.
See same ease below, 66 Colo. 64S, 130
Pae. 636.
The facts are stated in the opinion.
Messrs. Fred K. Wrlghl, Charles D.
Hays, Clyde C. Dawson, and Q. K. Earten-
stein for plaintiff in error.
lleeers. Ii« Fayette Twltcbell. Luther
U. Ooddard, Paul M. Clark, and Fred Far-
rar. Attorney General for the state of Colo-
rado, for defendants In error.
Hr. Justice Holmes delivered the opin-
ion of the court:
This is a complaint brought by the plain-
tiff in error to quiet his title to allied
water ri^ts on Tarryall creek, a tributary
of the South Platte river, and to enjoin
the defendant Irrigation Company and the
state ofScials from closing the plaintiff's
ditch under an assertion of the Irrigation
Company's auperior right. The defendants
justified undoT a decree ettH,bIlBhing the
Irrigation Company's priority and a stat-
ute making the decree conclusive after four
years. Hie plaintiff replied and argued
that the statutes, if construed to have the
alleged effect, took hla property without
due process of law, contrary to the 14th
Amendment. The defendants demurred and
the state courts upheld the defense. 66
Colo. 645, 139 Pao. 636.
The case U this: In ISTS the sUU estab-
lished water districts, the plaintiff's water
Ighta being in district 23 and Uie defend-
nt's in district 8, directly below 23, upon
the South Flatte. Jurisdiction was con-
ferred upon ths district courts for the
proper county to adjudleate all questions
concerning priority of appropriation and
other questions of right between "owners of
ditches drawing water for irrigation pur-
poses from the same stream or Its triba- ~>olp
.... _. . .-'^i'-
tariea within the ■
water district."
le Uvlc ft KST-NUUBBR Id all Kar-Nuolnrvd DIsssU t Indsaes
37 SUPREME COURT REPORTER.
OoT. Tom,
Lawi of 1879, Feb. 19, | 18. p. 08. R«v.
Stat. 1808, § 3276. The provisiona were
enlarged hj an Act of February 23, 1S81, p.
142, but still aeeminglj cooSned to con-
trovergiea between parties in the same dis-
trict, until they came to the sections of
limitation. Bj g 34 the act was not to
prevent suits within four years, and by
§ 35 after "four years from the time of
Tendering a final decree, in any water dis-
trict, all parties whose interests are thereby
affected shall be deemed and held to hare
acquiesced in the SEune . . ■ and there-
after all persons shall be forever barred
from setting up any claim to priority of
rights to water for irrigation tn such water
district adverse or contrary to the elfect of
such decree." I^ws of 1681, pp. 169, 160.
Rev. Stat 1008, g§ 3313, 3314. Later stat-
utes were enacted In 1387 and 1903, creat-
ing divisions, and requiring the irrigation
division engineers to tabulate the priori-
ties and rights as established by decree in
the different districts of their divisions, and
to administer the use of water accordingly.
But these statutes are not material. The
parties' rights were held to be flsed under
the Act of 1881.
On December 10, 1S83, the proper court
for the defendant company's district made
• decree that the company waa entitled to
a priority of right to the use of water for
irrigation purpoaes of 11S4 cubic feet of
water per second from the South Platte and
its tribuUries, dated January 18, 1870,
which was prior to the date of the plaintiff's
rights. It will be observed that the Aet
of 1831 was in force when this decree waa
made. The plaiutifT contends that the con-
struction of 3 35 of the act, as applying to
parties in a different district, this ctmstruo-
tion having been first announced after the
period of limitation bad gone by, had the
dTect of a new statute declaring his rights
barred by time already elapsed, and attempt-
ed to make conclusive against him a pro-
ceeding to which he was not a party and
in which he would not have been heard.
So far as the last objection goes the
answer is that if it be true that the plain-
tiff was Dot entitled to be heard on the de-
fendant's decree, still there was nothing to
hinder the state from providing that. If he
took no step to assert his rights within a
reasonable time after the judicial aasertion
of an adverse title, the decree being a public
fact, he should lose those rights See Barker
V. Harvey. 181 U. 8. 481, 46 I* ed. 083, 21
Sup, Ct. Rep. 600; Soper v, Lawrence Bros.
Co. 201 U. S. 359, 387, 368, 50 L. ed. 738,
7B1, 26 Sup. Ct. Rep. 473; American Land
Co. V. Zeiss, 210 U. S. 47, 90, S6 L. ed. 82,
04, 31 Sup. Ct Rep. 200; Montoya t. Gon-
cales, 232 U. B. 376, 373, 68 L. ed. 646,
660, 34 Sup. Ct. Rep. 413. The answer to
the first half of the plaintiff's contention is
no less plain. It Is that the construction
of a statute does not take a party's prop-
erty without due process of law simply be-
cause it takes him by surprise, and when il
is too late for him to act on the coostruo-
tioD and lare his righta. That is all that
the plaintiff haa to complain of. There waa
no different constructiou of the statute by
the court before the limitation bad run,
that might have lulled him to repose. The
only decisions relied upon hy the plaintiff
as tending to favor him are Nichols *. M<^-
Intosh, 19 Colo. 22, 34 Pac. 278, and Ster-
ling Irrig. Co. v. Downer, 19 Colo. 505, 3S
Pac. 787, which were not rendered until
1803 and 1804, and both of which are con-
sistent with Ft. Lyon Canal Co. v. Arkansas
Valley Sugar Beet A. Irrig. Land Co. 30
Colo. 332, 00 Pac. 1023, esUblishlng tha
construction followed in this case. It
should be added that, however strong the
argument for a different interpretation, tha
one adopted alao was strongly supported,
so that there can be no pretense that a
perverse reading of the law was used as an
eicuse for giving a retrospective effect ta
the law of 1003. The decision was abso-
lutely entitled to respect.
It is suggested that the cases cited estab-
lished a rule of property, and that any de-
parture from it violated the plaintiff's
rights under the 14th Amendment Bui w«
already have said that tbe cases do not
establish the rule supposed, and if they did,
something more would be necessary befora
the plaintiff could come to this court,
Sauor V. New York, 206 U. S. 636, 647, 648,
61 L. ed. lire, 1183, 27 Sup. Ct. Rep. 886;
Chicago & A. R. Co. v. Tranbarger, 238 U.
S. 87, 76, 69 L. ed. 1204, 1210, 3G Sup. Ck
Rep. 678.
Judgment affirmed.
CITY OF RALEIGH and James I. Johnson,
O. Q. King, and R. B. Seawell, Commi*-
sioners of the City of Raleigh.
CoNBTiTUTioN AL Law 4=sl34^Ii[pamM<)
COKTRAOT OBLIOATIOKB— LiCBNBB— RUIr
WAT OOCCPATIOK OF CiTT 8IDBWAI.X.
No contract rights to occupy a city
sidewalk with a spur track which would un-
constitutionally be Impaired by a city ordi-
nance directing its ronoval can be implied
from a resolution of the board of aldermen,
adopted long after the creation of the rail-
way compEiny and the construction of ita
road, granting such railway company per-
mission— without any contract as to time —
to occupy the sidewalk for the purpose of
I* topic * KBT-NUUBER In all Ksr-Numbsrsd DlgMU
^V'WRgic
1919.
SEABOARD AIS LINE SY. t. RAT.RIOH.
Tunning k track, nor from the railway com-
pany's possession under such permlBBiou, no
matter how long continued.
[SO. Nota.— For otber cues, am Conitltutlonal
L««. CuL Dlf. I H4i Dm. Dls. «=3lM.1
[No. 69.]
Argued Norember 1, 1918. Decided Novem-
ber 20, 1916.
APPEAL from tbs District Court of the
United Stfttes for the Eastern Diatricl
of North Carolina to review a decree which
dismiseed the bill in a suit to restrain the
enforcement of a municipal ordinance di-
jActing the removal of a raitwaj spur track
from a citj Bidewslk. Affirmed.
See same case below, 219 Fed. 573.
The facts are stated in the opinion.
Mr. Unrraf Allen for appellant.
Mr. John W. Hinsdale, Jr., for appel-
* *Mr. Chief Justice Wbit« delivered tlie
opinion of the court:
Upon the assumption that contract ri^ts
protected by the Constitution of the United
States would be violated, the bill sought to
restrain the enforcement of an ordinance
which directed the removal of a spur track
on a sidewalk on a designated street and
block. On the bill, answer, and on agreed
Jacts the court refused an injunction on
the ground that there was no contract right
in existence, and, treating this conclusion
aa going to the vitals of the whole case,
diamiascd the bill, and a direct appeal was
taken.
Although there are fourteen assignments
of error, but one question arises: Was
there a contract! since, leaving out mere
(onus of statement, all the assignments eon-
i^cem this single question, and we come to
* its solution. In doing* so, to avoid that
which ia euperSuous, we concede, for the
sake ot the argument onlj, that the city
had the lawful authority to make a contract
concerning the track on the street and side-
walk in queation. With this argumentative
concesaion the question then is, not what
there was power to do, but what waa done;
and to solve it requires a brief statement.
In 183S the Raleigh k Gaston Railroad
Company, to whose rights it is conceded the
complainant and appellant succeeded, was
aathorized to and shortly afterwards built
a railroad from Gaston to Raleigh, North
Carolina. Entering the latter city through
Ita streets with its consent, and building
therein machine shops, a railroad yard, and
other facilities, the main tracks of the rail-
road curved into a block which the com-
pany had bought and upon which it estab-
lialied its terminals, bounded on the front
or west by Salisbury street, on Uie rear or
east hy Halifax street, and on the nortb
and south by North and Lsne streets. Many
jeara subsequently, in 1881, on the block
juet lielow and on the same aide of Salis-
bury street, a cotton compress had i>een
built, fronting on Salisbury street and abut-
ting on the sidewalk on that street. In
that year the railroad company asked per-
mission of the city authorities to extend a
track to and along the sidewalk on the
block in front of the compress, which was
granted, the oflicia) record of the consent
ot the city having been manifested by the
following entry in the minutes of the iioard
ot aldermen: "Upon application of John
C. Winder, General Superintendent, the
Raleigh & Gaston Railroad Company waa
granted permission to occupy the sidewalk
on the east side of Salisbury street, between
Jones and I<ane streets, for the purpose of
running a track." In virtue of this consent
a spur track projecting from the main
tracks as they curved into the terminal
block was built which ran down to and upon
the sidewalk in front of the compress. Force
^lany years this track waa used for businesaP
going in and out of the compress, as trell as
for the gmeral purposes of the railroad. Id
1906, however, the compress ceased to be
operated, and subsequently (about 1910
or 1911) the railroad company, owning the
block on which the compress was situated,
removed the same and built upon the block
a wardiouse. It waa not possible, however,
from the track on the sidewalk to directly
reach such warehouse, as, along the blodc
where it fronted en Salisbury street, trades
were laid between the warehouse and the
spur track, which, tor the purpoees of the
railroad, were depressed below the lerel of
the street and sidewalk, and thus the spur
track on the sidewalk was only available for
parking cars, or as a team track, end waa
alternately in uae for one or the other of
these purposes when the city adopted the
aaaailcd ordinance directing the removal of
the spur track.
Under this statement it becomes at onc»
apparent that the court below rightly de-
cided that the contract right asserted had
no existence, since, on the very face of tha
consent which waa given, a mere right to
occupy was conveyed, without any contract
as to time, and which therefore, taking the-
best view for the railroad, amounted to con-
ferring upon it a mere license to put and
use a track upon the sidewalk, and there-
fore subject to the power of the city to re-
voke whenever it deemed the municipal in-
terest required it to do so.
Rut the contention is that, although It b»
conceded that the well-settled rule is that
general implicationa may not be resorted t»
^sFor oUier case* m
la topic * KEY -NUMBER In i
JumlMred Disaata *
■^"^^^ogic
10
S7 SUPREMi: CODRT BEPOKTER.
Oct. Tebu,
for the purpoie of coitvertiug a grant of a
muuicipalitj which li, upon Ita face, b mere
license, into a contract for a atatcd period
or in perpetuity, nerertheleu that rule is
■object to a well-deAned hmitatioD or ex-
ception which, M presented in the argument
in various fomu, may be itated aa followi:
A That where general powers are conferred
• and duties are imposed •upon a corporation
which, from their nature and e«sential char-
acter, presuppose the right to exert tbem or
the duty to perfomt them during a speci-
fled time or In perpetuity, and a particular
power or right is conferred on the corpora-
tion which has a necessary relation there-
to or an essential connection therewith,
although such particular power or right
may not have expressly taken the form of
contract or grant for a stated time or in
perpetuity, Dcrertbeless such result may be
implied by considering the essential relation
which the particular power or right grant-
ed bears to the general powers and dutiee
ponesaed and the necessary connection be-
tween the two for the purpose of giving a
common duration to both. Louisville r.
Cmnberland Teleph. t Telcg. Co. iU U. S.
MB, 603, EC L. ed. S34, 940, 32 Sup. Ct.
Bep. &T2; Owenaboro v. Cumberland Teleph.
* Teleg. Co. 230 V. 8. OS, SO, 00, BT L. ed.
1X9, 1S93, 13H, 33 Sup. Ct Rep. DBS;
Boiai Artesian Eot A Cold Water Co. r.
Bois« Cl^, 230 U. S. M, •!, BT L. ed. 1400,
1400, S3 Sup. Ct Rep. 997; New York
Electric Line* Co. v. Empire (Mj Subway
Co. 23S U. S. 179, 191-1S4, 09 L. ed. 184,
191, 192, L.R.A. — , — , 86 Sup. Ct Rep.
72, Ann. Gas. 1916A, 900.
But while the general rule is well founded
and the exception or limitation by which it
is asserted to be qualified is well settled. It
has no relation to the case in hand, since
the partienlar action of the city In question
concerned a mere permiuion to exercise a
facility as a license, given long after the
creation of Uie railway corporation, and not
inherently or In any degree necessarily con-
trolling its power to discharge it* corpo-
rate attributes. Indeed, so much is this
the case on the face of the situation here
presented that it becomes apparent that to
apply the iimitation to a case like this
would destroy the general rule Itself.
The contention that even though this be
the case, in as much as the railroad had for
a long time operated the spur track on the
sidewalk and used it for its general railroad
purposes with the assumed Imowledge and
assent of the city, thereby the esistmee of
a contractual and permanent right most be '
inferred, is manifestly without 'merit In-
deed, it amounts to saying that possesskia
under a mere license was capable of erasing
that whidi was revocable and preearions t»
become eontractoal and peimanoit.
>v Google
FOLLOWING AEE MEMOEAHDA
CASES DISPOSED OF AT OCTOBEK TEEM, 1916,
MiBaoun, Kuisab, ft Texas Kailwat Cov-
FAirr, Flaintia in Error, v. 9rATK of
Kaksas kt bjel. S. M. Bacwsm, Attor-
ney Qcneral, rt al. [No. 191.]
In Error lo the Supreme Court of the
8tal« of Ksnus.
Ur. Joseph M. Bryion for plaintiff In
Mr. Junei P. Coleman lor defendant! in
June 20, 1916. Dtimiiaed pursuant to
the Twenty-eighth Rnle, per atipulation of
wnnaeL
DOLDTB Stuxt Kailwai Coufart, Flain-
tfff in Error, t. Railboad Couiiisbior or
WisoonsiN. {No. 2T4.]
In Error to the Supreme Court of the
State of WiKonain.
Mr. Edwin S. Maok (or plaintiff in error.
UeeBrs. Walter Drew and Walter C. Owen
for defendant in error.
June 29, 1916. DiBmissed purauant to
the Twenty-eighth Rule, per stipulation of
eonnael.
St. Louis ft Saii FBAttciaco Railkoas
CoHPAitT, Plaintiff in Error, v. Mabt C.
Smith, Admin Utratrix of WlUiani M.
Smith, Deceased. [No. 193.]
In Error to the Supreme Court of the
Stat* of Kansas.
Mr, R. B. Vennlllon for plaintiff in error.
Messrs. A. M. Keene and £. C. Branden-
burg for defendant In error.
July 6, 1916. Dismissed pursuant to the
Twenty-eighth Rule, per stipnlation of cmin-
11
FiDEUTT ft Ddobtt CovFAiri of Uaxt-
uixD, Plaintiff in Error, v. Umm
States of AnucA to the Use or Wn^
UAK T. FtowsEN, etc. [No. 424.]
In Error to the Circuit Court of Appaala
for the Ihlrd Circnit
Mr. Thomas A. Whdan for plaintilT in
Mr. George Harhangh Stein (or defendant
July 7, 1916. Dismissed pursuant to the
Twenty-eighth Rule, per stipulation of ooun-
CHBaAFBAKB ft Ohio Railwat CoKFAirr,
Plaintiff in Error, t. F. H. Coop». [No.
456.]
In Error to the Court of Appeala of the
State of Kentucky.
Messrs. E, L. Worthlngton, W. D. Coch-
ran, and LeWright Browning for plaintiff in
Mr. Allan 1). Cole for defendant in error.
July 10, 1016. Dismissed pursuant to
the Twenty-eighth Rule, per stipulation of
C. C. Cheskut. Plaintiff In Errw. ▼.
Mabgabet Capbt. [No. 134.]
In Error to the Supreme Court of the
State of Oklahoma.
Mr. 0. L. Bider for plaintiff in error.
Messrs. C. B. Stuart, A. C. Oraee, and U.
K. Cruee for defendant in error.
August 22, 1916. Dlamlsaed pursuant to
the Twenty-eighth Rule, per stipulation of
,A_iOOglC
12
3T SUPREME COUBT REPORTER.
Oor. Toot,
JoHH Z. Lows, Jk., Collector of latornal
Revenue, Plaintiff in Error, v. SAinm. T.
Hubbard et al. [No. 309.]
Tn Error to the Diitriot Court of Uie
United Statea for the Southern District of
New York.
The Attorney General for plaintiff in
error.
Measrs. David Hunter Uiller and Gord<ni
Aucbincloes for defendant in error.
October 9, 1916. Dismieeed nitii coata,
on motion of counael for Uie plaintiff In
John Z. Lowe, Jb., Collector of United
State! Internal Revenue, etc. Plaintiff
in Error, v. Stephen M. Wzu> et al.
[No. 388.]
In Error to the District Court of the
United States for the Southern District of
New York.
The Attorn^ Oaneral for plaintiff in
UessTs, David Hunter Miller and G<wdon
AnchincIoBS for defendants in error.
October B, 1016. Dismiased with costs,
on motion of counsel for the plaintiff in
State of MiNitEeoTA, Complainant, v.
State or WisooNSin. [No. 0, Original.]
Messrs. George T. Simpson and C. Louia
Weeks lor complainant.
No appearance for respondent.
Octobw 9, 1916. DiBmiaaed on moUon of
Munscl for the complainant.
Atohiboh, Toi>eka, ft Sahta Fe Hailwat
CoKFAKT, Plaintifl in Error, t. State or
Kanbas ex BEL. S. M. Bbewbteb, Attor-
ney General, etc, et al. [No. 137.]
In Error to the Supreme Court of the
State of Ebtibsb.
Mr. Robert Dunlap for plaintiff in error.
No appearance for defendants in error.
October 9, 1916. Dismissed with costa,
on authority of counsel for tlie plaintiff in
TiRRB Haqte, Iisdianai^lib, ft ElAST^n
TttAtmon CoUPANT, Plaintiff In Error, v,
Eluiba C. Wdk>le, Administratrix, etc.
[No. 199.]
In Error to the Supreme Court of the
State of Indiana.
Messrs. Ferdinand Winter and W. H.
Latta for plaintiff in error.
Mr. Richard M. Milbum for defendant in
October 9, 1916. Dismissed with costa,
on motion of counsel tor the plaintiff in
F1.0BIDA Eabt C0A8T Railway Compajit,
Plaintiff in Error, t. State or Flobida
EX BEL. R. HuDSoit Bcbb et al., eto.
[Nob. 224, 226.]
In Error to the Supreme Court of th«
State of Florida.
Messrs. Frederick C. Bryan and Alexan'
der St. Clair-Abrams for plaintiff ia error.
No appearance for defendanta in error.
October e, 1916. Dismissed with coata
<m motion of counsel for plaintiff in error.
WAI.TEB Bowxn & CoMFAET, Iito, Plaintiff
in Error, r. State or WABHiiiirroH. [No.
238.]
In Error to the Supreme Court of th«
State of Washington.
Messrs. W. H. Bogle and Carroll B.
Graves for plaintiff in error.
Mr. W. V. Tanner for defendant in error.
Octobtf 9, 1916. Diamisaed per stipula-
tion.
8. B. HoTET et al., ReceiTeri, etc. Plain.
tiffs in Error, v. Fatxtr TAnsiULEi.
[No. 261.]
In Error to the Court of Civil Appeals
of the Third Supreme Judicial District of
the State of Texas.
Mr. Herbert 8. Garrett for plaintiffs H
No appearance for defendant in error.
October 0, 1916. Dismissed with costs,
on motion of counsel for the plaintiffs in
. R.B.
Sekafion Cbibe et al.. Appellants, y
Manlt et al. [No. 352.J
Appeal from the Snpreme Court of the
Philippine Islanda.
Mr. A. D. Gibbs for appellants.
No appearance for appellees.
October 0, 1916. IKsmiBsed with costs,
on motion of counsel for the appellanta.
JoBX Qbamt Ltkan, Appellant, t. Thoius
D. MoCabtht, Marshal, etc [No. 448.]
Appeal from the District Court of the
United States for the Southern District of
New York.
Messrs. Hairy A. Wise and Frederick 8.
Tyler for appellant.
No appearance for appellee.
October 0, 1916. Dismissed with costs,
on motion of counsel for the appellant.
,A_.OOglC
1016.
HEUORAITDA CASEa
6k Loins South WCTTEKW Railwat Cou-
PAirr, Plaintiff in Error, v. W. C Euxn-
WOOD. [No. 617.]
In Error to the Supreme Court of the
Btate of Arkansu.
Messrs. A. L. Burford and Edward A.
Baid for plaintiff in error.
No appearance for defendant in error.
October 9, 1S16. Dismissed with coita,
pa motion of counsel for the plaintiff in
•rror.
I Railway Coupaht, Plaintiff in
Error, t. B. B. Sausdebb, Administrator,
etc [No. 117.]
In Error to the Supreme Court of the
State of North Carolina.
Mr. L. E. Jeffries for plaintiff hi error.
Meeiri. Jamee S. Manning and W. W.
Sltchin for defendant In error.
October 12, 1916. Dismissed with costs
on motion of counsel for the plaintiff in
Mekphib Eibeci Railway Coupant, Pe-
titioner, V. J. W. Bono, Administrator,
etc. [No. 822.]
Petition for a Writ of Certiorari to the
Dnited States Circuit Court of Appeals for
the Sixth CircuiL
Messrs. Lnke E. Wright and Boane War-
ing for petitioner.
Messrs. Caruthers Ewing and Ike W.
Cnbtrce for respondent.
October IS, 1916. Qranted.
UniPHia Stkbkt Railway Oovpant, Fs-
titloner, t. 8. C. Moou:, Administrator,
etc [No. 623.]
Petition for a Writ of Certiorari to the
TJni(«d States Circuit Court of Appeals for
the Sixth Circuit.
Messrs. Luke £. Wright and Roane War-
ing for petitioner.
Mesars. Caruthers Ewlng and Ike W.
Crabtree for respondent.
October 16, 1916. Granted.
Mbb. Ladka L. Bdhch, Petitioner, t. J. B.
Haloret, as Tmates, etc. [No. 439.]
Petition for a Writ of Certiorari to the
United SUtes Circuit Court of Appeals for
the Eighth Circuit.
Messrs. W. E. Hemlngwa;, O. B. Rose,
J. F. Loughborough, and V. H. Miles lor
petitioner.
Mr. J. M. Moore for reaponleat.
October 16, lUS. Granted.
SurasiiE GoDKoiL or tek Rotal Aboakdu,
Petitioner, r. Sue B. BEHBSMik [No.
665.}
Petition for a Writ of Certiorari to the
Court of Appeals of the District of Colum-
bia.
Messrs. Philip Walker and Howard 0.
Wiggins for petitioner.
Mr. W. Qwynne Gardiner for respondeat.
October 16, 1916. Granted.
JOHK H. Peddbiohber, Petitlontr, t. G. H.
RXNABD, etc., et al. {No. 66S.]
Petition tor a Writ of Certiorari to Uia
United States Circuit Court of Appeals for
the Eighth Circuit
Messrs. William V. AUen and W. C Bibb
for peUtioner.
Messrs. R. E. Brans and William D, Funk
for respondents-
October 16, 1016. Granted.
Qsixmu. Waskiho Haobute Cokfaht,
PeUtioner, v. B. E. Johkson CoKFAin.
[No. 676.]
Petition for a Writ of Certiorari to Uie
United Stat«s Circuit Court of Appeals for
the Sereutb Circuit.
Messrs. Charles C. LInthicmn and Melrllle
Church for petitioner.
Messrs. Tajlor E. Brown and Clarenas
E. Uehlhope for respondent-
October 16, 1016. Granted.
JoBiT J. VXnaa et al., Pettthmars, i.
United arAica. [No. S06.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Second Circuit.
Mr. Gilbert D. I«mb for peUtionerr
Mr. Solicitor General Davis for r
October 16, 1D16. Denied.
IxHiOB Vallxt Raileoad GoUTAinr, F»
tltioner, t. Gael Ktium [No. 613.]
Petition for a Writ of Certiorari to tha
United States Circuit Court of Appeals for
the Second Circuit.
Messrs. Daniel W. Baker, Frederic H.
Pelnnau, and David Wiener for petitioner,
Mr. Walter W. Mages for lespondtnt.
October 16, 1910. Denied.
A^^OOglC
1«
37 SDPItllUS COUKT ftBPORTEB.
Oct. '.
Lehigh Vallxt Railboao Oovtaitt, Pe-
titioner, V. EboAX A. Emeitb, m Executor,
etc [No. 514.]
Petition for a Writ of Certiorari to the
United States drenit Court of AppeaJa for
the Second Circuit.
Meim. Daniel W. B^ar, Prederidc M.
Pelzmkn, Knd David Wiener for petititmer.
Mr. Walter W. Magee for respondent.
October 10, lOlfl. Denied.
Orioaoo Titu ft Tnar Ooitnxr, Tnut«e,
etc, PeUtioner, v. Fm J. Zmnuaas-
i™. [No. 67B.]
Petition for a Writ of Certiorari to tli*
United SUtea Circuit Court of Appeala tor
the Seventh Circuit.
Meura. Charlee L. Bartlett and George
Gillette for petitiono-.
Mr. Harr; C. Kinne for reapondent.
Octobor IS, 1916. Denied.
Lkbihh Vallkt Bailboao Coifrun, Peti-
tioner, T. Edoax a. Euxkb, ai Executor,
etc [No. 615.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeala for
the Second Circuit
Mesan. Daniel W. Baker, Fredericlc M.
Pelzman, and David Wiener for petitioner.
Mr. Walter W. Magee for respondent.
October 10, IDIS. Denied.
UonroouBT TXAtmoH CoicPAirr, PetlUon-
er, V. Moirraaioar Iauht k WAiBi
Pawn CoKFAirr. [No. 618.)
Petition for a Writ of Certiorari to the
United Statea Circuit Court of Appeals tor
the imh Circuit.
Meaara. Gregory L. Smith and Raj Ruah-
ton for petitioner.
Messrs. Benjamin P. Crum, R. E. Stelner,
and John R. T^son for respondsnL
October 10, 1616. Denied.
MnxEB RODBEB CowPAitr et al.. Petition-
ers, V. CtTiZBna' TausT k Bavhiob Bank,
«a Trustee, etc [No. G60.]
Petition for a Writ of Certiorari to the
United Statea Circoit Court of Appeals for
the Ninth Circuit.
Meaara. Edwin A. KrauthofT and Winfleld
Scott Bicksler for petitioners.
Mr. Henry S. Van Djke for respondent.
October 10, 1916. Denied.
Sn.vBB Emo Goautioii Mines Coicpant,
Petitioner, v. Coksunq Mining Cou-
PANT. [No. 674.J
Petition for a Writ of Certiorari to the
Unit«d Statea Circuit Court of Appeals tor
the Eighth Circuit.
Mesars. William Howard Dickson, Curtis
H. Lindtey, Thomas Marioneaui, and A. C.
Ellia, Junior, for petitioner.
Meaara. Edward B, Critchlow, W. D. Mc-
nugh, and ^Villiam H, King for reapondent.
October 10, 1910. Denied.
WiUJAU W. Chawfoio, Tnutee, Petitioner,
r. WAsaiNtiroH NovrnnN RuLaoAS
CotiPANT et al. [No. 663.]
Petition for a Writ of Certiorari to the
United BUtes Circuit Court of Appeala for
the Ninth arcuit.
Heaara. James A. Kerr and E. S. McCord
for petitioner.
Meaara. Zera Snow and Wallaoa UeCa-
mant for respondenta.
October IB, 1910. Denied.
Anna L. Hanbon, Petitioner, t. WauiBi
L. HAK80S. [Na 688.]
Petition for a Writ of Certiorari to the
United SUtea Circuit Court of Appeals for
the Second Circuit
Meaara. Naah Roekwood and Prederie D.
McEenney for petitioner.
Mr. Ralph S. Rounds for reapoudoit.
Oatober 10, 1016. Denied.
William L. Tayiob et «I., Petitioner*, v.
CHABI.BB H. KiiuiKSLE, Truatee, eto.
[No. 692.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeala for
the Sixth Circuit
Mr. Harris F. Williams for petitioners.
Hr. Clyde W, Ketcham for respondent
October 10, 1916. Denied.
Stcku ft DnxAiD CoHPANT, Petitioner, v,
Mike Meseo. [No. 014.]
Petition for a Writ of Certiorari to the
Unitod States Circuit Court of Appeals for
the Sixth Circuit.
Mr. Edward S. Jonett for petitioner.
No counsel appeared for respondaib
October 10, 1916. Denied.
.A^iOOgle
191S.
MEUORANDA CASSa
Bktkklt K. Robikboit, u Tnittee, etc, Pe-
titioner, T. Cbaxlis F. Soe. [No. 040.]
Petition for * Writ of CertioTBri to the
United StAtei Circuit Court of Appe&Ii for
the Second Circuit.
Messrs, Walter C. ^lyja and B. W. B,
BtDWD for petitioner.
Hr. Henr; W. Taft for respondent.
October 16, ID16. Denied.
FtoeBNCK C. DiNwiDDiB et al., Fetltloneri,
T. tlATBAX TTtTTTi. Mrzo^ et aL [No.
673.]
Petition for a Writ of Certiorari to th«
Court of Appeals of the District of Colum-
bia.
Messn. A. A. Hoehlinic. Jr., Stanton 0.
Peelle, and C. F. R. Ogilbj for petitioner*.
Messrs. Victor E. Wallace and J. J. Dar-
lington tor reipondents.
October 16, 1916. Denied.
Daisy M. Limcooa, Administratrix, etc..
Petitioner, t. Vokiiiiuk Railway Coh-
PAitT. [Ko. 04S.]
Petition for a Writ of Certiorari to the
United SUtes Circuit Court of Appeals for
the Fourth Circuit.
Mesar*. W. J. Heneon and Walter L. Wel-
bom for petitioner.
Mr. Walter E. Taylor for reapondent.
October 16, IBI6. Denied.
ATLA8 FoaiILUn> CXHENT CoifPAITT, Pe^
tioner, t. Fub W. Haskn. [No. 674.1
Petition for a Writ of Certiorari to tha
United States Cirmiit Court of Appeals for
the Eighth Circuit.
Messrs. George A. Mahan and Dulanr
Mahan for petitioner,
Mr. Elliott W. Major for respondent.
October 16, 1616. Denied.
OncKKBT CoMPAm, Petitioner, t. Ikn
SnaAi-TT CoKFAnr. [No. 666.]
Petition for a Writ of Certiorari to tbe
United States Circuit Court ol Appeals for
the Third Circuit.
Mr. Charles B. Rlordon for petitioner.
Mr. J. C. Sturgeon for respondent.
October 16, 1916. Denied.
W. A. Gaox a CoHFAnr et si., Petltlonsn,
r. RoBEBT WiLSOit, etc, as TViute^ et«.
[No. 678.}
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Sixth arcult
Mr. Walter P. Armstrong for petltlonen.
Mr. Ike W. Crabtree for respondenL
October 16, 1D16. Denied.
Snnra Oausn InsunAifo Gompaft of
Pbiudelpuia, Pa., Petitioner, t. T. Qil-
bert Wood, etc., et al. [No. 670.]
Patition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Fourth Cirenit.
Meatra. George Brjrao and QnstaTus Re-
mah, Jr., for petitioner.
Mr. Fred Harper for respoudenta,
October 16, 1016. Denied.
CoiumoAL Tnm ft Bathtm Baitz et aL,
Petitionara, t. Boactr Witaoit, ato., aa
Trustee, etc [No. 708.]
Petition for a Writ of Certiorari to ths
United SUtes Circuit Court ol Appeals for
the Sixth Cirenit.
Messrs. H. J. LiTlngtton, WiUiam P. Met-
eall, and William H. Fitshugfa for petiUoB-
ers.
DATm Clxkkrt, as Administrator, «te.. Pe-
titioner, r. C^cAoo, MiLWADxn, ft 9t.
Fajjl Railway Coupaitt et al. [No.
671.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
tlie Ninth Circuit.
Messrs. Burton E. Wheeler and H.
Ixnmdn Maury for peUtioiicr.
No cotmsel appeared for r>3spondent*.
October 16, 1916. Denied.
InnaaTAn BAnsnia A Tii»t CMtPAirr,
Petitioner, t. Robbrt Wn^Boli, «t«., aa
Trustee, ete. [No. 703.]
PetiUon lor a Writ of Certiorari to the
United States Cirauit Court of Appeals for
the Sixth arenit
Messrs. Lake E. Wrlgbt, J. W. Cotiar,
and Roane Waring for petitioner.
Mr. Qce W. Crabtree for respondent.
Oetobar 16, 1916. Denied.
A^K~>ogle
IS
ST SUPBEME COUBT KEPORTER.
Oct. 5
Uinm)
FUHK IxtVUTKA, Fetitiiwer,
BTA.-m. [No. S8T.]
Petition for & Writ of Cartlorud to tha
United Statei Circuit Court of Appeali for
the Fourth Circuit.
Hessre. Alton B. Parker and John CL
Pftlmer, Junior, for petitioner.
The Attorney Generjtl for reapondent.
October 16, 1010. Denied.
Jaues O^Tva, Petitiouar, t. Uhtixd Statxs.
[No. 668.]
Petition for ft Writ of Certiorari to the
United States Circuit Court of Appeali for
the Fourth Circuit.
Meun. Alton B. Fuker uid John C. Ftl-
mei. Junior, for petitioner.
nie Attorn^ Qeneral for respondent.
October 16, 1B1«. Denied.
HnAM SizPHZNB, Petitioner, t. Umrnt
Statm. [No. 689.]
Petition for » Writ of CerUorui to the
United States Circuit Court of Appeftla for
the Fourth Circuit.
Meairs. Alton B. Porker and John C. Pal-
mer, Junior, for petitioner.
The Attorney General for respondeat.
October 16, 1016. Denied.
VAtitiT Snu^Kfl. Petitioner, t. U^nxED
Btaizs. [No. 600.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appenli for
the Fourth Circuit.
MesarH. Alton B. Parker and John C. Pal-
mer, Junior, for petitioner.
lie Attorney Oeneral for respondent.
October 16, 1016. Denied.
UnriEn Daxw Coufaitt, Petitioner, ▼.
TnKMwHE EuoTAiTtts Company. [No. 611.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Sixth Circuit.
Mr. Frederick L. Emery for petitioner.
No appearance for respondent.
October 16, 1016. Granted.
r. H. BnciKOTOir Coupaitt, Petitioner, t.
Nationai, Mauxablx CASTiKoa Com-
PAKT et al. [No. 670.]
Petition for n Writ of Certiorari to the
United States Oreuit Court of A^edls Jw
the First Circuit.
McMTs. MelTiUe Church and Gilbert T.
Eltter for petitioner.
October 16, 1016. Granted.
Bjlxi Stis. CouPAjrr et al.. Petitioners, t.
RAII.BOAD SuFPLT CoKFAirr [No. 67];
BjOiAOAD 8UFPI.T OoMFAirr, PedtioneF, v.
Eltbia Iboit a Stbh. Cokpaitt [No. 96].
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
tJie Seventh Circuit; and
Petition for a Writ of Certiorari to th*
United States Circuit Court of Appeals for
the Sixth Circuit.
Mr. Taylor E. Brown for respondent in
No. 67, and for petitioner in No. 05.
October 16, 1016. Per Curiam: N»
ground is stated to support the motion to
pass these cases other than the fact that
the eontinuance asked for is assented to
by the counsel for both parties. But, ■•
the cases were called last term, and this is
therefore the seccmd term at which they arc
subject to call, under rule 19 the mere cod-
sent of counsel without an otherwise ade-
quate showing is Insufficient to justify the
granting of tiie motion to pass, and it i*
therefore denied; without prejudice, how*
erer, to the right to renew the same upos
the making of a proper showing.
AninHtM YxnrBEBa, Plaintiff In Error, V.
Joan Qdibb, Jn. [No. 122.]
In Error to the Supreme Judicial Court
of the State of Massachusetts.
Mr. Lee M. Friedman for plaintiff 1»
Mr. Arthur D. Hill for defendant in error,
October 18, 1016. Dismissed without
costs to either party, per stipulation, and
mandate ordered to issue forthwith.
Cm or Monroe, Plaintiff In Error, r-
State or Louibiana ex bel. Pasisb
BoABD or School Dibbctobs or trb
Pabibh or OuAcaiTA, Louisiana, [No.
6.]
In Error to the Supreme Court of the-
State of Louisiana.
Messre. S. L. Herold and John C. Theus
for plaintiff in error.
No counsel appeared for defendant in
October IS, 1016. Dismissed with oost*»
pursuant to the Nineteenth Rula.
,A_^OOglC
i9ie.
ICEUORAI^A CASEa
IT
JoHiT F, CoLBcm, Plaintiff tn Error,
Chabub I. Wnum, Xuc AsB«asoT, «ta.
(No. 12.]
In EnoT to tli* Supreme Court of tlie
Territory of Hawaii.
Mr. Clarence W. Aahford for plaintiff in
Ut. C E. Hemenwa; for defendant in
October 18, 1910. DlsmisBed with eoata,
pirmant to the Nineteenth Bul«>
Omwun ItfBHLOa, Plaintiff in Error, t. Cm
or MlLWAOEEB et al. [No. 173.]
In Error to the Supreme Court of the
State of WUcoDsin.
Mr. William B. Biibin for plaintiff in
No I
I appeared for defendanta 1
October 19, 191B. DismiaBed with coita,
on motion of counsel for tha plaintiff in
error.
Cbbsapbaei k Ohio Railwat Covpaitt,
Plaintiff In Error, t. Obobok Robebt
KouiHOFT. [No. 397.]
In Error to the Court of Appeals of the
State of Eentnckf ,
Ur. John Oalvin for plaintiff in error.
No counsel appeared for defendant in
error.
October 19, 1910. Diemiiaed with coeta
on motion of counsel for the plaintiff in
10.]
Appeal from the District Court of the
United States for the Eastern District of
Louisiana.
Hr. Barnette E. Moses for appellant.
No counsel appeared for appellees.
October 10, 1910. Dismisaed with coats,
pursuant to the Tenth Rule.
17.]
Appeal from the District Court of the
United States for the Eastern District of
Arkansas.
Ur. Barnette E. Moses for appellant.
No counsel appeared lor appellees.
October IS, 1916. IMsmissed with costs,
pursuant to the Tenth Bula,
37 a. 0,—2.
TH0UA4 Patrick Ektes, Plaintiff in Error,
V. Peoplb or THB State or Ilukois.
[No. 316.]
In Error to the Supreme Court of the
Bute of Illinola.
Mr. Charles H. Baelice for plaintiff in
Uessra Patrick J. Lucey and Lester K.
Straws for defendant in error.
October 23, 1910. Per Curiam: Dismissed
for want of jurisdiction upon the authority
of; I. Bergmann t. Backer, 157 U. S. S55,
OSfl, 37 L. ed. 845, 848, IS Sup. Ct. Rep.
727; Caldwell t. Texas. 137 U. S. 692, 34
L. ed. 816, JI Sup. Ct. Rep. 224; Howard
V. Fleming, 191 U. B. lEB, 13S, 48 L. ed.
IZI, 124, 24 Sup. Ct. Rep. 49. 2. Demiug
T. Carlisle Packing Co. 226 U. S. 102, 105,
57 L. ed. 140, 142, 33 Sup. Ct. Rep. OOi
Consolidated Tump. Co. t. Norfolk &, 0. V.
R. Co. 228 U. S. 690, 600, £7 L. ed. 982,
983, 33 Sup. Ct. Rep. 609; Overton t. Okla-
homa, 236 U. S. 31, 69 L. ed. 112, 36 Sup.
Ct. Rep. 14.
JosKPH W. Bull, Appellant, t. Hugh Caup-
BKLL, JS. [No. 346.]
Appeal from the United States Circuit
Court of Appeals for the Eighth Circuit.
Mr. John R. Van Derlip for appellant.
Mr. S. E. Ellsworth for appellee.
October 23, 1616. Per Curiam: Dismissed
for want of jurisdiction upon the authority
of : ( 1 ) Bagley v. General Fire Extinguisher
Co. 212 U. S. 477, 63 L. ed. 805, 29 Sup.
Ct Rep. 341; Shulthis t. McDougal, 225 U,
S. 601, 60 L. ed. 1205, 32 Sup. Ct. Rep.
704; St. Anthony Church t. Pennsylvania
R. Co. 237 U. S. 575, 69 L. ed. 1119, 35
Sup. Ct. Rep. 729; (2) Farrell v. O'Brien
(O'Callaghan v. O'Brien) 199 U, S. 89, 100,
GO L. ed. 101, 107, 25 Sup. Ct. Rep. 727;
Hull T. Burr, 234 U. S. 712, 720, 58 L. ed,
1557, 1661, 34 Sup. Ct. Rep. 892; G. ft C.
Herriam Co. t. Syndicate Pub. Co. 237 U.
" "18, 621, 59 L. ed. 1148, 1140, 35 Sup.
Ct. Rep. 708.
Louisville ft Nabhyille Ratlboad Cou-
PANT, Plaintiff in Error, ». C. L Cboajt
et al. INo. 453.]
In Error to the Court of Appeals of the
State of Kentucky.
Messrs. Benjamin D. WarAeld and
Charles H. Moorman for plaintiff in error.
Mr. William W. Crawford for defendants
October 23, 1916. Per Curiam: Judg-
ment reyeraed with coats, upon the author-
ity of Northern P. R. Co. v. Wall, 241 U. S,
87, 00 L. ed. 906, 38 Sup. Ct. Rep. 463;
Cincinnati, N. 0. k T. P. R. Co. t. Rankin
241 D. S. 819, 60 L. ed. 1022, L.R.A.
1917A, 265. 30 Sup. Ct. Rep. 555.
.A^iOOglC
18
37 SOPEEMB COUBT REPORTER.
Oct. Tebx,
MlSSOITTII. KAKSA3, i. Tctip RaiI-WAT
CoupAicr or Texas et al., PlaintiffB in
Brror. t. KIbs. Emu A. Cabsadt, Ad-
mmiatratrU, etc. [No. 4B4,]
In Error to the Court of Civil Appeala
for the Second Supreme Judicial District
of the State of TexM.
Klessrs. Joseph M. Brfson, Alex. Britton,
and Evans Browne for plaiDtiffB in error.
Mr. H. L. Stuart for deteudaot In error.
October 23, 1B16. Per Curiam: Judg-
ment afSrmed with coate upon the authority
of Chicago Junction H. Co. t. King, 222
U. B. 222, 68 L. ed. 173, 32 Sup. Ct Rep.
70; Seaboard Air Line K. Co. v. Padgett,
23B U. S. 688, 673, 874, 60 L. ed. 777, 35
Sup. Ct. Rep. 481; Great Northern E. Co.
v. Knapp, 240 U. S. 464, 80 L. ed. 745, 38
Sup. Ct. Rep. 399.
John Q. Cbsistopheb et al., Platntiffa in
Error, v. Jarb MunoEn and Henbv Mun-
GEN, Her Husband. [No. 607.]
In Error t« the Supreme Court of the
Btate of Florida.
Messrs. George C. Bedell for plaintiffs in
Messrs. Kathan P. Br7an and J. T. 0.
Crawford for defendant* in error.
October 23, 1916. Per Curiam: Dis-
missed for want of jurisdiction upon the
authority of (1) EustU t. BoUea, ISO U.
S. 361, 37 L. ed. 1111, 14 Sup. Ct B«p.
131; Gaar, S. k Co. v. Shannon, 223 U. S.
468, 470, 56 L. ed. 610, 32 Sup. Ct B«p.
S36; Mellon Co. t. McCafTertj, 239 U. S.
134, 60 L. ed. 181, 30 Sup. Ct Rep. 94;
(2) Deming t. Carlisle Packing Co. 22S
U. S. 102, 105, 67 L. ed, 140, 142, 33 Sup.
Ct Rep. 80; Consolidated Turap. Co, v.
Norfolk i. 0, v. R. Oo. 228 U. S. G96, SOO,
67 L. ed. 082, 983, S3 Sup. Ct. Rep, 600;
Parker v. McLain, 237 U. S- 489, SO L. ed.
1061, 35 Sup. a. Bep. 632.
029,]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeala for
the Seventh Circuit
Mr. William Q. WhMler for petitioner.
The Attorney General for resposdoit
October 23, 1910. Granted.
Ukitep States, Petitioner, v. Itxb Eno^
BUCTSBH Ness. [No. 719.]
Petition for a Writ of Certiorari to the
United StatM Circuit Court of Appeala for
the Eighth Circuit.
Hr. Solicitor General Davia foi peti-
No appearance for reaponilent.
October 23, 1016. Granted.
Stat* or Ohio, Petitioner, t. AAno.-* A.
Ferbib, Receiver, ete. [No. 801,]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeala for
the Siith Circuit.
Messrs. Edward C. Turner and Clarcnc*
D. Ijijlin for petitioner.
Mr. Aaron A. Ferris for respondent
October 23, 1918. Denied.
Town or Newb^lm et al., Petitioner!, t.
National Bank or Babnestilxs, Ohio.
[No, 893.]
Petition for a Writ of Certiorari to the
United States Circuit Conrt ol Appeals for
the Sixth Circuit.
Messra. Marion G. Brans and Eliaa Gate*
for petitioners.
Mr. William R. Collins for respondent
October 23, 1016. Denied.
Chables W. Pakkex et aL, Petitioners, r.
Edoab W. Rosa, Guardian, etc [No.
894.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals (or
the Seventh Circuit
Messrs. John R. Montgomery and IionlB
£. Hart tor petitioner!.
MoBsrs. Earriaon Muagrave and W. S.
Oppenheim for reapondent
October 23, 1910. Denied.
EnrsTOHK Coal A Cosm Coupant, Peti-
tioner, T. UiOBAB. FiKXTB, etc [No.
704] ; ErrsTDKK Coai. ft Cokk Cqupant,
Petitioner, t. Funk Thbt, etc [No.
706] ; Ketbtohb Goal ft Coke Coupant,
Petitioner, v. AmiA Helkungeb, etc
[No. 708]; and Kezstone Coal ft CoKl
Coupant, Petitioner, t. Adak Mvumm
[No. 707].
Petition for WriU of Certiorari to the
United States Circuit Court of Appeala for
the Sixth Circuit
Messra, James S. Moorhead, Berkeley
Pearce, and William S. Rial for petitioner.
Mr. George H. EU^elberger for respond-
enta.
October 23. 1910. Denied.
F. F. Slocokb ft CoiiPABT, Inc., Petitioner,
T. A. C. Latiuh Uaobine CoicPAm.
[No. 708.]
Petition for a Writ of Certiorari to the
United SUtes Circuit Court of Appeala for
the Third Circuit.
Mr. E. Hayward Fairbanka for petitioner.
Messrs. Charlea Howaon and WiUiam
Steel Jacluon for respondent
October 23, 1916. Denied.
.A^iOOglC
lOlS.
MEMORANDA CASES.
IS
EujOTT VAsmsn CoupAirr, Petitioner, ▼.
Seus, Roebuck, ft Comfaitt. [No. 711.]
Fetitioit lor a Writ of Certiorari to the
United Statea Circuit Court of Appeals for
the Seventh Circuit
Messrs. C. C. Carlin, Walter H. Chomber-
lin, and D. 8. Wegg for petitioner.
Mr. Lineoln B, Smith for respondent.
October S3, 1916. Denied.
SuH CoxpAiTT, Petitioner, t. Vinton Pi-
rSOLEUM COMPAHT. [No. 601.}
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Fifth Circuit
Meaara. William A. Vinson - and £. E.
Townca for petitionei.
Mr. W. D. Gordon for respondent
October £3, 1010. Denied.
Jamks B. Suth et al., PeUtloners, t.
Uitmo Statks. [No. 637.]
PatitioD for a Writ of Certiorari to tha
United Btatea Circuit Court of Appeal* for
tha Ninth Circuit
Messrs. Peter F. Dnnua and A. A. Hoeh-
Ung, Jr., for petitionars.
Mr. Solicitor General Daria for reapond-
Oetober 83, 19U. Denied.
WiLUAii I^ffiB et aL, Executora, ate, PeAi-
tioners, v. Causoniah InstiRANCE CoH-
PAKT et al. (No. 816.]
Petition lor a Writ of Certiorari ta the
United SUtea Circuit Court of Appeals for
the Ninth Circuit
Mr. A. A. Moore for petitioners.
Mr. Carroll G. Walter for reapoodenta.
October 23, 1010. Doiied.
BrAKixr Xjoao, Master, etc.. Petitioner, t.
WnxiAv Lbjwitch et al. [No. 701,]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Fourth Circuit
Mr. Robert M. Hughea for petitioner.
Meisra. J. Winston Read and Allan D.
,Jonea for respondents.
October 23, 1016. Denied.
CiABKNOE Gbiimb et al., etc., Petitioners, t.
HoiT. Paqx Mobbis, United States Dis-
trict Judge, etc [No. 709.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Eighth Circuit.
Messrs. William H. BofI and Frederic D.
McKennejr for petitioners.
Mr. Thomas Kneeland for respondent
October 23, 1016. Denied.
E. Clehrnb Hobst CoupAny, Petitioner,
V. PAsar BxKvnm] Coupakt. [No. 716.]
Petition for a Writ of Certiorari to the
United States Circuit Conrt of Appeals for
the Ninth Circuit.
Mr. Leon P. Lewis for petitioner.
Messrs. Willett H. Spooner and Frederic
D. McKennej for respondent
October 23, 1916. Denied.
PnraBUBGB, Cincinnati, Cbicaoo, ft St.
Louis Railwat Cohpant, PlalntUT in
Error, <r. Fauoss Tbust ft Savimob
CouPAMT, Administrator, etc. [No. 228.]
In Error to the Supreme Court of the
State of Indianiu
Mr. Frederic D. MeKenney for plaintiff in
No counsel appeared for defetkdant In
error.
October 23, 1016. Dismisoed with ooata,
on motion of counsel for the plaintiff In
UifiTiD Btatbs, Appellant and Plaintiff in
Error, t. Nashttux, Ohaitanoooa, ft
St. Locia Railwat. [No. 67,]
Appeal from and in error ti> the District
Court of the United State* for the Middle
District of Tenne**ee-
The Attorney General for plaintiff in
Mr. Helm Brace for defendant In error,
October 27, 1010. Diamiaaed, pursuant to
the Nineteenth Rule.
Mabt Hrlkn Bsowif, Plaintiff in Error, r.
City of New Yobk. (No. S.]
In Error to the District Conrt of the
United States for the Southern District of
New York.
Messrs. Omri F. Hibbard and Nathan I.
Sachs for plaiuMfT In error.
Ur. Terenoe Farley for defendant la
error.
D,at,z.d-,.'^-.00'^IC
20
87 SUPREME COURT REPORTER.
Oct. Tesu,
October 30, 101(t. Per Curiam; DismlBBed
for want of juTiadiction upon the authority
of: (1) Deming v. Carlisle Packing Co. 228
V. S. 102, 105, 57 L. ed. 140, 142, 33 Sup.
Ot. Kep. 80; Consolidated Turnp, Co. t.
Norfolk & O. V, R. Co. 228 U. S. 698, 000,
57 L. ed. 082, 983, 33 Sup. Ct. Rep. 800;
Ennia Waterworka v. Ennis, 233 U. S. 852,
058, 68 L. ed. 1139, 34 Sup. Ct. Rep.
787 ; Parker v. McLain, 237 U. S. 489, 471.
472, 50 L. ed. 1051, 1053, 1054, 35 Sup. Ct.
Rep. 832; (2) Shoemaker v. United States,
147 U. S. 282, 321, 37 L. ed. 170, 188, 13
Sup, Ct. Rep. 381 ; ProBscr v. Northern P.
R. Co. 152 U. S. 50, 38 L. ed. 352, 14 Sup.
Ct Rep. 528; Baumtn v. Roas, 187 U. S.
648, 500, 42 L. ed. 270, 280, 17 Sup. Ct.
Rep. 060; Ramapo Water Co. t, New York,
238 U. S. 679, 50 L. ed. 731, 35 Sup. Ct
Rep. 442.
Rionr Reverend Lib^ct Hcbebt Boet-
NAEUS, Bishop of Zeugma, Vicar Apoi-
* tolic of Hairali, Truatee, Plaintiff in
Error, v. L. Ah lawrto. [No. 28.]
Id Error to the Supreme Court of- tli«
Territory of Hawaii.
Mr. l.,orrin Andrewa for plaintifT In e
Mr. David U Withington for defendant
October 30, 1916. Per Curiam: Judgment
affirmed with costs upon the authority of
Lewers t Cooke v. Atcherly, 222 U. S. 2S6,
294, 66 L. ed. 202, 206, 32 Sup. Ct. Rep.
04; John li Estate v. Brown, 236 U. S.
342, 340, 50 L. ed. 259, 265, 35 Sup. Ct.
Rep. 106; Kapiolani Estate v. Atcherley,
238 U. S. 119, 130, 59 L, ed. 1229, 1237, 35
Sup. Ct Rep. 832; Cardona v. Quitlones,
240 U. S. 83, 88, 60 L. ed. 538, 640, 36 Sup.
Ct. Rep. 346.
SoDTHERK Railway, Carolina Divibion,
Plaintiff in Error, v. Fannik O. Dbioob
and her Husband, H. D. Drigga [No. 31] ;
and SonTHERN Railwat, Cabouna Di-
viBiON, Plaintiff in Error, t. Hubebti
Dbioob, by His Guardian ad Litem, H. D.
Drigga [No. 32].
In Error to the Supreme Court of the
State of South Carolina.
Messrs. John K. Graves and Benjamin
Lindsey Abney for plaintiff in error.
Mr. Stanwix G. May&eld for defendants
In error.
October 30, 191S. Per Curiam: Judg.
ments reversed with coati upon the author-
ity of Kansas City Southern R. Co. v. Carl,
227 U. S. 639, 853, 57 L. ed. 683, 688, 33
Sup. Ct. Rep. 391; Boatou A M. R. Co. v.
Hooker, 233 U. S. 97, 110-113, 68 L. rf.
868, 875, 878, L.R.A.ttlBB, 450, 34 Sup.
Ct. Rep. 526, Ann. Cas. 1S16D, 603; Louis-
ville & N. R. Co. V. Maxwell, 237 U. S. 94,
97, 98, 59 L. ed. 853, 855, L.R-&.1015E, 666,
P.U.R.1016C, 300, 36 Sup. Ct Rep. 494.
Mabtiit H. Fbez, Plaintiff in Error, *.
WEBTEBn Union Tbldobafh CfncPAitr,
[No. 36.]
In Error to the Supreme Court of tha
State of Wisconsin.
Mr. Benjamin I. Salinger for plaintiff in
Mr. Ruah Taggart for defendant In
October 30, 1918. Per Curiam: Dismissed
for want of jurisdiction upon the author-
ity of: (1) Deming v. Carlisle Packing Co.
226 U. S. 102, 106, 57 L. ed. 140, 142, 33
Sup. Ct. Rep. 80; Conwilldated Tump. Co.
V. Norfolk A O. V. R. Co. 228 U. S. 506,
600, 57 L. ed. 982, 983, 33 Sup. Ct. Rep.
609; Ennis Waterworks t. Ennis, 233 U. B.
662, 668, 68 L. ed. 1139, 1141, 34 Sup. Ot
Rep. 767 ; Parker v. McLain, 237 U. S, 4B9,
471, 472, 69 L. ed. 1U61, 1053, 1054, 3S
Sup. Ct. Rep. 632; (2) John v. Paallin,
231 U. 8. 683, 686, 680, 68 L. ed. 381-383,
34 Sup. Ct. Rep. 178; McDonald v. Oregon
R. & Nav. Co. 233 U. S. 665, 669, 670, 68
L. ed. 1145, 1148, 84 Sup. Ct. Rep. 772;
(3) Simon V. Craft, 182 U. S. 427, 437,
45 L. ed. 1165, 1171, 21 Sup. Ct Rep. 836;
Louiaville k N. R. Co. v. Schmidt, 177 U.
S. 230, 44 L. ed. 747, 20 Sup. Ct. Rep. 620.
Cnr or Montooubt, Plaintiff in Error, ▼.
R. H. Gbxbkb et al. [No. 41]; and
Cmr Of MoNTOomBT, Plaintiff in Error,
T. W. R. MoDadb et al [No. 42].
In Error to the Supreme Court of tba
State of Alabama.
Mr. W. A. Gunter for plaintiff in errw.
No eounsel appeared for defendants in
October 30, 1916. Per Curiam: DiamlMsd
for want of juriadiction upon the authority
of: (1) Deming v. Carlisle Packing Co. 226
U. S. 102, 106, 67 L. ed. 140, 142, 33 Sup.
Ct. Rep. 80; Consolidated Tump. Co. v.
Norfolk A 0. V. R. Co. 228 U. S. 696, 800,
67 L. ed. 982, 983, 33 Sup. Ct Rep. 600;
Ennia Waterworks v. Ennis, 233 U. S. 662,
~ 68 L. ed. 1139, 1141, 34 Sup. Ct Hep.
767; Parker t. McLain, 237 U. 8. 469, 471,
472, 59 U ed. 1051, 1053, 1064, 36 Sup. Ct
Rep. 632; (S) Stewart v. Kansaa City, 239
U. S. 14, 16, aO L. ed. 120, 121, 36 Sup.
Ct. Rep. 15; Siom County t. Rule, 241 U.
~ 640, 60 L. ed. 1216, 36 Sup. Ct Kep.
.A^iOOglC
1»U.
UEMORAKSA CABEa
UonoM PicTuBE Patents Co up ant, PeU-
ti<Mier, V. UniVEBSAi. Fiui UAHtrrAOrna-
UTQ CoKpAitT et tl. tNo. 716.]
Petition for a. Writ of Certiorui to the
United States Circuit Court of Appeali for
the Second Circuit.
Mr. Uelviile Church for patitioner.
Messrs. Edmund Wetmore uid Otcar W.
Jeffery for reepondenta.
October 30, 1S16. Grutted.
JoHn W. Tnoxreoy, Petitioner, t. FBAmc-
Liif NATTonu Bakx. (No- 717-]
PetiUon for a Writ of Gertlorul to the
Court of AppeaU of the Dlitrict of Colum-
bia.
Heuri. William E. Davii and George H.
Xuuar for petitioner.
Hr. John Rldout for reepondanfc
Ostolter 30, M18. Dantod.
Enrna-BBowH Cohfakt, FeUtioner, t. Cznr-
TEAL pAcmo Railway OaiaAitt. [No.
728.]
PetiUoD for a Writ of CMtiorari to the
United States Circuit Court of Appeals for
tha Ninth Circuit.
Mr. Burrell O. White for petitioner.
Messrs. W. H. Devlin, Eobert T. Devlin,
William R. Eaxr, and Charles H. Bat«s for
retpondent.
Oetober M, MIS. Denied.
NOBTHXBN PACmO RAILWAT OooCFAITT,
Plaintiff Id Error, v. Whjud h. Gil>
roBO. [No. 307.]
In Error to tlie Supreme Court of the
State of Idaho.
Mesan. C. W. Bunn, James E. Babb, and
Alexander Britton for plaintiff in error.
No counsel appeared for defendant in er-
ror.
October 30, lOie. Dismissed with costs,
n motion of oaunMl for the plaintiff in
>v Google
87 SUPREME CfJUKT REPOBTBR.
Oct. TEUt,
Mastbb aitd Sebvant 4s9l3 — ^ Oovkbh*
WEKTAI. CONTBOL— RKFOBTS — HONEST
MlBTAKK— PEHALTUM.
Tfaa penalty of tlOO per day prs-
ed by ths Act of Juce 18, 1910 (36 Stat, at
L. 6S8, chap. 309, Comp. BtaL 1013, J 8598),
for ths failure of ■ carrier to file such fb-
porta aa may be required by the Interstate
Commerce CoinmiBSioit, wUl not be exacted
because tbe camu of several enployete were
omitted by tbe carrier from it* snom re-
port of violatioua of the Honrs-of-Serrioe
Act of March 4, 1907 (84 StaL at L. 141fi,
chap. 2939, Comp. StoL 1913, | 8077),
which wai required by an order of the In-
terstate Commerce Commieaion, nhere lueh
omission was caused by an honest mistake
Id a genuineiy doubifoJ case.
[Ed, rfoU.— For othsr retee. <« UtMm and
gtrrant. Cent. Dig. I H: Dec. Mr. «=3ll.l
01
[No. «.J
)\' WRIT of CerUorari to the United
States Circuit Court of Appeals for the
Eighth Circuit to review a judgment which
reversed a judgment of the District Court
tor the District of North Dakota In favor
of the United Statet in an action to recover
a penalty from a carrier for Ita failure to
file a report of vlolatlona of the Houra-of-
Service Act. Affirmed.
See same case btlon'. L.R.A. 1917A, 1198,
£ 126 C. C. A. 514. 213 Fed. 162.
< 'This is a civil proceeding bronght by the
United Btates in the United States district
court for the district of North Dakota, to
recover 9S00 from the Northern Pacific Rail-
way Company for the claimed failure to
file, for five successlTe daye, with the Inter-
state Commerce Commission, » report of
violations of the Houri-ot -Service Act, aa
required by an order of the Commission
issued June 28, 1911, Hie <H'der was made
^ under authority of | SO of the Act to
aB^rul«t« Commerce [£4 SUt. at L. ISS,
rchap. 104], as amended June 18th,*I910
(SB Stat, at L. 639, SS6, chap. S09, Comp.
SUt. 1913, I 8692), and has the force of
statute law. It requires the carrier to re-
port "under oath" within thirtr days after
the end of each monUi, all instance! where
employees haTO been (m duty for a longer
period than tJiat provided In said act, which
In this case was sixteen hours.
Hie district court rendered judgment for
the government, which was reversed by ths
circuit eourt of appeals for the ei^th cir-
cuit (L.H.A, 1917A, J198. 120 C. C. A. 514,
218 Fed. 102). The case is here f^ decision
on writ of certiorari.
Statement by ICr. Justice GIark«:
The judgment of the district court wm
rendered on the pleadings, the admitted
facta of the ease being as follows:
Five employee! of the defendant were
called to take charge of a wrecking train
at 8:10 o'clock P. ic., October £9, 1911, but,
before they reported at the place of duty,
it was ascertained that aueh train would
not be needed, and when they arrived tbey
were notified that their services would not
then be required, but that they should re-
port {or duly at 10:33 o'clock p. m. the same
evening. Prom 8:10 to 10:35 o'clock they
did not render any aervice "eave that they
kept alive the fire In the engine during said
period." At 10:Sfi o'clock the five men
entered upon a Irel^t train run, which, be-
cause of hot boxes, was delayed so that it
did not arrive at destination until 1:15
o'clock r. u. the next day.
If the service of the men were considered
aa beginning at 8:10 o'clock, tbe hour for
which the7 were called, they were on duty
for seventeen hours and five minutes; but
If the time were redioned from 10:35 P. ii.,
when the men actually took charge of the
freight train, they were on duty less than
sixteen hours. It Is admitted Uiat the of-
ficials of the railway company believed in
good faith that the time ol the men should
be reckoned from 10:3G P. u., and not from
8:10 P. M., and that, for that reason, when
next after October 30th, IBll, they filedg
their report of employees •subject to the*
act who had been kept on duty lor a longer
period than sixteen hours, the names of the
members of this erew were omitted, al-
though the names of many other employee!
who had been kept on duty longer than tbe
statutory limit were stated in that report.
It was conceded at the hearing In the
circuit court of appeals that the United
States had sued the company tor the "for-
feiturea" prescribed for these excessive serv-
ices under discussicm in this ease, and had
secured a judgment which had been paid,
and that thereby it was determined, for the
purposes of this suit, that these employeea
were on duty from 8:10 o'clock P. ic, and
therefore for more than sixteen hours.
The govemmenl^s claim in the case is for
the omission for five days to file the report,
and it prays judgment for "forfeitures" ag>
gregating (600, although when the eom-
plaint was filed the report claimed to be
defective had been on file from November
^=3Fer other cases m
le topic « KBT-NUUBDR
n all Kar-Numbered Dlsasts * IndaXM
IS16
UmTBD STATES t. NORTHEBN F. S. Ca
SOth, 1911, t-o September 14tli, U12, and
tf ttic "toritlturea" of 9100 per drnj pro-
■cribed hj th* Uw for ekch d»7 of failure to
S)« a proper report were ellowed, the
•inouDt of recxtrerj bj the govenuneat
would be 128,000, and it !• onl; by grace of
the public offidala that tlie claim in the
snit wu not tot thia amoaiit Instead of for
«500.
Asalgtant Attomaf G«aeral Underwood
lor petitioner.
MeBBT*. Emereon Hadley and CliarlM
W. Bonn for re^ondent.
Mr. Jiutlce Clarke, after making the
foregoing statement, deliTered tlie cyinion
•f the court :
It will he Ken from the foregoing atate-
ment of facte that the qneation preeented
hif the record in thii caaa For decision ia;
SAaaaming that the law required that. In the
•"report of the eompanj filed on November
Kih, IBll, the namee of theae fl*e employee!
of the defendant shoold have been Inclnded
aa having been on dutjr for more than aiz-
teen hours, and that their namea were omit-
ted from tiiat report beeauie It waa In good
faith beliered that thalr hours of aervlce
ahonid be computed from 10:30 o'clock F. H.,
and that, therefore, thef bad not lieen on
dntj in ezceea of alxtaen hours, la the com-
panj liable for the "forfeitures" prescribed
\ij the statute, judgment for whiA waa
prayed (or In Uie eompIaintT
Section 20 of Qi« Aet to Regulate Inter-
■tate Commeroa of February 4, 1887, aa
amended June 18, 1910 <3« SUL at L. SOS,
diap. 309, Comp. Stat 1913, | 8692), re-
qnlres the fllieg of elaborate annual rsporti
by carriers and also the filing of such
special reports as the Conunisslon may, by
general or special order, require. On the
S8th day of June, 1911, the Commission
ordered that all carriers subject ta the
prttviaione of the act should rq)ort "under
Mth" within thirty days after tha end of
e«ch month atl Instaneea of employees who
hkd been on duty for a longer time than
that required by the act It ia for vlola-
Uaa of this order, whleh has the effect of
statute law, that this suit waa instituted.
It being admitted by the goremment that
the failure to mention these five men in the
report by the defendant, filed at the proper
time, and which contained a rtfMrt of many
n«Q kept on du^ for a period longer than
the time allowed l^ law, waa due to the
faet that it in good faith believed that these
men eommmced their time of serrlea at
10:8B instead of at 8:10 lyetoek, and that
therefore they were not on dul? more than
the sixteen hours preeerfbed by the statute.
The defendant in error cont«nds that judg-
ment is asked for an omission caused by an
honest mistake with req)eet to a genuinely
doubtful case In a report which waa prop-
erly filed, and this, it ia claimed, is not a
violation of the law. The statute ia a penal
one and should be applied only to easea^
coming plainly within Its terms. Frovi-*
dmce Steaia!EDgijie Co. V. Hubbard, 101 U.*
S. 18S, 2S L. ed. TSS. While the reports
filed must be truthful reports [Yates v.
Jonee Nat Bank, 20fl U. 6. 158, 61 L. ed.
1002, 27 Sup. Ct Eep. 038], yet, since they
must I>e made under oath, the peualties for
perjury would seem to b« the direct and suf-
ficient sanction relied upon by the lawmak-
ing power to secure their correctness.
We are confirmed in thia conclusion by
the fact that the annual report required
of earriera by thia same | 20 of the act
calls for so great an amount of detailed
information tliat it would be difficult. If not
impossible, for anyom to prepare such a
report without making some unintentional
oraiBsitm or mistake, and we cannot bring
ourselves to think that Congress intended
to punish aneh an innocent mistake or omis-
sion with a penalty of $100 a day.
There are, to be aura, many statutes
which pnnish violations of their require-
ments r^fardlesa of the Intent of the per-
sons violating them; but innocent mistakes,
made In reporting facts, where the circum-
stances are such that candid-minded men
may well differ in their e(mcIuslona with
respect to them, should not be punished by
exacting paialties, except where the as-
press letter of the statute so requires; end
we eonclnde that the section under discus-
sion contains no such requirement In re-
ports In whleh a miataJie is much more
likely to prove harmful than In sueh a re-
port as we have here, the national banking
laws punish mistakes only where "knowing-
It is argued that If good faith will ex-
cuse an omission or a mistaken statement
in this report, It will be widely taken ad-
vantage of as a cover for making false and
fraudulent atatemmts in such reports in
the future^ Such a prospect seems quit*
groundless, since many. It not most, crim-
inal laws Imposing penalties are made ap-
plicable only in cases where corrupt intent
or purpose la established to the satisfaction
of a court or jury; yet such requirement
has not been found In practice to be an en-H
eouragement to wrongdoing. S
• The fact that the government anea for*
only one-fifty-seventh part of the forfeitures
which had accrued under tha eonstmetion
of the rule and statuto contemded for by It
should make us slow to attribute to Con-
,A_.OOglC
M
S7 SUFBEUB COURT REPORT&&.
0<7T. TcuCr
grcH a. pnrjioM to exact wltat !■ thus kd-
initted to bfl A punishment gre&tlj diipro-
portionate to tha offense. 8tatnt«8 should
be oonstrued, *j far as possible, so that
those subject to tbeir eontrol maj, by refer-
ence to their terms, ascertain the nieSiBiire
of their duty and obligation, rather than
that such measure should be dependent upon
Ute dlscietion of exeentlre offlceis, to the
end that ours may continue to be a goTera-
ment of written laws rather than one of
official grace.
It being very dear that it Is not the pur-
pose of the law under discussion to punish
honest mistBikes, made In a genuinely doubt-
ful case, the decision of ths Circuit Court
of Appeals is affirmed.
tt4t tr. g. mi
VmrED STATES OF AMERICA, Inter-
state Commerce CommisBion, Atchison,
Topeka, i Santa Fe Railway Company,
et alq Appta..
UERCHAHT8' * MANUFACnmERS'
TRAFFIC ASSOCIAIIOH OF SACRA-
UENTOetal.
Commerce 4=388 — Intebstate Coumeroi
CouMiesioN — Powers — Rate HEanLA.-
non— LoNo AMD SnoBT Hatilb.
1. An order of the Interstate Com-
merce Commission relieving carriers in cer-
tain respects from the operation of the
long-and-shart-bsul clause of the Act of
Fsbruarr 4, 1887 (24 Stat, at L. 360, chap.
104), g 4, as amended bj the Act of June
la, 1910 (36 Stat at L. 647, chap. SOS.
Comp. Stat. 1013, % 8668], need not be
based upon an application asking only the
precise relief granted; and such an order
is, therefore, not isTalid because the car-
riers asked leave to charge on west-bound
transcontinental freight to a number of
coast and interior points much less than
to Intermountain territory, and the Com-
mbsion, while permitting them to charge
to porta of call as much lees as the applica-
tion requested, as to the other points, which
were interior cities, permitted the carriers
to charge only somewhat less, since such
amended section not only empowers the
Commission "upon application" to author-
ize a carrier "to charge" leas for longer
than for shorter distances, but empowers
the Commission to prescribe from time to
time the extent to which the designated car-
riers may be relieved from the operation of
such section.
[Bd. Note.— I^ir othar cases, See CMnmercs,
Cent. DIs. II laS. in ; Oto. Oil. «=iS3.]
Commerce e=96 — Tntebbtatk Cohhesce
Commission — Sobpendinq Lonq-And-
Short-Hahl Claube— Remedy of Ao-
ORIEVED GOMMfHITT OR SHIPPER.
2. Communities or sbippars aggrieved
by tariff schedules Sled eonformublv to an
order of the Interstate Commerce Commis-
slon rdieving the earrier in oertaln re-
spects from the operation of the long-and-
^ort-haul clause of the act of February
4, 18BT (24 Stat, at L. 380, chap. I04)»
§ 4, as amended by the act of June 18, 1910
(36 Stat, at L. S47, chap. 309, Comp. Stat.
1913, J 8S66}, are afforded ample remedy
bv the provisions of gg 13, IS, for eom-
pluints to the Commiesion and action by
such Commission on complaints or on i^
own initiative, and they may not seek re-
dress in the courts by way of injunction
after having l»een refused a rehearing by
the Commission in the proceedings upon the
carriers' applications, to which the eont-
munitiea aod shippers were not parties.
[Bd. IfotB.— Tor other easei. ses ConuneKa,
Cent. DIf. I IM; Dec. Dig. ^=i9S.]
Commerce ^=iS5 — Interstate Coumebcb
Commission— Rate HcotrLATioN — Losa
aud Short Hauls.
3. The Interstate Conuneree Commis-
sion, in permitting carriers to charge oa
west-bound transcontinental freight to cer-
tain ports of call a lesser rate tlian to cer-
tain interior coaet cities, did not violate
the clause added to the act of February 4,
1887 (24 Stat, at L. 380, chap. 101), g 4,
by the act of June 18, 1910 (30 Stat, at L.
647, chap. SOB, Comp. Stat. 1913, | 8660),
which provides that "whenever a carrier
by railroad shall, in competition with a
water routs or routes, reduce the rates on
the carriage of any species of frei^t to or
from competitive points, it shall not be
permitted to Increase such rates unless
after hearing by the Interstate Commerce
Commiesion it shall bs found that sucli pro-
posed Increase rests upon changed condi-
tions other than the elimination of water
oompetltlon," where It was the increased
efTectivenesB of water eompetition, due to
the opening of the Panama canal, which
compelled the rate readjustment ot which
the interior coaet cities complain, and ~the
higher rates to such cities, made under au-
thority of the Commission, were granted
after prolonged hearings, as part of the
general readjustment of transcontinental
[Bd. I4Dts.— For atber cages, sse <
Cent. DIs. 1 US; Dbc. Dig. iS=>S5.]
INo. 452.]
APPEAL from the District Court of the
United States for the Northern Dis-
trict of California to review a decree en-
joining the enforcement of an order of the
Interstato Commerce Commission, relieving
certain carriers in certain respects from the
operation of the long-and'Sbort-boul clause
of ths Interstate Commerce Act. Reversed
and remanded, with- directions to '<'»T"i'is
ths bill.
See same case below, 231 Fed. 202.
The facts are stated in the opinion.
sFor other ei
n lee ume topic ft KBT-NUMBER In sll Ker-Nnmbsred Dlsests A Indsies
L',aii..,-)-,.*^-.OOglC
1910.
UNITED STATES t. MERCHANTS' * U. TRAFFIC ASSa
AiaiatMit Attomer QencraJ Underwood
for the United SUteo.
Ur. Joseph W. Folk for Um IntaritaU
Commerce Commiiaion.
— ilt. John E. Alfiumder tor Appelleem.
3
* *Ht, Jnatice Br&ndeia dalivered the opin-
ion of the court:
B7 tha Act of June 18, 1910, cb«p. 309,
36 Stat. *t L. 539, G4T, Comp. SUt 1913,
I 65S6, unending i i ot th« Act to Hegulatc
Commerce [24 SUt. at L. 380, chap. 104],
earriera were prohibited from charging
nore "for a shorter than for a longer die-
tance orer the same line 01 route in the
same direction" without obtaining author-
ity from the Interstate Commerce Commia-
•ion to to do. A period of six mouths from
tha paiaage of the amendment naa provided
within which carriers might file applioatlan
for authority to continue ehargea of that
satore then lawfully existing.
For many years prior to 1910 it had been
• common practice to make freight Tat«s
from the Eairt to Pacific coast points lower
ihaa to Intermountain territory, because ol
competition hy the Atlantio-Paciflo ocean
carricTB. About ISS interior cities near the
ooaat had been grtiuted the same transcon-
tinental rates aa the porta of San Francisco
and Oakland, because the competing water
earrios cnBt(»narily "abaorbed" the local
rates or charges from the porta to those
cities. Among the interior cities thus
treated as "Pacific Coast Termmais" were
Sacramento, Stockton, San Jood, and Santa
Clara. The extent to which the higher ratea
to Intennountain territory were justified
and the proper baais for '^ack haul" rates
bad t>een the aubject of many bearlnga be-
fore the Interstate Commerce Commisaion.
Proceeding under g 4, as amended, six
railroads applied to the Commission under
date of December T, 1910, for relief in re-
spect to waat-bound transcontinental eom-
■nodlty rates. The applications, after enum-
erating the then-eiiating tariffs, sought
Authority ipeciflcally "to eontinus all ratea
sliown in the above-named tariffs from e«at-
em shipping points designated to Faclllc
m coast terminal points," and generally "to
• continue the present method ofnnalcing rates
lower at the more diatant pointa tiian at
the intermediate points, such lower ratea
being necessary by reason of competition
of various water earriera" from Atlantic to
Pacific ports. After prolonged hearings tha
Commission entered ita ao-called 4th sec-
tion order No, 124, by which, while declin-
ing to grant the applications as made, it
authorized charging, in some respects, lower
rates for the longer hauls. Tbe limitation
«f such charges was set by a lone syatem
and rate percentage basis prescribed by the
Commission, which inTolved an extensive
readjustment of rates; but the eiiating
practice of treating these interior citiea aa
terminals was not disturbed. The validity
of the order was attacked by the carriers
in the courts, and, after three years of liti-
gation, finally auatained in Intermountain
GaU Caaes (United States v. Atchison, T.
&. B. T. R. Co.) 234 U. S. 476, 68 L. ed.
1408, 34 Sup. Ct. Rep. 986.
Meanwhile the "effective date" of the or-
der had been extended by the Commiaaion,
After the decision of this court, furtliei
extensions of the "effective date" were
sought by the carriers and granted. Some
modifications of the order were proposed by
tha carriers. Additional hearings were had
in which many shippers participated.
Changes in eonditiona occurring since the
entry of the original order on July 31,
1011, were eonaidered, — among others, that
Congreaa bad passed the Act of August 24,
1912 [37 StsL at L. S6S, cbap. 390, Comp.
Stat. 1013, § 8509], giving the CommisaioD
juriadiction over transportation "by rail
and water through the Panama canali"
that the canal itself had been opened on
August IS, 1914; that competing ocean
ratea had been lowered and service im-
proved; and that the ocean earriera had
discontinued the practice of "absorbing"
ratea from the ports to interior cities. An
elaborate supplemental report was made by
the Commission on January 29, 1915, and
another on April 30, 1915. The propriety
of modifications in addition to those pro-
posed by the earriera waa aliown and a new«
plan for constructing "back haul" rateB,3
developed by the Commission, waa eventu-*
ally embodied in the amended 4th aectioa
order No. 124 of April 30th, 1916. and
adopted by the carriers In the tariffs filed
thereunder. Following the limitation im-
posed by the amended order, the tariffs filed
confined the low "terminal" rates to porta
of esJl like San Francisco and Oakland;
and the interior coast cities, including Sao-
ramento, Stockton, Ban Jos^ and Santa
Clara, were subjected to rates materially
higher than San Francisco and Oakland,
tbou^ much lower than those to inter-
mountain territory.
Repreaentatives of these four cities, eon-
oelving them aggrieved by the refusal to
grant them the same rates as the porta,
and alleging that they had participated in
whole or in part at hearings which pro-
ceded the entry of the laat amendment or-
der, applied to the Commiaaion for a re-
hearing, and when their application waa
denied, brought this suit in the district
court to restrain the enforcement as to them
,A_.OOglC
26
37 SUFKBME COUBT REPOBTBS.
On. Tbbx,
of th« unended order, ftod of the t*riffa
filed thereunder. The city of BaatK Clara
and auocifttioiiB represeoting the tnJHc in-
tereat* of Sacrunento, Stocktoiii and San
Joa« Joined u pUJntiS*. The United States,
the Interetate Commerce Commiaaion, and
the six railroads were made defendants.
The bill alleged, among other things, that
Uiese cities had for a number of years en-
J07ed the same rates aa San Francisco and
Oalclaiid; that Urge industries and other
businesses had been established there be-
cause thej eujcijed terminal rates; that
their commercial importance and prosperttj
would be ruined if the rates were with-
drawn; that no changed wmditions existed
justifying a withdrawal ot termloal rates;
thst they bad not been parties to the pro-
oeedings'in which the orders were made;
and that the "orders authorizing withdraw-
al of terminal rates" Irc^n them were,
among other things, "discriminatory and
unjust, were made without asid cities har-
log their day in court, or without ^ving
SB them an opportunity to show the unreason-
I'ableness thereof, that'no justiflcati(»i for
sueh increase waa shown, and the order of
April 30, 191S, was without evidence, that
petitioners hsve lieen denied the equid pro-
tection of the law and deprived of property
without due process of law, to their irrepa-
rable damage."
The ease was heard before three Judges;
and a final decree was entered which de-
clared that the "orders of the Interstate
Commerce Cconmission of January £9, 191G,
and April 30, 191B, in 4th section applica-
tions Nos, SOS, 342. 343, 844, 350, and 3S
in io far as tbey authorize the carriers
charge for the transportation of west-bound'
transcoatineutal freight destined to Sacra-
mento, Stodcton, San Jost, and Santa Clara,
California, "any greater amount than is
concurrently charged for ths like carriage
of liice freight to San Francisco and Oak-
land, California, were Iteyond the statutory
powers of the Interstate Commerce Commis-
sion, and the enforcement thereof should be
enjoined; and said orders in the particulars
aboTc mentioned are hereby canceled end
set aside." The decree also enjoined and
canceled to like extent the tariffs Bled in
pursuance of such orders. The district
court rested its decision that the Commis-
sion had no statutory power to enter the
amended order npMt the ground that an
order authorisi&g higher rates to these In-
terior cities could not legally be entered
unless there was an "application" to It by
the carriers for that specific purpose and
"a hearing upon the particular application
as in a special cass;* that there had been
DO such sppllcstion and hearing, and that
consequently the orders were void and the
tarifTs filed in pursuance thereof illegal.
Uerchants' ft Mfis. Traffic Asao. t. United
EUtea, £31 Fed. 292.
The appeal, in which all the defendants
joined, raises important questions Involved
in the administration of the 4th section as
amended June IS, 1910, namely: ^
E^rsti Is it essenUU to the validity irfl
an order 'autliorizing a lower rate for «■
longer Ikaul, that it b« based upon an appli-
cation asking oul/ the precise relief granted!
Second: What is the remedy of a com*
munity or shipper which deems itself ag-
grieved by the order made I
Ihe orders hero in controversy were con-
fessedly based upon applications made by
the carriers. Both the amended orders and
the decree recite by numl>erB the applica-
tions dated December 7, IQID. The objoo-
tion made by the appellees is that the lim-
ited authority granted by the CotnmiesioB
had not tieen applied for; since the carriers
asked ipeciflcally for leave to continue lower
rates, which were the same for ports and
for interior California cities, but the Com-
mission permitted these rates to ports while
it denied like ratsi to the interior citie*.
Respondents den/ that the district court
holds in efl'ect that spplicationa for relief
must be granted in toto or denied in toto;
but such is the necessary effect of its de-
cision. Amended | 4 empowers the Com-
mission "upon application" to authorize a
carrier "to charge less for longer than for
shortsr distances." Tbese carriers saked
leave, among other things, to charge on
west-bound transcontinental freight to about
193 coast and Interior cities much less than
to latermountain territory. The Commis-
sion permitted them to charge, to eight of
these cities which were ports, as much l«ss
as the application requested; but as to the
other IKS, which were interior cities, in*
eluding the tour complaining here, permit-
ted the carriers to charge only tomo<oha$
less. In other words, the Commission
grsnted a part of the relief aaked. The
district oonrt says it liad no power so to
do. But there is nothing in the act to jus-
tify limiting the power of the Commission
to either a grant or a denial in toto of the
precise relief applied tor. Sueh a construe-
tion would make | 4 unworkable and de-
feat the purpose of the amendment. It is
at variance with the tiroad discretion vestedos
in the "Commission and the prevailing prae-*
tiee of administrative bodies. It fails to
give effect to the provision that "the Com-
mission may from time to time prescribe
ths sztent to which such designated oom-
mon carriers may be relieved from tb»
operation of this section." It is Inconaist-
,A_^OOglC
1916. •
nNrrBD states r. MEBCHANTS' ft it. TRAFFIC Assa
■lit with Intermountalii Rata CwM (Unit-
ad SUtea T. Atehlson, T. ft a F. R. Co.)
Z34 U. S. 476, OS L. ed. 1408, S4 Sup. Ct
Ecp. 986, wber« the order niBtained granted
relief rerj different from that applied for;
and it finds no aopport in United States t.
Lonicrllle ft N. R. Co. 23fi U. S. SI4, 322,
« L. ed. 245, £51, SS Snp. Ct. Rep. 118,
dted ^u tlie dlatrlot court, in which eaee
relief frmn the operation of the 4th lectlon
had not been granted. The clause in amend-
ed 4th aeetton, which deelaraa "that upon
application to the Interstate Comtnerce
CmDroisBion auch ccaniaon carrier may In
•pecial casea, aft«r InTeatlgatlon, be author-
ised to charge laia for longer than for
ahorter distances" waa designed to guard
agaluat the issae, by the Commission, of
(entral orderi suspending Qie long and
abort haul clause, and to insure acti(»i by
it separately in respect to partioular car-
riers, and only after consideration of the
apecial circumstancea existing. Whenever
•nch consideration baa been glvau, "the
Onnunlsaion may from time to time pra-
•eribe the extent to which sueh designated
Wkunian earner may ba raliered from the
«pention of the aeetlon."
It may ba donbted wbetbsr applicatlcm
by the carrier is a prerequisita to the grant-
ing of relief. As was said in Intannouotain
Rate Cases (United States r. Atcliison, T.
ft B. F. R. Co.) £34 U. 8. 47S, 465, SB L.
•d. 1408, 14£1, S4 Sup. Ct. Rip. BSe, | 4
Test* In tbe Commisalon the "primary In-
stead of a reriewing fonction" to datermine
the propriety of a lesser rate for a longer
distance; and | 13 deeUres that tbe Com-
mission "shall have the same powen and
Mitborlty to proceed with any inquiry In-
atltttted on ita own motion aa though It
had been appealed to by complaint or peti-
tion under any of the prorislona of thia
act, Indndlng the power to malie and en-
force any order or orders In tbe case, or
3 relating to the matter or thing concerning
< which inquiry ta bad, 'excepting orders for
the payment of money," Unlesa formal ap-
plication be an Indispensable prerequisite to
the exercise by tbe Commission of the power
granted by the 4th eeotion, Ita abeence or
a defect in it could be waived; and It would
be waived by the filing of tarlffi under the
order entered. For tbe order is permissive
merely. Ihe carrier la the only necessary
party to the proceeding under | 4. Hie
CommiBsion represent* tbe public While It
la proper and oustomary for ecnomunitles
or shippers interested to participate In hear-
ing* held, there ia no provlalon for notice
to them. They are not bound by the order
entered; at least, in the abamoe of auch
parttdpatiML And U the rataa nuula by
tarilTa llled under the authority grantad
seen to them unreasonable, or unjustly dis-
criminatory, I) 13 and IS afford ample rem-
edy. Reaptxidents contend that, after the
amended urder was entered and the tariffs
filed, they did app^ to the Commission for
relief, "but were denied tbe right of a bear-
ing," and that "tbair protest and demand
were Ignored and denied." What they did
was to petition for a "rdie&ring" in the
proceeding* under the 4tb section, to which
they now aay they were not partiea, instead
of applying for redress under | 13, aa they
had a legal right to do. They mistook their
remedy. To permit communities or ship-
pers to aeek redress for anch grievances in
the courts would invade and often nullify
the administrative autbi^ity vested in the
Commiaaion; and, aa this oaoe illuatratea,
the attempt of the conrt to remove some
alleged unjust discriminationa might result
in creating infinitely more. Tbe decree of
the district court cancels the amended order
and the tariff only so far a* it concerns th*
four complaining dtlea, and thereby dis-
criminate* perhaps most unjustly in their
favor aa against the other ISl interior
dtlea.
It was also contended on behalf of the^,
four dtiea that tba amended orders violated*
the clause added to | 4 by'the Act of June*
18, 1010, which provides that "whenever a
carrier by railroad shall In competition
with a water route or routes reduce tba
rates on the carriage of any species of
freight to or from competitive polnta, it
shall not b« permitted to increase such
rates unless alter bearing I^ the Interstate
Commerce Commisalon It shall ba found
til at such proposed incraass rests upon
changed oonditions other than the elimina-
tion of water eompetition." The anawers
to this eontention ars many. What these
four citiae complain of Is not Increaaa of
rates, but the fact that San I^ancisco and
Oakland may be given rates lower than
theirs; and they strongly deny that water
competition has been eliminated. Indeed,
it waa the Increased effectiveness of water
competition due to the opening of the Pana-
ma canal — a notable change in conditions —
whldi compelled the rat* readjustment of
which they eoroplain; and the higher rates
to the Interior cities, made under authority
of the Commission, were granted after pro-
longed hearings, as part of tba general re-
adjustment of tranaccmtlnental ratea. Tba
provision raited npcB haa no application to
The decree of th* Distriet Oonrt must be
reversed, with dlnetlods to dlsraiss the bfU.
,dbvGoogle
28 87 SUPREME COUttT REPORTER.
(HI TT. a. Ut)
HUTCHINSON ICE CREAM COMPANY
«t aL, P)ffa. in Err.,
Oct. TKUf,g
BTATB OP IOWA. (No. 40.)
A. B. CROWL, Plff. i
Err.,
Pint t.ai Seo
nd Scrlea, Due FncWB ol L&w;
COMMONWEALTH OF PENNSYLVANIA.
(No. 60.)
CoNSTiTTmosAL Law ^=>240(1), 296(1) —
Food ®=1— "Due Pbocbss o» Law* —
"Equal Protection or thb Laws" —
Reoulatino Pbbcbnta<3E of BtmsK
Fat in Icb Csbau.
State (tatutes which prohibit the
ule u "ico eream" of * product containing
lesE than a fixed perccntaga of butter fat
do not take property without due proeeas
of law nor den 7 the equal protection of the
laws, — the particular percentagea fixed not
being so exacting as to be in themselvea
unreasonable, — although the ice eream of
eommerce la not iced or frozen cream, but
is a frozen confection, varying in composi-
tion, and under soma formulas may be made
without either eream or milk.
[Efl. Note.— For olber emiBs, lee Constttutli
Law, Cent Dig. II tS3, 638, 826, K2?: Deo. 1
(e=j!W(l), ISSfl); Food, Cent Dl|. || 1,
iflnltlc
and S.
Protection sf
[Nob. 40 and 60.]
Argued November 13, 1016. Decided De-
cember 4, 1910.
IN ERROR to the Supreme Court of the
State ol Iowa to review a judgment
which reversed a judgment of the Distrlet
Court of Folk County, in that state, sue-
taining a demurrer to an information ofaar-
f ing a violation of a state statute forbid-
ding the Bale o( a product aa ioa eream
which did not eontain a specified percentage
•f butter fat. Affirmed. Also
IN ERROR to the Supreme Court ef th«
State of Pennsylvania to review a judg-
ment which afBrmed a judgment «f the
Superior Court, affirming a conviction
the Court of Quarter Sessions of Erie
County, in that state, for selling as iea
cream a compound containing less than the
minimum percentage ol butter fat q)eeifled
1^ a state statute. Affirmed,
Sm same ease in No. 40, 108 Ifiwa, 1,
L.R.A. 191TB. 198. 147 N. W. 105; in No.
GO. 245 Pa. 554, 01 Atl. 922.
The facts are stated is the opinion.
Mr. Walter JeHreys CktUd for plain-
tiff in error in No. SO.
Messrs. R. Ii. Parrlah and Walter Jef-
freys Carltn for plalntiOa in error in No. 40.
Mr. Oeotge Oosson, Attorney (Jcneral of
Iowa, for defendant in error In No. 40,
Mr. Wllllnm U. Hardest and Mr.
Francii Bhunlc Brown, Attorney General of
Penm^lvania, for defendant in error in No.
60.
Mr. Jtutice Braadvla delivered the opln-*
n of the court:
Theae eaaea ware argued together. In
each a state sUtute which. prohibiU the
sale of ioe cream containing less than a
fixed percentage of butter fat Is asaailed
as invalid under the 14th Amendment; the
supreme court of ea«b state having held its
statute oonstitutionaL State v. Hut'chinsca
Ice Cream Co. 168 Iowa, 1, L.R.A. 191TB,
198, 14T N. W. 105; Com. v. Growl, 245 Pa.
5S4,91At].922. Iowa makes 12 per cent the
required mtnlmum; Pennsylvania 8 per
eent. The material provision! of the ser-^,
oral itatutea are copied in the margin. 1 «
• The right of the state under the polios*
power to regulate the sale of produeta with
view to preventing frauds or protecting
the public health ia conceded by plaintiffs
TOT. And they do not contend that tha
particular percentages of butter fat set bf
llowa: (kide Supp. 1019, S 4990-a20:
"No person, firm or corporation, . . ,
shall manufacture or introduce Into tb»
state, or solicit or take orders for delivery^
or idl, exchange, deliver or have in hia poa-
■eaiion with the Intent to sell, exchange or
expose or offer for sale or exchange, any
article of food which is adulterated or mis-
branded, within the meaning of this act,"
Code Supp. 1013, I 4ge9-a31e:
"For the purpose of this act an article ct
food shall be deemed to be adulterated:
"First. If any aubstance or ■ubstaneea
haa or have been mixed and packed with it
BO as to reduce or lower or injuriously af-
fect its quality, strength or purity.
"Second. If any subatance or substances-
has or have been aubitituted wholly or in
part for the article.
'mird. If any valuable constituent of
the article Itas been wholly or in p«^ ab-
stracted.
"Fourth. If It be an imitation of, or
offered for sale, under the speciQc name of
another article, or if it does not conform tA-
the standards established by law."
Chap. 175, Acta 34th G. A.:
"Ice Cream."
"1, lea cream ia the fioien product madS'
from pure wholesome sweet cream, and
■agar, with or without flavoring, and if
desired, the addition of not to exceed 1 per
cent (1%) by weight of a harmless thick-
ener, and contains not leas than 12 per cent
{\2%) by weight of milk fat, and tba acid-
ity ahall not exceed three tenths (3-10) of
1 per cent (1%).-
Pennsylvania: P. U C3, Purdon's Dig.
Tol. G, p. 529:
"Aa act for Uie protection of the public
health and to prevent fraud and deception
In the manufacture, sale, offering for sale,
exposing for sale, and having in possesaioD'
with intent to sell, of adulterated or dele-
terious ice cream ; fixing a standard of but-
ter fat for ice oream; providing penaltie*
for the violation thereof, and providing for
the enforcement thereof."
«=9For other caiei lee same topic * KBY-NUUBER in all Ker-Namberad
DlaeaU * IndwasG [ Q
inc.
HUTCHINSON ICE CRKAH 00. r. IOWA.
Iowa and FenuqrlnuiU ur« m •xkoting m
to Iw in UiemHlTSi iiiirM«>>i^l«. Iliirtcai
•(her BtatM haro bj almlUr le^UUtlon let
U per c^t M tlia ndiuMMiin; flvs other
states 12 p«r cent; only ^ht atatfis haye
Sflzed a peTcentaga aa lov aa Fennij'lTaQia;
■ aad'tbe United SUtea Department of Agii-
enlture haa dedared 14 per cent to be atand-
ard.* The main ebjeetion nrgad b this:
To require tliat ice oreani, in order to be
legally aalabla, ninit eontain eome butter
fat, is a regalation m unresoonabla and ar-
Utrarj as to lie a deprivation of property
wiUioat due proceoe of law and a denial of
the equal proteotion ol tlia laws. To aup-
poft this eontontiiHi the following trade
toeta are aliowii:
The ice cream of oommarea is not leed or
froian cream. It la a frozen confection —
a compound. The Ingredients of this com-
pound may rary widely In character, In the
mvBtba uaed, and in the proportions In
wUeli Uu? are need. Theae Yariations are
dependent upon the ingenuity, iklll, and
Judgment of the maker, the relative cost
at a partienlar time or at a partieular
place of the poaaible Ingredienta, and the
requirements of the market in raapeet to
taste or selling price. Thus, some Phils-
delphla ica cream Is made of only cream,
sugar, and a vaniljs flavor. In making
other Philadelphia Ice cream the whitea of
eggs are added; aad according to some
formulas Tsnilla ice cream may be made
irithout any cream or milk whatsoever;
for instance, t^ proper manipulation of the
yolka of eggs, the white* of egga, sugar,
aymp, and the vanilla bean. All of these
lUfferent eompounda are commonly sold aa
Ic* eream; and none of them la neceaaarily
unwholesome.
Plaintiffs In error contend that as lee
cream is shown to be a generic term em-
bracing a large number and variety of prod-
ucta, and the term aa used doea not necea-
aarily Imply the nae of dairy cream in Ita
compoeitlon, It is aibltrary and v
able to limit t^e ice cream o{ o
that containing a fixed minimum of butter-
fat. But the l^aiature may well have^
found in these (acta persuasive' evidence*
that the public welfare required the pro-
hibition enacted. The facta sliow that. In
the absence of I^islative regulation, the
ordinary purchaser at retail doea not and
cannot know exactly what he Is getting
when he purchaaea lc« cream. He presuma-
bly believes that cream or at leaat ri^
milk Is among the Important ingredienta;
and he may make his purchase with a
knowledge Uiat butter fat Is the principal
food value In cream or milk. Laws designed
to prevent peraona from being misled in
respect to the weight, measurement, qual-
ity, or ingredients of an article of general
consumption are a common exercise of tbe
police power. The l^sUture deBnes the '
standard article or fixes some of its char-
acteristics; and It may conclude that fraud
or mistake can be effectively prevented Mily
by prohibiting the sale of the article under
the usual tradename, if it fails to meet the
requirements of the standard set. I*ws
prohibiUng the sale of milk or cream con-
taining leaa than fixed percentages of butter
fat present a familiar instance of auch leg-
islation. Cases in the state courts uphold-
ing laws of this character are referred to
in the margin.! This court has repeatedly
■The requirements of the several states
are set forth In V. B. Department of Agri-
•altnre (Bnrean of Animal Industry), Cir-
«nlar 218, on htg»X Standards for Dairy
Producta.
"Section 1, Be it enacted, etc.. That no
peraon, firm or corporate body, by himself.
Itself or themselves, or by hia, her or their
agents, servsnti, or employee!, shall sell,
offer lor tale, expose for sale, or have in
poeaesaioB with intent to sell, ice cream
adulterated within the meaninx of thla act.
"Seetion 2. Ica cream shall be deemed to
ba adulterated within tlie neaning of this
aet—
"First U It shall contain borlo add,
formaldehyde, soediarin, or any other added
•uhatauee or compound that is deleterious
to health.
"Seoraid. If It shall contain salU of oop-
psr, iron exld, ochers, o
atanca deletwlona to hea
thia parai^ph shall not be construed to
rhuilt the use of harmless ooloring matter
ice cream, when not used for fraudulent
*4biid. If tt shall emitaiH amy delateriona
flavoring matter, or flavoring matter not
true to name.
"Fourth. If It be an Imitation of, or of-
fered for sale under, the name of another
"Section 4. No ice cream shall be sold
within the atata containing leaa than eight
(8) per centum butter fat, except where
fruit or nuts are used for the purpose of
flavoring, when It shall not eontain less
than six [B] per centum butter fat."
■State V. Schlenker, US Iowa. «4S, 61
L.R.A. S47, 84 Am. St. Rep. S6D, 84 N. W.
696; State v. Campbell, 64 N. E. 408, 10
Am. St Rep. 419, 18 Atl. BBS; People v.
Bowen, 182 N. Y. 1, 74 N. E. 48B; Stato
V. Greacent Creamerv Co. 83 Minn. 284, 64
L.R.A. 466, SS Am. 8t Rep. 464, S6 N. W.
107; Stote v. Stme, 46 La. Ann. 147, 15 So.
11; Deems v. Baltimore, 80 Md. 164, 26
Ii.R.A. fi41, 46 Am. St Rep. S3B, 30 AtL
648; Com. v. Wheeler, 205 Maas. 3B4, 137
Am. St. Rep. 466, Bl N. E. 416, IS Ann.
Caa. 319; St. Louis v. Grafeman Dairy Co.
IflO Mo. EOT, 1 L.R.A.(N.B.) 826, 89 S. W.
627; StaU v. Smyth, 14 R. L 100, 61 Am.
Rep. 844.
A^iOOglC
3D
87 SUPREME COURT REPORTEa
Oct. Tebv,
sustained the Tftlidltf ol stmilar prohibi-
tions. Scbmidinger v. Chicago, 226 U. S.
S7S, 67 L. ed. SB4, 33 Sup. Ct. Rep. 182,
Ann. Cao. 1B14B, E84; Armouf & Co. t.
North DaJcota, 240 U. S. 510, 60 L. ed. 771,
36 Sup. Ct. Rep. 440, Ann. Caa. 1S16D, 548.
It is specikll; urged thtX IJie atttutes are
nnconstitutional becaiue thej do not mcrel;
define the term "ice ereajn;" bnt arbitrarily
prohibit the saie of & large Tarietj ot whole-
soma compounds theretofore included under
the name "ice cream." The acts appear to
UB merely to prohibit the sale of auch '
pounde aa ice cream. Such ia the conatruo-
S tion given to the act by the (upreme court
r of Iowa. *State y. Hutchinaou lee Cream
Co. les Iowa. 1. 15. L.R.A. 1917B. 198.
147 N. W. 196, nhlch la, ol course, binding
on ua. We cannot assume, in the abaenee of
a definite and authoritative ruling, that the
aupreme court of Pennajlvania would con-
atrue the lair of that itate otherwise. The
coDviction here under review was tor selling
the "compound" aa ice cream, so that we are
not called upon to determine whether the
state may, in the exercise of its police
power, prohihit the sale even of a whole-
tone product, it tha public welfare appear
' to require auch action — and if, aa here. In-
terstate commerce is not Involved. See
Powell t. Pennsylvania, 127 U. B. 678, 686,
32 L. ed. 263, 258, 8 Sup. Ct. Rep. 0S2,
1257; Schollenberger *. Pennsylvania, 171
U. S. 1, 16, 43 L. ad. 49, M, 18 Sup. Ct
Rep. 757.
In view of the coudutlon stated above, It
la unneceaaary to oonalder whether the atat-
ntea are or are not suatalnable aa health
measures; and upon thii we express no
The judgment in each case ia affirmed.
'-'? tj. s. mi
SAN'DERS ICE CREAM COMPAKY, PUT.
in Err,
STATE OF IOWA.
[No. SS.]
IN ERROR to tha Supreme Court of the
Stale of Iowa. By stipulation of counsel
this caae was heard and submitted upon the
record in Hutchinson Ice Cream Co^ v.
Iowa, ante, p. 28.
FRANK J. KANE, PlIT. in Err.,
STATE OF NEW JERSEY.
CoItSTITUTIOSAL T*AW «=23S — "ITqcai.
pRoTKcnoN or Tim T.aws"— I'nrvH.BoBS
ANn iMMONITieS— STATB R'i;nT'I.ATIOS OF
Motor Vehici.eb — Pisikiulvation
A<;.M\BT NONRKSirUtST!".
1. Nonresident automobile owner* are
not denied ridhta under U. S. Const. 14th
.\iiii;nil.. because the New Jersey Automo-
bile Law [N. J. Lawa 1D08, p. 61S), la
addition to prorldins for the regirtrattos
of automobilea and the Uoensing o( driven,
requirea » nonreaident owner to appoint tha
■Bcretary of ttata aa Ua agent upon whom
proeesa may ba aerved "in any action or
l^aJ proceeding caused by the operation ol
hu registered motor vehicle within this
state against such owner."
PM. Ifote.— Pot Dt&er ckkb. «se Cmtirfltutlonal
Law, CwiC Ttig. I «M: D«i. Dig. «s>I3e.
For otber dennitlona ue Words snd Phrsass,
Pint >.ni] Becond EtariM, Bqual Protvctlon oi
tHe I^w-l
OowmrrnnowAL I^w «=i'280a)— "Eqtiai:.
Pbotictior or the La wb"— State Auto-
MOBILB Law — DlSCRUnNATIOH AOAIKST
2. The absence from the New Jersey
Automobile Law (N. J. Laws IBOS, p. 613),
which provides for the r^atration of an>
tomobiles and the lionising of drivers, of
any reciprocal provision by which nonreai-
denta wlioae cara are duly regiatered in
their home state are given for a limited
period free uae of the hlghwaya In return
for similar privileges granted to residents
of New Jersey, does not involve aa uncon-
etttutional discrimination against nonresi-
dents, where tba snnual feea prescribed are
not BO large as to be unreasonable, and
where any resident owner would be subject*
ed to the full annual diarge for the use of
the highways for any period, however brief.
' [Bd. Nate.— For otber cawa, see Conntttatlonal
Lrw. Crnt. nir. i B8T: Deo. Dig. «=»ma).1
CouuxBCB e=3]0— Stats AtrrouoBiu Law
NOHUSIDBNTS— COHOBBSSIOKAI. IHAO*
3. The requirements of the New Jersey
AutomobUe Law (N. J. Laws igOB, p. 613),
lor the regietration of automobiles and the
licensing of drivera, are not invalid r^ula-
tions of interstate commerce, — until Con-
through tha state on his way ^om New
York to Pennsylvania.
[Ed. Note.— For othsr esse
Cent. DIk. I S; Dec Dla. «=
Co!«frrrTuno!»AL Law *=23011>— "BqDAt.
Pbotection or the Laws — Statb
Adtomobim Law— Licirhk Fxca.
4. The fact that the feea oollected un-
der the New Jersey Automobile ijiw (N.
J. Laws 1906, p. 613) exceed the amount
required to defray the expense of main-
taining the regulation and inspection d^
Crtment, which excess, under the law, la to
applied to the maintenance of improved
highways, does not render invalid aa t«
nooreeidenta, under U. 8. Const. 14th
Amend., the re<iuirements of that law for
the registration of automobilea and ths U-
censing of drivers.
tEd. Nnte.— For othpr canea. ■#• CnDitllntlOBal
Law. Cent. Dig. ) «87 : Dec DIs. r
[No. 61.1
IN ERROR to the Court of Errors and Ap-
peala of the State of New Jersey to re-
view a Judgment which affirmed a Judg-
ment of the Supreme Court of that state,
affirming a conviction in the Recorder's
lOIS.
EAN2 T. HZW JERSET.
31
Conrt of til* CUj of Patanon of violating
the date aatomobile l*wa. Afflnoed.
Bm nun* cue below, 81 N. J. L. 604, 80
AtL 463, Ann. Ca*. 19]£D, 237.
He facts ar« ttated In the oplolon.
lleun. John W, Grlcgs and Obarlea
niaddras TeaT7 for plaintiff Id error.
Meaer*. HerlMrt Bok> and John W.
Weeeott, Attorney General of New Jeraej,
^for defendant In error.
• *lfr. Jiutlee Brandel* delivered tbe opln-
Ion of the eonrti
The New Jeraey Antomobile Iaw of 1008
(P. L. 1B08, p. SIS) proTidea to anbetanee
that tM person, whether a resident or non-
resident of the state, shall drive an aatmno-
bile apon a publio highway unless he shall
have been licensed so to do and the auto-
mobile shall have been roistered under the
statute; and also that a nonresident owner
■hall appoint the secretsrf of state his at-
totn^ upon whom proceai maj be served
*^ snj action or legal proceeding caused
bj the operation of his registered motor
vehicle within this state sgainst such own-
er." The statuta fixes the driver's lii!«nu
fee for cars of less than thirty horse power
at 12, and more than thirty horse power
at M. It fixes the T<«iBtraUon fee at $3
for oars of not more than ten horse power :
46 for thoae from eleven to twenty-nine
horse power; and |10 for those of thirty
or greater horse power. Both license fees
and registraUon fees, whensoever issued, ex-
pire at the eloae of the calendar year. The
moneys received from license and r^istra-
tion fees In aioess of the amount required
fot Uw maintenance of the motor vehicle
department are to be applied to the main-
_taiauee of the Improved highways. Penal-
ities are prescritted for using the pablie
* highways Vithont complying with the re-
quirements of the act Ihe material por-
tions of the statuta are copied in the mar-
gin.l
Kane, a rerident of New York, was ar--
rested while driving Us automobile on tbaS
publio highways ol New JerBey,*and tried*
In the recorder'a court The following facts
were stipulated: Kane had been duly
licensed as a driver under the laws of both
New York and New Jersey. He had reg-
istered his ear In New York, but not In
New Jersey. He had not filed with the
secretary ol state of New Jersey the pre-
scribed instrument appointing tbat official
his attorney upon whom process might be
served. When arrested he was on his way
from Hew York to Pennsylvania. The ag-
gregate receipts from license and registra-
tion fees for the year csceeded the amount
required to defray the expenses of the motor
vehicle department so that a large sum be-
eame available for maintenance of the Im-
provad roada of the sUte. Kana contended
that the statuta was Invalid as to him, a
nonresident, baeanse It violated the Con-
stltutlon and Uws of the United States reg-
ulating Interstate commerce, and also be-n
eause it violated 'the 14th Amendment,*
These contentions were overruled, and ho
was fined |6. The conviction was duly
reviewed both In the supreme court and
by the court of errors and appeals. The
contentions were repeated In both of those
courts; and both courts afOmied the con-
viction. Kane ». State, 81 N. J. L. 504,
L.R.A. 1017B, 553, 80 Atl. 453, Ann. Caa
1012D, 237. me case was brooght here b;
writ of error,
Us power of a state to regulate the usa
of motor vehicles on its highways has baea
recently considered by this court and broad-
ly susbtined. It extends to nonresidents as
well as to residenta. It includes the ri^t
to exact reasonable oompeusatiou for special
facilities afforded as wall as reasonable pro-
visions to inanre safety. And it is properly
exereisad in Imposing a llceusa tee graduat-
ed aoeordlog to the horse power of the en-
ITart IT.— Hie (
hfclas.
"He. (1) Every resident of this state and
every nonresident whose automobile shall
be driven In this state, shall, before using
aoch vehicle on the public highways, register
the same, and no motor vehicle shall be
driven unless so registered. Every re([iatrs-
tion shall expire and the ccrtlltcate Uiereof
become void on the Slat of December of each
year; provided. It may be lawfnl for any
automobile duly roistered, to operate under
•aid registration eertlfieate for a period not
aaceeding thirty-one days after the expira-
tion of said r^rlrtration oertiflcata. . . .
The applicant shall pay to the commissioner
of motor vehicles for each registration, a
fee of 13 for automobiles of the first class;
46 for the second elaaa, and 410 for the
third class. Automobiles of ten horse power
or lass, shall be of the first class; from
eleven to twenty-nine borse power, Ineluriv*^
of the second class-, and of thirty horse
ewer or more, of the third class. . . .
cb owner having a residence outside of
the state shall file with ths secretary of
state a duly exeeuted instrument, cooatitut-
ing fba secretary of state and his successors
In offloa, the true and lawful attorney upon
whom all original process in any action or
legal procaedmg caused by the operation of
his registered motor vehicle, within the
state, against such owner mi^ be served,
and therein shall agree that any orijclnal
prooess against such owner shall be of the
same force and effect as if served on such
owner within this atata; the service of such
process shall be made by leaving a copy of
the same In the ofllca of the secretary of ,
n SUFRKIIB OODBT REPOBTEB.
Oct. Tmt,
gins. Hendridc ▼. Uu^latid, 235 U. 8. SIO, '
BD li. ed. 385, 39 Sap. CL Bep. 140. Serenil
TetMtaa art nrgcd whj that ema* ihonld
■ot be deemed eon trolling:
1. The iSurjUad Uw did sot reqnlre the
■onre*ideDt to appoint an agent within ttu
•tate upon whom proeeM ma; be ao^ed.
But it waa recognized In diaciualng It, that
'^e morement of motor Tetilclea ma the
hi^waja ia attended by eonatant and icri-
«na dang«n to the public' (p. <2E.) We
know that ability to enforce criminal and
eivil penalUea tor tran^reaaion ia an aid
to aecnring obaervanee of lawa. And in
▼lew of the apeed of the automobile and the
hablta of men, we cannot a^ that the leg-
lalatnre of New Jeta^ wa* unreaaonable
fn believing that ability to ceUblid^ by
legal proceedinga withhi the state, any
*n»»»t.i liability ot nonreaident ownera,
waa eaaentlal to poblie aatet;. Tliere la
nothing to ahow that the requirement la
mdiily burdensome in practice. It ia not
a diacrimination againat nwireaidenta, imj-
lug (hem equal protection ot the law. On
tbe contrary, it puta nonreaident owner*
npon an equally wiUi resident owners.
_ 2. The Maryland law contained a redpro-
Seal proTiaion by which nonrceidenta whoae
• eara ara duly Teetered in^^Ir home itate
are given, for a limited period, free nae of
the highway! In return for aimilar priTi-
legea granted to reaidenta of Maryland.
Such a proTiaion promotes the conTcnience
•f ownera and prerenta the relative hard-
ship of having to pay the full registration
fee for a brief uae of the hi^waya. It haa
heeome common in itate le^latlon; and
New Jersey has embodied It in her law
since the trial of thla caae in the lower
court. But it is not an eaaential of valid
regulation. Absence of It doea not involve
diaoimlnatloB againat nonreaidenta; for
any rcsidait similarly lituated would ba
subjected to tlte aama impoeition. A resi-
dtnt desiring to use the highways only a
aingle day would also have to pay the full
annual fee. The amount ot the fee is not
ao large aa to be unreasonable; and it la
clearly within the discretion of the state to
determine whether the eompenaation for
the uae of ita highwaya by automobilea shall
be determined by way of a fee, payable an-
nnally or aemlannudly, or by a toll liased
on mileage ix otherwise. Onr decision sus-
taining the Maryland law waa not depend-
ent upon the eziBtence of the redprocal pro-
vision. Indeed, the plaintiff in error there
waa not in a position to avail lUnuelf of
the redprocal clause i and it waa referred
to only because of the contention tliat the
law diaeriminated between nonresidents;
that ia, that Uaryland extended to reaidenta
ot other atatea privil^ea it denied to reol-
doiU of the Natriet.
3. In Bendrick t. Uai7land, It appeared
only that the nonreudent drove hia automo-
bile Mto the sUte. In this case It is ad-
mitted that he waa driving t\nug\ the
state, nie distinction Is of no siguUlcanea.
Aa we there eald (822) : "In the absence ot
national l^slation covering the subject, a
state may rl^tfully prescribe uniform reg-
ulations necessary for public safety and
order in respect to the operation upon ita
highways of all motor vehicles — those mov-
ing In Interstate cammaroa as well as
state with a serrica fee of $2 to be taxed on
the plalntiff'a costs of suIL Baid commis-
aioner ot motor vehides shall forthwith
notify such owner ot such service by letter
directed to him at the poat-olBce address
stated in his application. . , .
*^T. No person shall hereaft«r drive an
automobile upon any public highway In thia
state, unless licensed to do so in accordance
with the provisiani of thla acL No person
under the Sfe of sixteen years sh^ be II-
•ensed to drive automobiles, nor shall an^
person be licensed to drive automobiles until
said person shall have passed a aatiafactory
ssami nation as to his ahllity aa an operator.
. . , Here shall be two elaaaes of drivers'
licenses. Those authorlning the licensee to
drive eara of less than thirty horse power
shall be of the first class, and those author-
izing the licensee to drive cars ot thirty
and greater horse power shall be of the
second dsss. The simnal license fee to be
diarged shall be 92 for drlvera of the first
class, and 94 tor drlvera of the seeond
the provisions of thia act, whether from
fines, penaltlea, regiatrvtion teea, license
tees, or otherwise, shall be accounted for
and forwarded to the eommiasioner of motor
vehides and b; him paid over to the treas-
urer of the atate of New Jersey, to be ^>-
propriatad annually to the commissioner ot
public roada, to be uaed aa a fund for tha
repair ol the improved roads throncfaont
the state, whether they had been origuially
built by sUta aid or not, and to be by tl»
aaid oommissioner, i^portioned i
roada in each eoun^, the ahare i4)portioned
each county to be used for the repidr of
Improved roads in that oounty under the
direction ot the oommissionsr of publla
roads or his authorized representatives, and
to be paid in the same manner aa state
funds are now paid for the improvunent ot
public roada. The term 'Improved roads' as
used In this seotlga shall not indude streeta
paved with flobblestoDe^ Bdglum block ai
asphaU."
r>' Google
1«1«.
BALTIMORE 4 O. E. CO. r. WHITACRB.
S 4. In tbe Headrick Cbsb it did not appeaT,
£*•■ here, tb&t*tho fees collected under tha
Ifotor Vehicle I^w exceeded the amount r«-
qniied to defray the expense of maintaining
the regulation and impection department.
But the Maryland statute, like that ol New
Jersey, contemplated that there would be
mch excess, and provided that it should
be applied to the maintenance of improved
roads. And it was expressly recoguiced that
the purpose of the Maryland law "was to
■eenre aome compensation for the use of
facilities provided at great coat from the
class for whose needs they are essential
and whose operations vrar them are pe-
ealiarly injurious."
nis Judgment should b« affirmed.
Ur. Justice Pitney took no part in the
woaideration or decision of this case.
(ft u. 8. in)
BALTIMORE 1 OHIO RAILROAD COM-
PANY, Plff In Err.,
HARVEY W. C. WHITACBB.
Courts .s=>390(21— Ebror to State Coust
— FoLLOwiNO Decibioi* Below.
1, Only tn case of dear and palpable
■mr will a unanimous ruling of the high-
est state court that the trial court ^d
properly left to the jury a suit under the
Employers' Liability Act of April 22, 190S
(3S Slat, at L. 66, chap. 149, Comp. St*t
1913, 3 SSfiT), be disturbed by the Federal
Bupreme Court on writ of error.
[Ed Nnlr.— For otli«r caieB. see Courts. Dae.
Dtit. .<te>399(!); Appeal and Error. Cent. Din.
t »w.l
TniAL *=>263(9>— REQUESTED Ikstbdo-
TIOItB— iGflOBlNO BVIDEHCK.
2. Instructions on tbe issues of negli'
genee and assnmptlon of risk are properly
refused where, in each instance, the recital
therein did not include all the facts which
the jury was entitled to con^der on the
IsBDes presented, and concerning which
there was some evidence,
s Trial, Out
Dig. i S9): Dec. D<|. «:3M(k).]
Aigued Norember 1, 181S. Dedded Decem-
ber 4, 1010.
IN ERHOR to the Court of Appeals of
the State of Maryland to rerlew a judg-
ment which affirmed a judgment of tha
CIrcoit Court for Washington County, in
that state. In favor of plaintiff in an action
tmder the Federal Employers' Liability AeL
Affirmed.
Bee same case below, 124 Ud. 411, 02 AtL
1060.
The facta are stated in the opinion,
Mcsera. Dnncan K. Brent, George A.
Pearre, A. Hunter Boyd, Jr., and Oeorgs
~ Hamilton for plaintiff In error.
Messrs. Frank A. P^rdew and Albert
A, Donb for defendant in error.
o
* Hr. Justice Brandela delivered the c^Ib-*
n of the court;
Whltaere, a freight train brakeman, while
walking through A railroad yard on a dark
and fo^7 night, fell into a water cinder pit
was seriously injured. He brought suit
under the Federal Employers' Liability Aet
of April S2, 1908 (chap. 14S, 3S SUt. at L.
65, Comp. Btat I&13, | 8flG7), in a sUta
court and recovered a verdict Exceptl<»is
taken to certain refusals to rale. Tha
court of appeals of Maryland affirmed the
judgment of the court helow. 124 Md. 411,
92 Ati. loeo.
It appeared at the trial that, although
the pit was of modem construction and well
adapted to the purpose for whi^ It waa
constraeted, it was not protected by a guard
rail. There was testimony that at the
time of the accident certain lights allied
to havs been provided about the pit were
not lighted; that it had been raining; and
that the top of the water was covered to
some extent with aahes, which made it
difficult to distln£ulah the anrfaee of tha
pit from solid ground. It waa admitted
that Whltacrs was engaged in Interstats
commerce. The defenses relied upon were
assumption of risk and denial of negligeneeL
The defendant (plaintiff in error) request-
ed a peremptory instruction la its favor,
on the ground that there was not sufficient
evidence to entitle the plaintiff to recorer.
The appellate court was unanimous In hold-^
ing that the trial court had properly lett^
the case to the Jury. No'dear and palpable*
error la shown which would justify ua in
disturbing that ruling. Seaboard Air Line
R. Co. V. Padgett, 238 U. 8. 668, 073, SB
L. ed. 77T, 781, 36 Sup. Ct Rep. 481; Great
Northern B. Co. v. Knapp, 240 D. B. 464,
486, «0 L. ed. 740, 761, 3S Sup. Ct. Rep.
390. The defendant further complains that
the trial court refused to gtv* certain In-
structions on the issues of n^tigenee and
asBumptlon of risk. These inttmctlons
were properly refused; because in each In-
stance Uie recital therein did not Include
all the facts which ths jury was entitled to
conrider on the issues presented and con-
cerning which there was some evldeneSb
The judgment ia affirmed.
,A_^OOglC
H ST SUPKBHS COURT REPORTER.
(141 D. B. m)
HENRY H. KRYGEH, PUT. la Err,
Oct. Tski£,h
EDWARD H. WILSON.
CouBTS ^=394(2)— Ebbob to Stats Cocbt
^^OFB or Revhw— QnxBTioNS or Lo*
OAL IiAW.
1. Wbetber the <»DC«lletlon of b land
Koverned by the lav of the situs
contract ie Koverned by the lav of the situs
or of the plBoe of ni&klnK Bud performance
is purely a question of local common lav
wiliL which tae Federal Supreme Court is
not concerned on writ of error to b atate
[Ed. NatB.~For otber eu«a, >ea Coarta. Cent.
Dig. ( lOlS: Dw. DIs. «=3ilH(l).]
OotsarrroTioNAL Law «=s>309(1)— Dub Pro-
cess OF IUaw— Notice — Cancellation op
IiAHD COKTEACT.
2. The nonreBident vendee in an execu-
torr contract of sale may not say that his
rights thereunder were forecloMd without
due process of law because of tack of actual
notice of cancelation proceedings taken by
the vendor under the law of the situs of the
property, where. In fact, his rights were
foreclosed not by the cancelation proceed-
ings, but by a decree of a court of tlie
state of the situs, quieting title In the
vendor, rendered Id a ault in which the
vendee appeared and asked for the land
under the contract of sale, the court baaing
its decree upon the flndine that a default
occurred of which the vendor is entitled to
take advantage, having complied with the
oancelation lav, which the court held to be
controlling, i. e., the law of the situs rather
than the place of making and perf<
[Gd. ]
-For otber
QcEsriON— Impairing CoM'
TXACT BT JUDICLAL DECBEE.
S. Impairment of a contract by judi
eial decision does not raise a Federal ques
tion which can be reviewed by the Federal
Supreme Court on writ of error to a itat«
e CoutU. Cent.
Ur. Jnitloe Brmndeli detlvered fjt* opin-*
i«t of the court:
TIIb case eomes here ob writ of error to
the suprema court of North Dakota to re-
view B decree quieting title In the defend-
ant In error — the plaintiff below — to land
situated In that cUte. The plaintiff in er-^
ror, a resident of Minnesota, claimed nader*:
an executory contract for*the purchase of"
the land in controversy, and the rights <rf
the parties turned upon whether this eon-
tract was outstanding or had been duly
canceled. Both Minnesota, where tbe con-
tract was made and to be performed, and
North Dakota, had statutes providing that
a vendor in a contract for the sale of land
may not cancel and terminate the same upon
default, except after written notice to the
idee, giving him at least thirty days
within which to make good his nonperform-
ance. Minn. Rev. Stat. ISOS, S ***2i N. D.
Rev. Codes 1905, chap. 30, art. 3, N. D.
Comp. Iavb 1913, chap. 30, art 4. Ths
material provisions of the latter statute are|.
copied in the margin.^ Ttie vendor in this**
(grantor of defendant'In error) had*
given to the aheriff of the county where the
land lay a written notice of cancelation to
be served upon the plaintiff in error if found
within the said county, and upon return of
not found, caused the same to be published
in a county nev^iqier, and later filed tor
record affidavits of publication and of non-
redemption, — all in eonformity with the
North Dakota statute, if it applied.
When the present action was brought to
quiet title, plaintiff in error defended, and
asked for oounter relief, contending that his
contract was still valid and aubsisting, aa
i the Supreme Coort of the
1 State of North DakoU to review a judg-
ment which afSrmed a judgment of the Dis-
trict Court of Kidder County, In that lUte,
in favor of plaintiff in a onlt to qniet title.
Affirmed.
Sea same eaae below, 20 N. D. 28, liB N.
W. 721.
The factB are stated in the opinion.
Jieetn. O. E. Holman and William W.
Fry for plaintiff in error.
UcBsn. GeorcA S. Orlmea and Jease
Tan Talbenbnrc for defendant in error.
IN. D. Rev. Codes 1S05, chap. 30, art. 3;
"Far. 7494. Owner must give written
notice to vendee or purehaaer. — No owner
of real estate, or owner of any equity there-
in, [who] shall hereafter make or execute a
contract for deed, bond for deed, or other
instrument for Uie future conveyance of
any such real estate or equity therein, shaU
have the right to declare a cancelation, ter-
mination or forfeiture thereof or there-
under, exoept upon written notice to the
vendee or purchaser, or his assigns, as here-
inafter provided; and such notice shall b«
given to such vendee or purchaser or hij
assigns, notwithstanding any provision or
condition in any snch instrument to the
contrary,
"Par. 740fi. In ease of default. Contenta
of notice. — Whenever any default shall have
been made In tba terms or oondltions of any
such' Instrument hereinafter nude, and the
owner or Tendor shall desire to cancel or
terminate the some, [he] shall, within a
reasonable time after such default, cause a
written notice to be served upon the vendee
or purchaser, or his assigns, stating that
OsbFdt othar cu« ■<
I* topic * KBI-NUUBBB In aU Ker-Numb«r«a Dlswta ft IndeM*
loie.
EAYGES *. WII£ON,
ss
the action prescribed ij flia lilnnMotA
■tatut« to entitle » vendor to caaeel had not
been taken. The trial court held that the
North Dakota law governed; that under it
the contract had beoi "dulj and legallj
caneeled;" that the plaintiff In error hav-
ing ahown no right In the land, title should
be forever quieted in the defendant In er-
ror, ms decree was afflmied bj the su-
preme court on appeal. Wilson v, Kryger,
£ft M. D. 2S, 149 N. W. TBI. We are asked
to review the case on the ground that the
k- state court deprived the plaintiff in error
• of property without'due process of law and
Impaired the obligation of his contract, tn
holding that the cancelation proceeding, of
which the plalntiB in error had no actual
■otiee, effectively terminated his rights un-
der the contra«L
It la apparent from the above statement
Uiat there has Iwen no lack of due process.
The court below, having jurisdiction of tha
•nit to quiet title, wss called npon to de-
tannine the eonBictJng elaims to the land.
The plaintiff in error voluntarily appeared,
Knd he availed himself of the opportunity
to urge bis elsima to equitable ownership
under the eontract of sale. The court de-
elded againat him, holding the contract no
lougn outstanding. The most that tha
plaintiff In error can say ia that the state
oourt made a mistaken application of doc-
trines of the conflict of laws in deciding that
the cancelation of a land eontract la gov-
•med by the law of the situs instead of the
place of making and performanoe. But
that, being pnrely a question of local com-
mon law, ia a matter with which this court
is not conecmed. Pennsylvania R. Co. ▼.
Hughes, ]»I U. S. 4TT, 4B L. ed. 268, U
Bop. Ct Bep. 138; Finney T. Guy, 189 U.
B. 835, 946, 47 L. ed. 830, 84ft, SS Sup. CL
R^. 658; Allen v. AH^iany Co. 190 U. S.
458, 4S I^ ed. 661, SO Sup. Ct Rep. Sll;
Marrow v. Briakley, IS* U. S. 178, 32 L. ed.
864, 0 Bi^. Ct Rep. 267.
The argument of the plaintiff In error la
seemingly based upon tha erroneous theory
that his rights were foreclosed by the can-
celation proceeding, which, lacking the req-
uieite notice, deprived bin of prt^erty
without due process. But the action un-
der the cancelation statute was in no senae
a judicial proceeding. It was simply a
statutory condition with which vendors were
required to comply before they could take
advantage of a default by the vendee. It
the contract, properly interpreted, or the
law, properly applied, required that tbts
condition be performed in Minnesota, steps
taken by htm under the North Dalcota st«t-
Dte would be ineffective. Whether or not
proper proceedings had been taken to secure^
cancelation could be determined only by a^
court having •Jnrisdletlon; and the North*
Dakota court had jurisdiction not only over
the land, but, through the voluntary ap-
pe*ranes of plaintiff in error, also over
him. His rights have been foreclosed, not
by ths cancelation proceeding under tha
statute, but by a due and r^ular judicial
decree which was based upon the flnding
that a default had occurred, of which the
vendor was entitled to take advantage, hav-
ing complied with the proper law. If tha
plaintiff in error had not submitted himself
to the Jurisdiction of the court, the decret
could have determined only tha title to the
land, and would have left him free to as-
sert any personal rl^ta he may have had
under the oontraet. But, having eome Into
court and speeiflcally asked In his cross bill
that he be declared entitled to the "^ossea-
slon and control of tha real estate described
•nsli default occurred, and that said con-
tract will be canceled or terminated, and
ahall recite in aaid notice the time when
•aid cancelation or termination ahall take
effect, which shall not be less than thirty
days after the service of suoh notice.
"Par. 7498. Notloe, how served. — Such
notice shall be served upon tha vendee or
purchaser, or his assigns, in the manner
■LOW provided for the service of summons
tn the district court of this state, if suoh
rerson to be served resides within the stat«.
t euch vendee or purchaser, or his assigns^
«• tiie case may be, raaldes without the
•tate or cannot be found therein, of which
fact, the return of the sheriff of the county
te whieh eald real estate is tituated, that
atMb person to be served cannot be found
fa his coun^, shall be prima facie evidence,
then such notice shall be served by the
publication thereof In a weekly newapaper
within said oounty; or. If there la no week-
ly newspaper within said county, then ia a
newspaper published at the capital of this
state for a period of three suecessive weeks.
"Par. 7407- Time allowed. — Such vendee
or purchaser, or his assigns, ehall have
thirty days after the ecrvice of such notice
upcoi him In whieh f« perform the condl.
tlona or eomnly with the provisions upon
whieh the default ahall have occurred) and
upon sueh performance, and upon makinr
suoh payment, together with tiie costs of
service of such notice, such contract or other
instrument shall be reinstated and shall
remain in force and effect the same as if
no default had occurred therein. No provi-
sion in any contract for the purchase of
land, or an Interest In land, shall be eon.
atrued to obviate the neeesai^ of giving ths
aioresald notice, and no eontrawt ahall ter-
minate until such noUes is given, any pro-
vision in nid OOTitraet to tha eoutraiy not-
withstanding,"
Tha provisions of the Minnesota statute
ars aubstsntially to Uie same effect.
,A_i00gle
IT 8UFBEUB COURT REFORTBB.
Oct. 1^x1^
in tha complklut berolit under a eontnet of
■ala," h« cuuiot now compUin if 1m ba*
bMa concluded altogether in tha premiaaa.
like pUintiff In error rdtea upon SeloTW,
B. 4 Co. T. Walah, £28 U. S. 112, S7 L. ed.
US, K Sup. Ob Rep. eS. That was a per-
aonal aotion for breach of contract, and not,
like the preaent case, an action merelj to
determine the title to land; and, aa the
court found on the facta there involved, that
the proper law aa to oaucelation had been
applied, the caae cannot be conatrued
holding that an erroneoua application there-
of would raiae a queation of due procesa.
Tha contention based on tha contract
elauae ia equall7 devoid of merit, for there
haa been no eubaequent legialation impair-
ing the obligation of the contract. Impair-
ment b7 judicial decision doea not raise a
Federal question. Gross Lake Shooting k,
Fishing Club T. Louisiana, 224 U. S.
6fl L. ed. 624, 32 Sup. CL Rep. E77.
Judgment afllrmed.
JAMES SIM, Petitioner,
WILLLUf EDENBORN.
GouBTS «=>360(14} — Fbobbal Coubtb ■
Following Dkcmion op State Count —
llEscissioM — Reotobation of Statdb
Quo.
The Federal Supreme Court, when
undertaking to determine righta dependent
upon the lawi of a state, should follow a
ruling of the highest court of that state
that persons induced to aulwcribe to a
Bjndicate agreement for the purehaae of the
capital stock ol an existing corporation, to-
gether with certain ooal properties, through
the mialending representations and auppres-
■ions of fact of tba promoter, whom the/
created their agent in the matter, maj re-
scind, upon diacovering that he was a ma-
Joritj owner of the stock to be purchased,
and recover the amount of their subacrip-
tiona, without doing anything more to re-
store the status quo than to tender tha
■tock which thej had received under the
agreement.
[Bd. Note^-For other caasa. lee Courts. Cent.
DfR. 9 m: Dec. Dig. «=93Ge(14).l
[No. 81
ON WRIT of Certiorari to the United
States Circuit Court of Appeals for
the Second Circuit to review a judgment
which reversed a judgment of the District
Court for the Eastern District of New York,
ia favor of plaintiff, in a suit to rescind a
contract for fraud and to recover payments
made tkereusder. B«T«raad) judgment of
trial court affirmed.
Gee same cass below, 121 a 0. A. S3$,
806 Fed. 270.
Tha facts are stated in the opinion.
Mr. Ttieron G. Strong for petitioner.
MeasTB.- Joseph W. Bailey, Martin W.
Littleton, and Owen N. Brown for respond-
* Mr. Justica HcKernolda delivered the*
opinion of the court:
B; an action at law commenced in tbc
supreme court. Kings county. New York,
and subsequent! J removed to the United
States circuit court because of diverse citi-
senship, petitioner, Sim, sought to recover
from respondent the amounts paid upcn
subscription a to a syndicata agreement
which the latter fraudulently induced him
and his assignors to make. By stipulation,
a jury being waived, tha laaues were r*-
ferred to a referee. Th« reported fact^
essential to an understanding of pointtM
now involved, are summarixed below. ^
* While owning the majority stock ol*
United States Iron Company, respondent
and others conceived a scheme to consoli-
date it with certain coal properties, erect
blast furnaces, engage in smelting and man-
ufacturing Iron, etc He accco'dingly pre-
pared an agreement, dated April 16, 1602,
stating generally the ends in view, and lit
vited subscriptions. This instrument desig-
nated hira and two others as "syndicata
managers," and recited there was an oppor-
tunity to acquire for cash the $1,000,000
capital atock of that company, together with
valuable coal propertiea, and that the pur-
pose was to raise the essential two and a
half million dollars. It further specified
that "tha syndicata managers hereundes
sball have the direction and management
of the subject-matter of the said syndicate^
and each subscriber nominates and appoints
the syndicate managers his agents and at-
torneys irrevocable, until the terminatlom
of this sgreement, to exercise all the righta
uf the Bubscribera in and to the propertiea
proposed to be acquired." Still other pro-
visions conferred upon the manogeri wid*
discretion and powers of control. Pett-
tioser and bis assignors became subscribers
while In entire ignorance of respondent's
true position. He represented that It was
proposed to purchase only valuable and
paying properties; that subscriptions were
payable in dollars, and not In property;
that he had made a subscription for $600,-
000, payable in dollars; that the enterprise
was being organieed in good faith; that
all, according to their Interest, bad equal
ri^ta and atood on same basis; that aveij
<S=aFor ottm cases — si
8 to]>lc A KZT-NUUBER to all Ksr-Nombsrsd Disesta ft Ii
n!»w^ic
1918.
Sm *. SDEHBOKN.
n
bui'b dollmr mu pot np ig^iut everj otber
mui's doUar; And Utat there were to be no
■pecUI adTKntiLge* to aarone. In fact,
however, he alwoje intended to ntlllzc Bto«k
owned by him In payment of hit subscrip-
tion. Hie manager* chanjred the company*!
name to Sheffield Coal k Iron Company,
Shicieaaed the capital to $2,600,000, and
canaed it to acquire additional coal proper-
* tka. For eaah pUd to than (fay ayndlcate
B^beri, they delivered an equal amount
•f itoclc ioeneii by the eorpontloa. In let-
tiement of hi* Bubacription (reduced from
9600,000 to (476,000) respondent aurren-
dered the majority atoek in United Statea
Iran Company, at a valuation of 170 pw
■hara, paid balance in cash, and took new
eertiflcatea. When he solicited and obtained
■abaeripticna and received payments, he
knew snbseribers ware relying upon him
fJaithfully to act as their agent. Subse-
qnent to the ipedfied tranaactions peti-
tioner and his assignorB diteavsred re-
•pondant's interest, and thereupon promptly
daetcd to rescind their Bubaoriptions, gave
tee notiea to the managerB, offered to r6-
turn and reatwe all stock received, and de-
■landed their money.
Belying on Heckacher t. Edenbom, 203
N. T. eiO. M N. B. Ml, Uie referee re-
plied that Edenbom waa liable for amounts
paid, with interest, and final judgment
therefor waa duly entered. Hie circuit
court of appeals declined to follow the ttaU
eourt, and, being of opinion that "it Is a
eoDditioD of reocisBion that the status quo
ahall be reetored," and that do such resto-
latioB bad been offered, reversed the trial
eonrt (1£4 C. C. A. 339, 20fl Fed. S75, 277).
Tie cause la here upon writ of certiorari.
Heckscher v. Edenbom arose out of an-
other subscription to the agreement now
lzv<dved, and tiie essential facta there and
here ars aubstantlally alike. After much
eonslderation the court of appeals decided
In lavor of plaintiff, Heckscher, holding the
agreement was vitiated by fraud becauae
Edenbom (ailed to reveal his Interest in the
stock intended to be purchased, and, fur-
ther, that tender of stock actually received
was all the subscriber could do towards
Tcatoring the original position, and eonsti-
tutod an adequate preliminary to an action
for recovery. The opinion expresses that
eourt'i deliberate conclusion upon the is-
anes, and Is supported by reference to ear-
^lier decislcws of its own and other anthori-
^tiea.
■ • PetiUoner now contends that the eourt of
appeals waa correct upon principle, and,
Boreover, that if donbta exist they should
b« resolved in fsvor of its opinion. On the
other hand, reapondmt malnti^ns tlie ques-
tions Involved are of general law, and that
the state court reached an unwarranted re-
sult, not to be accepted here.
This court has many timet eonaidsred
how far Federal tribunals, when undertak-
ing to enforce lawa of the states, should
follow opinions of their courts. Thn au-
thorities were reviewed and rule announced
in Burgess v. Beligman, 107 U. S. 20, 33-
36, 27 L. ed. 3GS, 365, 306, 2 Sup. Ct. Bep.
10, which declared that, as to doctrines of
commercial law and general jurisprudence,
the former exercise their own judgment,
"but even In such cases, for the soke of
harmony and to avoid confusion, the Fed-
eral courts will lean towards an agreement
of views with the state courts, If the ques-
tion seems to them balanced with doubt."
This has been oftm reaffirmed. Wilson v.
Standefer, 184 U. B. 399, 412, 40 L. ed.
S12, 618, 22 Sup. Ct. Hep. 384; Bienville
Water Supply Co. v. Mobile, 188 U. B. 812,
220, *« L. ed. 1132, llSfi, 22 Sup. Ct. Eep.
820; Stanly County v. Coler, 190 U. S. 437,
444, 445, 47 L. ed. 1126, IISI, 1132, 23
Sup. Of. Rep. 811; Great Southern Fire
Proof Hotel Co. v. Jones, 193 U. S. 632,
647, 48 L^ ed. 778, 788, 24 Sup. Ct Rep.
576; Tampa Waterworks Co. v. Tampa, ISO
U. S. 241, 243, 244, 60 L. ed. 172-174, 28
Sup. Ct Rep. 23; Kuhn r. Fairmont Coal
Co. SIS n. S. 349, 367-Sei, 64 L. ed. 228,
233-235, 30 Sup. Ct Rep. 140; Ennis Water-
works V. Ennis, 233 U. S. 662, 657, 668, 68
L. ed. 113B-1141, 34 Sup. Ct. Bep. 767j
Moore-Man all eld Constr. Co. v. Electrical
Installation Co. 234 U. S. SIQ, 626, 68 Ii.
ed. 1603, 1506, 34 Sup. Ct. Rep. 941; LaJik-
ford V. Platte Iron Works Co. 236 V. S.
4S1, 474, 69 L. ed. 316. 320, 35 Sup. Ct
Rep. 173.
The conclusions of the court of appeals
In Heckseher's Case are not io direct con-
flict with any declared views of this court
and some ezpreseions in our former opin-
ions tend to support them. Veazie t. Wil-
liams, 8 How. 134, 153, 12 L. ed. 1018,
1028; Andrews v. Henaler, S Wall. 254,
268, 18 L. ed. 737, 739; Neblett *. Macrtir-
land. 92 U. S. 101, 103-105, 23 L. ed. 471-
473.
Through misleading repreaentations and
suppression of facta, respondent Induced
syndicate subscribers to become parties to
an agreement creating him their agent to^
acquire and deal with certain properUes, — m
a position "ol especial trust and confidence.*
His original undisclosed purpose was to
obtain their money and appropriate ft
toward purchase of something partly owned
by himself. Having led them to intrust
their funds to his discretion, he carried out
hla preconceived plan, and, aa a part of It
,A_.OOglC
38
ST SUPREME COURT REPORTER.
Oct. Ttuf,
caused them to receive an equivalent amoant
□f corporate stock. Be now MekB to avoid
a judgment, because hit own acticma have
rendered it imposaible tor him to get back
to tbe beginnlDg point.
This wsa not a proceeding in equity ad-
dressed to the court's discretion, but a de-
mand at law upon an agent for return of
aometbing improperly received and disposed
of. Hie defrauded principals tendered back
everything received by them, — did all they
could towards restoring original conditions.
In such circumstances it is but just and
right that any loss should (all on the un-
faithful agent, not on hia too-confidiug
principaia. See Snow v. Alley, 144 Maas.
S46, S51, 59 Am, Rep. IID, 11 N. E. 764;
O'Shea V. Vaughn, £01 Mas*. 412, 87 N. £.
016: Bigelow, Fr. 430, 431; Wbart Contr.
I 28S.
We think, in Heckscber v. Edenborn, the
Court of Appeals reached a result well sup-
ported both by reason and upon authority,
and that the courts below should have fol-
lowed It when undertaking to determine
righta depending upon the laws of Xew
York. The action of the Circuit Court of
Appeals Is accordingly reveraed; and the
Judgment of the trial court is affirmed.
Reversed,
Mr. Justice HcKcnns. Mr. Jnitioe Day,
and Hr. Juatlce Tan Devanter dissent,
being of opinion that the questions Involved
ars of gensral, not local, law; that there
has not been such restoration of thu status
quo aa is essential to a recovery at law up-
on a resoiesion; and that, upon the facts
specially found by the Teferes, the decision
of tha Circuit Court of Appeals was right.
WILLIAM EDENBORK.
'\N WSrr of CerUorari to the United
' States Circuit Court of Appeals for the
Second Cireuit to review a judgment which
reversed a judgment of the District Court
for the Eastern District of New York In
favor of plaintiff in a suit to reiaind a con-
tract for fraud, and to recover paymenta
made thereunder, Revened; Judgment of
trial court afltrmad.
O^s
See tame caaa below, 1E4 C. C. A. 83»,
206 Fed. STC.
Mr. Theron G. Strang for petitioner.
Mesars. Joseph W. Batiey, Martin W.
Littleton, and Owen H. Brown for respond-
Hr. Justice McReynoIda delivered Um*
opinion of the court:
Tliis cause it similar In all essential re-
specta to Sim v, Edenborn, juat decided
[242 U. S. 131, 01 L. ed, li(U, 37 Sup. Ct.
Bep. 3C1. Accordingly, the Circuit Court of
Appeals' Bctiou is reversed, and the judg-
ment (rf the trial court is affirmed.
Reversed.
FREDERrCK W. KAVANAUGH.
rART.NKHSfilP ^=153(1)— In UIVIDUAl. R*-
aPONsrBiLiTT FOB S'ibm'b Tout.
1. Partners are individually responal-
ble for torts by the Arm when acting with*
in the general scope of Its business, whether
they peraonally participate therein or not.
[Ed. NotB.— For other c&ses. aee Pftrtaenlilp,
Crnt, Dig. {f 2T1. 176. 177: Dec. Dlj. «=lMtt».]
KsKKHniTCT 18=424 — Eitict at Dis-
UIIABOE—Ld ABILITY FOB CONVEBSIOH —
"WlLKUL AXU AlAUClOUB INJUBY TO
Pbopebty."
2. Tbe unauthorized eale by a Arm of
brokers of certiflcates of stock held t^ them
as collateral, and the appropriation of IJie
avails to their own use, without the tcnowl-
ed^ of the owner, is a wilful and malidona
injury to prt^erty within the meaning of
the proviaion of U)« Bankrupt Act of July
1, 1898 (30 SUt, at L. 660, chap. 641),
SUt 1S13, S S601), that a discharge I.
bankrupts ^all not release tbe bankrupt
fron liability for wilful and malicioue ut-
juries to the person or property of anoOier.
[Ed. NoM.— Kor olbsr caaas, M* Bankniptev,
Cent. Dig. fi 7S1, SIS: Dec. Dig. rftzstM.
ITDr otEar deanilloni. »« Words sod Pbruia,
nt aad Sscoud SarlM, WIllul and UaUalaua
Jurj-.l
[No. 88.1
Argued November 10, 1910. Decided Da-
oember 4, 1916.
IN ERROR to the Supreme Court of the
State of New York in and for tbe Conn*
ty of Saratoga, mtered pursuant to the
mandate of the Court of Appeals of that
state, which affirmed a Judgment ol tk*
Appellate Division of the Supreme Court,
Third Department, affirming a judgment o(
tha Trial Term of the Supreme Court ta
favor of plaintiff In aa action against a
dlschti^ed bankrupt to reoover damages for
eonversion. AJDrmed.
See same caae below. In appellate division.
4s)For other CI
le topic * KBT-NUUBBR In all K«r-Namb«rad Dliwts ft Indaxei
.A^iOOglC
1018.
UcINTTRB r. EAVANAUOE.
IH App. IHt. 910. 135 N. T. Supp. 1120:
In Murt of app«^, XIO H. T, 170. 104 H.
E. las.
The fMts tn ttteUA tn tba opinioti.
Hr. Robert H, Patton for pUintift in
Ur. JvctlM HoRernolds deliTsred the
opinion of the oourti
Plaintiff In error wsa a member of T. A.
Meln^re 4 Companj, engaged in buaineee
aa broken. During Februarj, 1908, the
partnerehlp received certain atock certifl-
eatea owned bj defendant in error, and un-
dertook to hold them aa eecnrity for hie
indebtedneaa, amoontlng to teas than one
aixth of their market value. Within a few
cwedce, without authority and without hii
^knowledge, thej aold the etocke and appro-
* priated the availa to their*owiL uee. Short-
Ij thereafter both On> wad ita members
were ailjudged bankrupta. After hie die-
charge in bankruptcy this eult waa ineti-
tntad agalnat plaintiff In error, seeking
damages for the wrongful converEion. He
act up bit djaebarge and also personal igno-
ranco of and non participation In any tor>
tioua act.
Tha trial court held the liability was
for wilful and mallcioua Injury to property
and ^preealy excluded from releaae by j
IT (2), Bankruptcy Act, aa amended in
1M3 (32 SUt. at Tj. 708, chap. 4S7, Comp.
SUL 1013, I 0601), and that the several
partners were liable. A judgment for dam-
agM was af&rmed by appellate dlTlsIen (151
App. Dl*. 010, 13S N. Y. Supp. 1120) Bn<>
oourt of appeaU (210 N. Y. 176, 104 N. E.
135).
That partnera are individually reeponel-
ble for torta by a firm wlien acting within
the general scope of ita business, whether
tbey personally partldpat* therein or not,
we regard as entirely elear. Castle t. Bal-
lard, 23 How, 172, 16 L. ed. 424; Re Peck,
200 N. Y. 60, 41 LJIJL(N.S.) 1223, S9 N.
K. 258, Ann. Caa. 1014A, 788. If, under the
drcumstancea here presented, the firm In-
flicted a wilful and malicious injury to
property, of course, plaintiff In error in-
enrred liability lor that character of wrong.
Aa originally enacted, f 17 of the Bank-
ruptcy Act provided:
"A diicharge In bankruptcy ehall release
a bankrupt from all of bis provable debts,
except sneh aa . . . (2) are judgments
In actions for frauds, or obtaining property
by falae pretenses or false representations,
•r for wilful and malldona injuries to the
person or property of another; ... (4)
ware ereated by bis fraud, embemlement,
misappropriation, or defalcation while act-
ing as an officer or In any fiduciary capac-
ity." [30 Btat. at L. S60, chap. 641, Comp.
Stat. 1013, I B6D1.]
Thla waa amended by Act Tebruary 6,
1003, so as to read:
"A discharge in bankruptcy shall release
a bankrupt from all of bis provable debta,
except such aa . . . (2) are liabilities
for obtaining property by false pretensea^
or false representations, or for wilful and]*
malicious injuries'to the person or prop-*
er^ of anoUker, or for alimony due or t«
become due, or for maintenance or support
of wife or c^ild, or for eeduction of an
unmarried female, or for criminal conver-
sation; . . , or (4) were created by his
fraud, embeKzIcment, misappropriation, or
defalcation while acting as an ofQcer or In
any fiduciary capacity." [32 SUt. at h. T08,
chap. 487, Comp. Stat. 1913, | 9601.]
The trial court found —
That on February 5, 1B08, UcTotyre A
Company by agreement obtained podseaaion
of Kavanaug^'s stocks, worth approximate-
ly $25,000, and held them aa security for
bis indebtedness, amounting to (3,353.32.
"Ibat almost Immediately after taking
over aaid stocks by certificataa as aforesaid
by the said firm of T. A. Uclntyre ft Com-
pany, composed aa aforesaid, and com-
mencing on the very next day, said firm of
T. A. Uclntyre A Company (the above-
named defendanta being membera thereof] ,
without any notice to the plaintiff, and
without his authority, knowledge, or con-
sent, or demand of any kind upon blm, sold
and diaposed of the identical certificates of
such stock and scrip ao turned over to them
as aforeeaid, and placed the evaila thereof
in the bank account of said firm of T. A.
Mclntyte k Company to the credit of aaid
"That the various stocks aforesaid had
all been disposed of prior to the IBth day
of Uarch, 1003, and that three quarters In
value thereof had been disposed of on or
prior to February 14th, 1008, or within
nine days after the acquisition of the poa>
session thereof by defendant's firm aa afore-
said.
"miat tha aboTO-named defendants, to-
gether with tlie other members of the said
firm of T. A. Hclntyre & Company, in dis-
posing of said stocks aforesaid, without
notice to or demand upon the plaintiff, and
without his authority, knowledge, or con-
sent, and In depositing the proceede and
avails thereof in the bank account to the
credit of said firm of T. A. Hclntyre k
Company, eonmitted wiUal and matldoDSH
I Injury to the property of the plaintiff. J
I* rChat on AprU 23, 1908, the said firm*
A^iOOglC
ST SUFBEUE COURT BEFOBTEB.
Oct. Vom, '
of T. A. Melutyra t Compui; filed « peti-
tion In bankruptcj in the United Staitee
district court for the eouthern district of
New York, ftnd were ftfterw^rda adjudi-
cated bmnkrupte.
"That thereafter the pUJntiff in this ac-
tion proved hie claim againet the bankrupt
estate without waiving an; legal right*
In this action or otherwise."
To deprive another of hie piQfertj for-
ever by dellberatelj disposing of it without
eemblance of authority ia certainly an in-
jury thereto within common acceptation of
tiie words. Bouvier'i Law Diet, "Injury."
And tbie we understand is not aontroverted;
but the argument ia that an ezaminatioD
of OUT Hveral Bankruptcy Acta and consid-
eration of purpose and history of the 1S03
amendment wUl show Congreai never intend-
ed the worda in question to include con-
veriion. We can find no lUfficUnt reason
(or such a narrow consbmatlan. And In-
stead of subserving the fundamental pur-
poses of the statute. It would rather tend
to bring about unfortunate if not irrational
results. Why, for example, should a bank-
rupt who had stolen m watch escape pay-
ment of damages, but remain obligated for
one maliciously broken! To exclude from
discharge the liability arising from such
transBctlons aa those involved In Crawford
V. Burke, IOC U. S. 178, 4S L. ed. I4T, £6
Sup. CL Rep. B, and here presented, not
Improbably was a special purpose of the
amendment.
In Tinker r. Colwell, 193 U. S. 4TS, 486,
487, 48 L. ed. 764, 7S9, 760, 24 Sup. Ct
Bep. SOS, we said of original 1 17 (2) ! "In
order to come within that meaning aa a
judgment for a wilful and malicious injury
to person or property, it Is not necessary
that the cause of action be based upon
special malice, so that without It the action
could not be maintained." And further: "A
wilful disregard of what one knows to be
his duty, an act which la against good
morals and wrongful Id and of Itself, and
MWhich necessarily causea injury and la done
— intentionally, may be said to be done wilful-
* ly and maliciously, so aa to'come within
the exception. It ts urged that the malice
referred to In the exception ta malice
towards the individual personally, such aa
la meant, for instaoce, In a statute for ma-
liciously injuring or destroying property,
or for malicious mischief, where mere in-
tentional injury without special malice
towards the Individual has been held by
some courts not to be lufficlent. C<Hn. t.
Willtanu, 110 Mass. 401. We are not In-
clined to place such a narrow construction
upon the Isnguage of the exception. We do
not think the language used was Intended
to limit the exception Is any audi way.
It was an honest debtor, and not a maliclona
wrongdoer, that was to be discharged."
The circumatanres disclosed euifice to show
a wilful and malicious injury to proper^
for which plsintiff in error became and re-
mains liable to respond in damagea. Iha
judgment below la affirmed.
(Ml U. B. 142)
CHESAPEAKE t OHIO RAILWAY OOM-
PANY, Plff. in Err,
L. P. MeLAUOHLIN.
Oarbiebs «3218(10>— Nonci or Oi-ani—
Excuse rOK Konooupuahck.
Failure to comply with the stipulatlo*
In a "uniform llve-stock contract under
which an interstate shipment was made,
that no claim for damages which may ao-
erue to the shipper under such contract
shall be allowed or paid by the carrier, or
sued for in any court by the shipper, un-
less claim for such loaa or damage shall ba
made in writing, verified by the affidavit
of the shipper or hie agent, and delivered
to the carrier's gmerol claim agent, defeats
anv reoovery from the carrier because of
Injury to the shipment, where there are no
circumstanoes rendering such stipulatioa
invalid o: ' "
: Deo. Die. 4
IN ERROB to the Clronit Court of Poc»>
hontaa County In the sUte of West Vir-
ginia to review a judgment againat « carrier
for injuries to an interstate live-atodc ahip-
ment. Rerersed and remanded for further
proceedings.
Tlte facta are stated In the opinlcn.
Measra. F. B. Enslow and Herbert Flt^
Patrick for plaintiff In error.
No appeanuee for d«f andsat In error. -
* Ur. Justice MoKejnolda dalivend tlia*
opinion of the eourti
McLaughlin recovered judgment against
tbs railway company In the circuit court,
Pocahontas county. West Virginia, for in-
juries to a horse which It transported fron
Lexington, Kentucky, and delivered to him
at Seebeit, West Virginia, February 17,
iai4.
The shipment waa vndv a *HmIfonn llf*-
atock contract" signed fay boUt parUes and
introduced In «Tidane* by defendant ia
error, which, among otha things, provides:
"That no claim for damage* whl^ w»j
accrue to the said shipper under thia etn-
n le* wma topic ft KBT-NtlllBBR la all Ker-Nnmbarad Dlgsats * ISdeiM
Digtiz^-^doy V_-iOTTQIC
101«.
OEEAT NORTHERN R. CO. t. CAPITAL TRUST COMPANY.
41
tract •hall be allowed or paid by the uid
carrier or nied for in any court by the said
shipper, nnlew claim for such lou or dam-
age shall be made In wriUng, TeriBed by
the affidavit of the aaid ahipper or his agect
and delivered to the general claim agent of
the said carrier at hia offlee In Richmond,
Virginia, within five day* from the time
•aid stock ia rcmoTcd from aaid car or
earv; and that If any loai or damages occur
upon the line of a eiHinectIng carrier then
•uch earrier •hall not be liable unleas a
claim ahall be made in lUce manner and
delivered in like time to aome proper officer
or agent of tha carrier on whoae line the
loss or injury oeeurg."
It conclusively appears that McLanghlln
did not present a verified claim to the car-
rier's agent as provided by the contract
Upon Its face the agreement seems to be
^unobjectionable, and nothing in the record
Jtends to establish circumstances rendering
" it invalid, or excuse tailure^to comply there-
with. The court below erred In denying a
seasonable request for a directed verdict;
and it* judgment must be reversed. Onr
recent opinions render unnecessary any fur-
ther diseuuion of the reasons for this con-
elnsiou. Northern P. R. Co. t. Wall, 241
U. 8. B7, 60 L. ed. 905, 30 Sup. Ct Rep.
493; Georgia, F. & A. R. Co. v. Blish Mill.
Co. 241 U. S. 190, 60 L. ed. 948, 36 Snp.
Ct Rep. B41; Cincinnati, N. O. * T. P.
R. Co. V. Rankin, 241 U. S. 319, 00 L. ed.
1022, L.R.A. iei7A, 205. 86 Sup. Ct Hep.
US.
Raverae and remand for further procaed-
Inga not inconristent with this opinion.
CAPITAL TRUST COMPANY, as Adminis-
trator of tha EsUte of William M. Ward,
Death C=>10— Dauaoes—Urdes Federal
Emplotebb' Liability Act — Conbcioub
ScFFEBiKO or Deceased.
I. The faet that a railway employee,
though wholly unconscious, continued to
breathe for perha^ ten minutea after re-
ceiving a fatal Injury, afTords no basis for
an estimation or award of damages in addi-
tion to the beneflciary's pecuniary lou, un-
der the Act of ApHl S, 1910 [36 Stat, at
L. E91, chap. 143, Comp. Stat 1913, %
8602), amenatng the Employers' Liability
Act of AprU 2S, leOS (3G Stat at L. OS,
ehap. 149), by providing that any r^ht of
action glTen by that act to the person Buf-
fering Sijury shall survive to the personal
r^rescntative tor the benefit of the same
beneficiaries in whose behalf the right of
action created by the original act is given,
but that there shall be only one recovery
for the same injury.
[Hd. Nota.— For other cbhb, sm DMth, Deo.
dU. ca=>10.]
Death ^=82 — Dakaoes— Crdeb Fedbeal
EKPLOTEBS' LtABILITT ACT — PXBSONAI.
Loss AND Conscious SuiTEBino.
2. Damages recoverable under the Aet
of April S, 1910 [30 Stat at L. 291, eh^.
143, Comp. Stat 1913, | 6662), amending
the Employers' Liability Act of April 22,
1S08 (36 Stat at L. 06, chap. 149), by pro-
viding that any right of action given by
that act to the person suffering Injury shall
survive to the personal representative for
the benefit of the same beneficiaries in whose
behalf the right of action created by the
original act is given, but that there ahall
be only one recovery for the same injury,
should be confined to the personal loss and
suffering of the Injured employee during the
time intervening between the injury and
the resulting death.
[Sd, Not«.~For oUiar oara, ••• Oeatti, Cent
Cfs. I IMl Dec. DIK. OsskU.]
[No. lOT.]
IN ERROR to the Supreme Court of tha
State of Minnesota to review a judg-
ment which affirmed a judgment of the
District Court of Ramsey County, in that
state, in favor of plaintiff In an aetlon un-
der the Federal Employers' Liability Act
Reversed and remanded for further pro-
ceedings.
See same caae below on appeal from order
denying alternative for judgment or n«w
trial, 127 Minn. 144, L.E.A.— , — , 14B N.
W. 14, 7 N. C. C. A. 164; mi appeal from
judgment 128 Minn. S3T, IfiO N. W. 1102.
The facts are stated in the opinion.
Messrs. A. li. Janes and H. L. Country-
man for plaintiff in error.
Mr. Ssmuol A. Anderson for defendant
* Mr. Justice McR«ynoIdB delivered the*
opinioQ of the court:
While employed by the railway company
as a switchman, William M. Ward wa« ac-
cidenUlly Icilled, December 13, 1912; and
the administrator brought suit In a stats
court under the Federal Employers' Liabil-
ity Act as amended, for the benefit of hia
father and mother, seeking to recover their
pecuniary loss and also damages for the
injuries suffered by him prior to death.
Some evidence tended to show that, after
being run over by one or more cara, al-
though wholly unconscious, the deceased
continued to breathe for perhaps ten mln-
■ ■•• suae tepic * KBY-KUUBER In all Ker-Numbned DiEeats * Indues -^ -^ -. 1 -,
42
87 SUPRBMB COURT REPORTEB.
Got. Tom,
utee. Testimony of other witneaseB nip-
ported » clBim that there waa no apprecia-
ble continuaUon of life. Judgment upon
an un apportioned Terdiet, in (a*or of the
admin fstiutoT, waa affirmed by tbe atate
anpreme court, October, 1S14. Hie railnay
CMnpany duly excepted t« the following
portiona of the charge:
"Did Ward's Injurlea kill him instantlyT
If he ma killed instantly, one rule of dam-
^es applies, while if be lived aome time
after he was injured, another rule of dam-
agfs would apply. There ia aome eTidence
that he lived a few minutea after receiving
^hla injuries; there la other evidence tliat
■ he was dead when taken out from*under
the car. If you ahould find tli»t Ward died
from hia Injuries wltliout living an ap-
preciable length of time, then the plaintilf
oontd only recover, if at ail, what would
have been the pecuniary value of Ward's
life to his father and mother had he lived.
. . ■ And in that connection it would tte
proper for you to coneider hia health, hta
disposition to contribute to tlie support ol
his parents, the evidence of what be custom-
arily earned, hia earning capacity, the
•mount he was in the liabit of giving to hia
parenta, bis age, his condition in life, the
length of time tie probably would have lived
had not this accident happened, and the ex-
pectancy of the life of the father and moth-
er, and the reasonable expectancy of the
parents in respect to benefita, if any, from
the services o{ their son; . . .
"In caae you find that Ward did not die
inatantly from his injuries, but that he
lived some appreciable length of time after
the accident, then you would oome to an-
other question In the ease.
"Under the law of the United SUtes it
la provided that any right of action given
by the act of Cougreaa in reference to In-
juries of thie kind under aueh drcunutances,
that the right of action shall survive to the
personal representatives of the deceased for
the benefit of his parents, if there la no
surviving widow and children. And if yon
should find from the evidence that Ward
did not die instantly from his Injuries, but
that he lived some little time after he waa
injured, then, under the law, the plaintiff
would be entitled to recover damagea in the
same amount that Ward, the deceased, would
have been entitled to recover had he brought
the action in his lifetime, ^at la, yoa
can award auch damages as, in your judg-
ment, would be a full, fair, and reasonable
compensation for the loss sustained by
Ward, the deceased, by reason of the in-
Juries he received. . . . And hi that
« eannectlon, it would be proper for you
• consider his age, his habitsMf Indusby, hia
health, his ability to woric, his earning capav-
ity, and the amount he usually earned at
the time he was injured, and tbe length of
time he would probably have lived bad be
not been injured, using your best judgment
under all tbe circumBtances in arriving at
what would be ■ fair compensation for Ui*
In St. Louis. I. M. ft S. R. Co. v. Croft,
237 U. S. MS, 855, 658, 68 L. ed. IlflO. 1162,
11S3, 35 Sup. Ct. Rep. 704, 0 N. C. C. A. 754
(June 1, iei5) we held that, under the
Employers' Liability Act, as amended in
1910, SO SUt. at L. 291, chap. 143, Comp.
Stat. 1S13, g 8S62, the administrator of a
fatally injured employee might recover the
beneficiary's pecuniary loss and also for
pain and suffering endured by deceased be-
tween the moment of injury and final dia-
Bolution. We were eareful, however, to say —
(656) "But to avoid any miaapprehenaion
It is weU to observe that the caae is close
to the border line, for auch pain and auf-
fering as are aubstantially contemponuieoua
with death or mere incidents to it, as also
the short periods of inaensibili^ which
sometimes intervene between fatal injuriea
and death, afford no basia for a separata
estimation or award of damages under
statutes like that which is controlling here."
And, referring to iba two separate grounds
of recovery — (068) "Although originating
in the same wrongful act or neglect, tbe
two claims are quit* distinct, no part of
either being embraced In the other. One ia
(or the wrong to the injumd person, and is
confined to hla peramal loss and suffering
before he died, while the other is for tlia
wrong to the boiefldaries, and is confined
to their pecuniary loas throu^ bis death.
One begina where the other ends, and a re-
covery upon both in tna same action is not
a double reoovery for a single wrong, but
a singls reeovery for a double wrong."
The present record presents the very cir-
cumstances which we declared afforded no
basis for an estimation or award of dam-
ages in addition to tbe benefidaiy's pecunl*
ary loss. And although apparently not_
challenged in the state supreme court, and^
therefore not now to be*>elied on as ground*
for reversal (Harding v. niinols, 1B6 U. B.
78, 87, SB, 49 li. ed. 394, 397, 398, 20 Sup.
CL Rep. 176), In view of a possible new
trial, it seems 'proper to point out that the
method approved by the trial court for eeU-
mating damagea where the deceased's cause
of action does survive conflicts with the
rule sanctioned by us in the Craft Case.
Tht judgment tielow is reversed and the
cause remanded tor further proceedings not
Incmisistent with this opinion.
Reversed.
,A_^oogle
!(>]«. NEW YORK C. 4 H. B. R. CO. t. BEAHAM, U
nay, a. iw
NKW TOSK CENTRAL ft HUDSON \ Messrs. Albert S. Blarler. John S. Mar-
RIVER RAILROAD COMPANY, PUT. in I ley, and Robert J. Gary for plaintiff in er-
UABY EDNA BEAEAM.
Car DIE Bs $=397H— MsAHtiRE or Riqhts
A>D Ll&BIUTIK»— INTEBSTATK BAaOAOE.
1. Tie rigliU and lUbllltiei of an InUr-
Btate paafenger and tha carrier in caie of
a loaa of baggage dep«&d npoD Federal legia-
latioD, tbe agreunent between the partieo,
and coinmoo-law principles, aa accepted and
enforced in Federal tribunals.
[Bd. Sota.—VoT othar casta, tea Carriers,
C*ni. n[B. gi ifilB-lBM: Dec. D)«. 4=>mH.]
EVIDERCE ^3fl&— PREsmPTion — Cabsi-
■e'b Coupliamck with Law.
2. An intcTBtata railway carrier !■ en-
titled to the presumption that U ia con-
ducting ita business lawfully.
[Ed. NpLe.— For other cases, SM ETMence,
Cent. Dig. I W: Dec Dig. «=>«.]
Cahriers ^b405(3), 40S(4> ~ Evidence—
S urnciEN CI— Limit ATioH or Oarbieb's
LiABiLiTT— Loss or Baooaqb.
3. Acceptance and use by an Interstate
pasaenger of a railway ticket which pur-
Sorted to limit baggage liability to a apeci-
ed sum onteas a greater value should be
declared and excess charges paid suffice to
eatabllah an agreement prima facie Valid,
limiting the carrier's liability in this re-
■pect, and the mere failure of the passenger
to read tha tlcltet could not overcome tha
presumption of assent.
[Ed. Note.— For alhar cams, «e Csrrlsrs,
Cent. DIK. 11 IMS. IMS, iSH-lXl; Dec. Dl|. «=»
406(11. «9(4).]
AfFEAI. AKD EKBOB «=S37<llh-EBROB TO
Statx Court — Dcrui. or FenERAi.
Rioar — Interstate Cabbieb's Luhta-
TiON OP BAoaAGB Liability.
4. lusufBclencT or defective certiflca-
tion of a carrier's applicable tariff scliednlea
on file with tbe Inta'stata Commerce Com-
mission, which were admitted In evidence
by the trial ooart, eonid not justify a state
appellate court in arbitrarily disregarding
Buch schedules when passing upon the ques-
tion whether or not the carrier Ikad limited
Its 1 lability for the baggage of an inter-
■tatfl passenger to a specified sum unless
a greater value is declared and azcesa
charges paid.
[WL Mote.— ror oUwr osHs. see Appsal and
Bmr, Csnt Vlg. II Uli, 1Z7T : Dk. D1|. «»
•ncu).]
[No. 118.]
IN ERROR to the Kansas City Court of Ap-
peals of the SUte of Missouri to review
a judgment afErming a judgment of the Cir-
cuit Court of Jackson County, in that state,
for tiie recovery from a carrier of the full
value of lost interstate 1>aggt>ge, notwith-
standing a limitation of such liability in
the ticket and in the carrier's published
tariffs to the declared value. Reversed and
remanded for further proceeding^
The (acta are stated in the opinion.
* Mr. Justice McReynolda delivered the*
opinion of the court:
At ita New Vorli city station, in Sep(<-in-
ber, 1910, Miss Beaham purchased of pUiu-
tiff in error a first-claes ticket over its own
and connecting lineo, on tlie (ace of which
itaa printed 1 "Issued by tbe New York
Central It Hudson Biver Railroad. Good
for one passage of tiie class indicated on
coupons attached to Kansas City, Missouri,
when stamped and sold by an agent holding
written authority as prescrit)ed by law,
and presented with ooupoDs attached- Sub-
ject to the following contract: ... 6.
Baggage liability is limited to wearing ap-
parel not to exceed one hundred (100) dol-
lars in value (or a whole ticket and fifty
(60) dollars for a hsif ticket unless a
greater value is declared by the owner, and
excess charge thereoD paid at the time ofa
taking passage." h
• Immediately after purchasing the ticket*
she presented it at the baggage department;
bar trunk was received for transportation;
and she accepted a check or receipt there-
for upon which were the words: "Sea con-
ditions on tiack. Value not stated." On
tlie back this was printed: "Notice to
passengera. Baggage consists of a passeo-
ger's personal wearing apparel and liability
is limited to (ICO (except a greater or less
amount is provided in tariffs) on full (are
ticket, unless a greater value is declared by
owner at time of checking and payment ia
made therefor."
The trunk and contents having been lost,
she sued plaintiff In error for their full
value In the circuit court, Jackson county,
Missouri. Admitting responsibility for
1100, the company claimed exemption from
any larger recovery because of limitations
speeifled in tha ticket and impliedly as-
sented to when it was sccepted and used;
and also becsuse of the same limitations
embodied in its tariff schedules filed with
the Interstate Commerce Commission.
A jury being waived, the cause was tried
by the court. Acceptance and use of both
ticket and check were shown, and nothing
in the evidence indicated any purpose to
deceive or mislead the purchaser, or in-
ability on her part to appreciate the pro-
viaions in question; she disclaimed having
read them, and denied their validity under
general princlplea of law. Counsel for t)ie
raUroad offered In evidence copies of its
tariff schedules on file with tike Interstate
!• topic * KBT-tnnfBBR Id all Ksr-Numbsred DlKwts tc ladi
"^OOglC
M
S7 SUPBEME COUBI REPORTEB.
Commeres CommlBaioii, certified bjr tli«
chairman of that bodj. TheM eontaiued
elauBM limiting liabililj for baggago to
(100 onleBB greater value was decl&red
and paid for; and Qivj were admitted not-
withatanding an (rbjection to mode of their
authentication.
^ The circuit court held no agreement llmit-
« Ing liability resulted from acceptance and
• DM of ticket and check,*«jid that, "cTen
if the local and interstate tariffs of excess
baggage ratea introduced in evidence were
Sled with the Interstate Commerce Conun!
aion of the United Statea, and properly
posted as required bj the Interstate Com-
merce Act, still plaintiff would be entitled
to recover the reasonable value of her trunk
and the reasonable value of the articles of
baggage contained therein, unless she
pressly assented to tbe provisions of said
tariffs limiting the liability of the defend-
ant to tlOO for loss of baggage unless a
greater value should be declared and paid
for." A judgment for $1,771.62 was affirmed
by tbe Kansas City court of appeals. It
held thst Boston & M. R. Co. v. Hooksr, 233
U. S. S7, 68 L. ed. SOS, L.R.A.1S16B, 450,
34 Sup. Ct. Bep. 620, Ann. Gas. 191ED,
663, would necessitate a reversal but tor
the fact that the record eontained no i
petent evidence to show a schedule on file
with the Commissioa specifying liability
for baggage; "the Federal itatut« provides
that copies of tariff ratea on file with that
Comraisaion shall be received in evidence,
if certiGed by tbe secretary, under the seal
of the Commission," and certification by
the chairman ia insufficient. It therefore
wholly disregarded the copies In the record
and treated tbe cause as tbou{^ they had
not been introduced.
The transactions tn question related to
interstate commerce ; consequent rights snd
liabilities depend upon acta of Congress,
agreement between the parties, and common-
law principles accepted and enforced in
Federal courts. And tbe carrier is entitled
to the presumption that Ita business la be-
ing conducted lawfully. Southern Exp. Co.
Y. Byera, 240 U. S. BIZ, 614, 60 L. ed. 825,
827, L.R.A.1B17A, 1B7, 36 Sup. Ct, Rep. 410;
Cincinnati, N. 0. ft T. P. R. Co. v. Rankin,
241 D. S. 319, 32S, 80 L. ed. 1022, 1026,
LJLA.1917A, 265, 36 Sup. Ct Rep. E56.
In the circumstances disclosed, accept-
ance and use of the ticket sufficed to estab-
lish an agreement prima facie valid which
f, limited the carrier's liability. Here failure
'^'bj the passenger to read matter plainly
* placed before her'could not overcome tbe
presumption of assent New York C. A H.
B. R. Co. V. Fraloff, 100 U. S. 24, 27, 26
U ed. 631, 633; The Kensington, 183 D. S.
263, 46 L. ed. 190, 2£ Sup. Ct Bep. 102;
Fonaeca v. Cunard 8. S. Co. 163 Masa. 66S,
12 L.R^ 340, 26 Am. St Bep. 660, 27 N. S.
666.
lo order to determine the liability as-
sumed for baggage It was proper to consider
applicable tariff schedules on flle with the
Interstate Commerce Commission; and the
carrier had a Federal right not only to a
fair opportunity to put these In evidence,
but also that, when before tbe court, they
should be given due owsideration. South-
ern Exp. Co. V. Bjers, 240 U. a S14, 60
L. ed. 627, L.B^1D17A. 107. 8« S)q>. Ct
Rep. 410; Kansaa City Southern R. Co. v.
Jones, 241 U. S. IBl, 60 L. ed. 943, 36 Sup.
Ct Rep. 613. After their admission in evi-
dence by the trial court the achedulea could
not be disregarded arbitrarily without deny-
ing the railroad's Federal right; and wa
think they were so treated by the eourt of
appeals. We are cited to no dedaion of
the supreme eourt of Missouri recognizing
any settled rule of practioa there which
required such action, and the unjust con-
sequencea of it are apparenti Assuming,
without deciding, tbe correctness of its
opinion that the scbedulea ae oertlfled were
inadmissible and improperly received, never-
theless the eourt should not have destroyed
the carrier's opportunity to protect itself
by introducing other evidence upon a new
trial.
Reverse snd remand for further proceed-
ings not inconsistent with this opinion.
Mr. Justice Pitney dlsstnt^
CEABLES n. EAM8A7.
CouBTS <^=>385(4)— Appeai. — Fnoii Dis-
iBicT CouBT— JuBienicnow Below.
1. The jurisdiction of a Federal dis-
trict court as a Federal Court ia ao involved
as to sustain a direct writ of error from the
Federal Supreme Court under the Judicial
Code, I 238, Act March 8. 1911, a 231, S«
Stat 1157 (Comp. St. 1913, f 1215) in an
order quasblnE s sununoQE issued out of that
court, directed to a nonresident, because it
y/BB served while he wss returning from the
court room after testifying In a cose in
which be was a partr plaintiff.
[Ed. Nole.— For other caset. see CouiH, CenL
Drg. (J losa, loai: Dec. Dig. «cs.3g6|*)r ArpeU
■Dd Error, Gent DIs. | 1301]
2. Suitors, as well as witnesses, coming
from another state or jurisdiction, are ex-
empt from the service of civil process while
■• topic * KBT-NVHBBR In all Kw-NQmb«^ DIseats ft IndsMi
STGWABT ▼. RAUSAT.
t II 148. lU; Dm. DI|. «»
[No. lOS.]
IN BBROR to the DUtrict Oonrt of tha
United SUiei for the Northsni Dis-
trict of niinoia to Teriaw ui order qnaahing
M. cammona beesiusa terved on u, nonreBideni
while be was ratiunlDg from the court room
Alter teetifjiiig In & caw in which he was a
p^rtj. AlBnned.
The facte are iteted in the opinion.
Hr. Robert O. Fvrpis for plajntiff In
«rror.
Hr. Clarence 6. D*rrow for defendant
Hr. Jtutiee Pltii«7 delivered the opinion
of tha court:
Bt«wart brought an action at law againet
Bamaay in the United Statu dletrict court
for the northern dletrict of Illinois, and
the fumnuma was served peraoa&llj upon
defendant in that district. The jurUdic-
tloD was invoiced on the ground that plain-
tiff waa a citizen of Illinois and a resident
«f the northern district, and defendant waa
■ citizen and resident of Colorado. Kam-
■ay pleaded in abatement that he waa a
nafdent of the state of Colorado and was
•erved with process while In attendance
upon the district court aa a witneaa in a
case wherein he waa plaintiff and one An-
derson defendant, and that the procesa was
served white he was returning from the
eourtroom after testifying. Upon plain-
tiff's demurrer thie plea waa ansteined, and,
(^plaintiff electing to stand upon hie demur-
JJrer, it was ordered that the writ be quashed
■ and'the defendant go without day. The
present writ of error was sued out under
I 838, Judicial Code [39 Stet. at L. 11G7,
«h*p. 231, Comp. Stat 1013, | 121G], the
Jurisdictional qucBtion being certified.
That a direct writ of error ties in such
m, case is well settled. Q. & C. Merrlam Co.
*. Saalfleld, 241 U. 8. 22, 26, 00 L. ed.
848, 36 Sup. Ct. Rep. 477.
In our opinion, the decision of the district
«onrt waa correct. The true rule, well
founded In reason and sustained by the
greater weight of authority, is that suitora,
as well as witnesses, coming from snother
■tate or jurisdiction, are exempt from the
■orvlce of civil process while in attendance
upon conrt, and during a reaaonable time
In coming and going. A leading authority
fat the itKto courts la Halafj t. Stewart, 4
M. J, L. SSS, decided In th* New JerK^
supreme eoort nearly one hundred years ago,
upon the following reasoning: "Conrte of
Justice ought everywhere to be open, acoea-
ilhle, free from interruption, and to east
a perfect protection around every man who
necessarily approaches them. The citUen
in every claim ol right which he axhibite,
and every defense which he ia obliged to
make, should be permitted to approach
them, not only without aubjeeting himaelf
to evil, but even free from the fear of moles-
tation or hindrance. He ahould also be
enabled to procure, without difficulty, the
attendance of all aueh persons as are nccea-
aary to maaifeet his rights. Now, this great
object in the adminiatration of justice would
in a variety of ways be obstructed if parties
and witnessea were liable to be served with
process while actually attending tha court
It ia often matter of great impwtanee to
the citizen, to prevent the Inetitution and
prosecution ol a anlt in any court, at a
distance from his home and his means of
defense; and the fear that a suit nay be
commenced there by lummons will as ef-
fectually prevent hie approach as if a
capias might be served upon him. This ia
especially the ease with dtizens of neighbor-
ing statea, to whom tha power which the
Bourt poasesses of compelling attendanee^
cannot reach." <J
* The state eourta, with few axoeptkins,*
have followed thia mie, applying it to plain-
tiffs aa well as defandante, and to witneeeea
attending voluntarily as well aa those un-
der aubpiEna. niustrative eases may be
cited: Richardaon v. Smith, T4 N. J. L.
Ill, 114, 06 AU. IBS; Matthevn v. Tnfta,
87 H. T. B68i Mitchell v. Huron Olrcul*
Judge, 63 Mich. Ml, 19 N. W. 176; An-
drews V. Lembeek, 46 Ohio St. 3B, IS Am.
St. Rep. S47, IS N. B. 483; Wilson t. Dob-
aldson, 117 Ind. 356, 3 L.R.A. 266, 10 Am.
St. Rep. 48, 80 N. E. 260; Firet Nat. Bank
V. Ames, 39 Minn. 179, 39 N. W. 309; Lin-
ton V. Cooper, 64 Neb. 438, 69 Am. St. Rep.
727, 74 N. W. a42; Bols v. Crone. 64 Ean.
670, 67 Fac. HOB; Murray v. Wilcox, 128
Iowa, 188, 64 L.RA. 634, 101 Am. Bt Rep.
263, 07 N. W. 1087; Martin t. Bacon, 76
Ark. 168, 113 Am. St. Rep. 81, 88 S. W.
BS3, S Ann. Cas. S36.
There are a few eases to the contrary, of
which Bishop v. Vase, 27 Conn. 1, 11; Bald-
win v. Emerson, 16 R. L 304, 27 Am. 8t
Rep. 741, 16 AtL 83; Lewis v. Miller, lU
Ky. 623, 74 B. W. 801, are inatancea.
In Blight V. Fisher (1809) Pet C. C. 41,
Fed. Cas. No. 1,642, Mr. Jnatlee Washing-
ton, sitting at circuit, held that the privt-
l^e of a suitor or witneaa extended only
to an exemption from arrest uiA that t&e
L« topic A SST-NOUBBR In aU KeT-Nnmb«Tsa DlfaaU * Indazes
A^iOOglC
87 SOPBEMB COURT SBPORTES.
Ooi. Ikui,
•ervtce of ft (mnmoiu wma not a TioUtion
of the privilege or ft contempt of court
unleM done in ths actiwl or coastmctiTe
presenea af the court But in Farltcr t.
Hotchkiss (lS4e] 1 Wsll. Jr. 269, Fed.
Cu. No. 10,739, DiBtrict Judge Eue, with
th« ooncurrence, aa ha itatea, of Chief Jua-
tlm Tftnej and Mr. Juatice Qiier, over-
ruled Blight T. Fiaher, and lustaiDed the
privilege in favor of a nonrMident admitted
to make defenie in a pending auit, and
■erved with summona while attending court
for that purpose, the court deciaring: "The
privilege which ia aaeerted here is the privi-
lega of the court, rather than ot the defend-
ant. It ia founded in the neceuitiea of
the judicial adminlBtration, which would
be often embarraseed, and sometimeH inter-
rupted, If the auit^r might be vexed with
process while attending upon the court for
the protection of his rights, or the witness
It while attending to testif^r. Witnessea would
« be charj of coining within our jurisdiction,
■ and would be exposed* to dangerous influ-
eneaa, if they might he punished with a law-
auit for diiple&aing partlea bj their testi-
mony; and even parties in interest, whether
on the record or not, might be deterred from
the rightfully fearless assertion of a claim
or tbe rightfully fearless assertion of a
defense, if they were liable to be vial ted on
the instant with writs from the defeated
party." Since thla deciaioo, the Federal
circuit and district courts have consistently
■uatained the privUego. Juneau Bank t.
McSpedan, 6 Bias. 64, Fed. Gas. No. 7,5S2;
Brooks T. Farwell, 2 HcCrary, 220, 4 Fed.
IDS; Atchison t. MorTi^ 11 BUe. 191, U
Fed. 682; Nichols v. Horton, 4 McCrary,
6«7, 14 Fed. 827; Wilson Sewing Maoh.
Co. V. Wilson, 23 BUtchf. fil, 22 Fed. 803;
Small V. Montgomery, 23 Fad. 707; Einne
V. Lant, 68 Fed. 436; Hale ▼. Wharton, 73
Fed. 739; Morrow v. U. H. Dudley k Co.
144 Fed. 441; Skinner ft H. Co. r. Waite,
165 Fed. 828; Peet v. Fowler, 170 Fed. 618;
Bowihynialakl v. Hele, 201 Fed. 1017.
Judgment affirmed.
(Ml n. 8. 1!0> •^-^—
PENNSYLVANIA EAn.BOAD COMPANY,
PUT. in Err.,
BONMAN SHAFT COAL COMPANY.
CouuERCE ^=40(1) — "Intebbtatb Com-
mehcb"— What is— Salb or Coal F, O.
B. Mines.
1. The sale and delivery of coal f. o. b.
ears at the mine for transportation to pur-
chasers !□ other state* is interstate com-
COUOEBCE ^389— COCBTS — OOHOUBBBtn
JuBisDicnoN — StUT AOAiNffT Ihtxb-
BTATE Cabrixb — F'aildbe to PVbhisii
Cabs— AsMiiTiSTKATIVE QuBsnoif.
2. Jurisdiction of an action to reaver
damagea arising out of a carrier's failure
upon reasonable demand and under normal
c(»iditionB to supply to a shipper in inter-
state commerce a sufficient nuniber of oars to
transport tbe output of the latter's ooal
mine may be entertained by a state court
consistently with the provisions of the Act
ot February 4, 1887 (24 Stat, at L. 379,
chap. 104, Comp. SUt, 1913, | 8663), \% 8,
S, praacribing modes of redreas to shippers
aggrieved by violationa of that act, and % 22,
preserving existing righta and remedies, al-
though the carrier may have been applying
or following a rule for allotting cars which
did not entitle the shipper to receive as
many ears as it needed and requested,
since, tbe conditions in the coal trade being
normal, and the demand for the cars being
reasonable, the rule was Inapplicable, and
there was, therefore, no administrative quea-
tiou for the Interstate Commerce Commia.
[Ed. Nota.— F^r other eaaaa, see Commerce,
Dsc. Die. ^=M.\
Carriers «=>45— Evidbhcb— Relivanct —
Carrier's Failure to F^rutsh Cars —
EquiPUBNT ON Other Lines.
8. Evidence of the number of tbe car-
rier's coal cara on other railway lines is im-
material in an action to recover damages
arising out of the carrier's failure, upon
ol cars to transport the ou^ut of the let-
ter's coal mine, where there Is no claim of
a oar shortage, or that conditions In the
coal trade were other than normal.
[Od. Note.— ror other csMt. sea Carrier*.
Cwit Dig. II 120, I*" — -
[Ed.
■ other
S-128: Dec £
[No. 10.1
IN ERROB to the Supreme Court of the
State of Pennsylvania t« review a judg-
ment which affirmed a judgment of the
Court of Common Plea* of Clearfield County,
in that state, in favor of a shipper in an
action against a railway company for dam-
ages caused by the failure of the latter to
furnish cars. Affirmed.
6ee same case below, 241 Pa. 467, 88 AtL
746,
The facts are stated In the opinion.
McBBrs. Francis I. Gowen, John G.
Johnt<on. and Frederic D. McEenney for
plaintiff In error.
Mmsts. a. M. UTcrlght and A. L, Col*
for defendant in error.
le laplc ft KEY-NUHBBRinallKei'-Numbereil DlieetiAlDd
D,at,z.d>,.'^-.00'^IC
- Wl«.
PENNSYLVANIA R. 00. ». 80NMAN SHAFT COAL CO.
47
* Ur. JmtiN Tan Dcvanler deliTered Um
opinion of the court:
Ilie coal companj bronglit titU Action to
reeorer damiges from the railroad companj
upon two grounda: flrgt, tlutt for a period
of four feara, beginning April 1, 1D03, ths
railroad company liad failed to eupplj tha
eoal company with a lufficlent namber of
e»n to meet th« needa of tbe latter'a coal
mine; and, Mcond, that during the same
period the railroad company. In furnishing
ears to the aeveral mlnea in tJiat diatrict,
had discriminated unjuetly againat the coal
company and In faror of aome of Ita com-
petitora. The aecond ground waa eliminat-
ed by the coal company at tha trial, and doea
mA require further notice. The action
MWM begun in a atate eontt and reaulted In
• > * judgment for the coal company for
9145,830.20, which the anpreme eoort of the
•Ute affinned. 241 Pa. 487, 88 AU. 740.
Hi* queatlona preaent«d by tha aeveral
aaaignmenta of error arai <1) What wa*
th» natnro of the commerce InTolredt (2)
If tha ocmuneree waa Interatat<^ waa tha
action ct^niaable in a atate courtT (3)
Waa prejudicial error committed in axclad-
ing evidence prca«ntly to ba mantioQed t
The ooal ecnupany aold Ita coal f. o. b. care
at the mine, and when the cara were loaded,
the coal waa promptly forwarded to tha
purebaaara at pointa within and without the
■tate, — largely to pointa in other atatea.
nia waa well uoderatood by both com-
pamiea, — by tha coal company when It aaked
fin- ear* and by tha railroad company when
tt aupplied Uiem. Cara were not requaated
«r furniahed merely to be uaed in holding
«r aloring coal, Init atwaya to be employed
In ita immediate tranepartation. While
tnmiahiag aome care for thia aerrioe, the
railroad company failed to fnmiah aa many
aa tha coal company needed and requeated.
It la plain that aupplying the requiaita cara
waa an easential atep la tha intended ]no*a-
ment of tha coal and a f*ii of the com-
merce— whether interatate or Intraatate — to
which that movement belonged. It was ax-
preaaly ao held in Pennaylvanla B. Co. t.
Clark Bros. Coal Min. Co. 238 U. 8. 4SS,
4a5-4S8, SS L. ed. 1408, 1410-1412, K Sup.
Ct Bep. BOe. We there a^d of tha aala
and dellTny of coal f. o. h. at tha mine for
transportation to purchaaBra In other
■tates: "The movement thua Initiated ia
an interatate movement and tha facilities
required are facilities of interatate com-
mcTce." Eera the atata court ruled that,
aa the coal waa aold f. o. b. at the mine,
the commerce Involved waa intraatata, even
though the coal waa going to purehaaera
outaida the etate. This waa error, but it
plainly waa without prejndlca nnieaa it led
tha atate court to eierclw a jurladtcUon
which it did not poeaeaa.
In the courta below the railroad company
contended that, In ao far as the commerce
involved waa interatate, tha action could notn
be entertained by a atate court conaistantlyH
with the Interatate* Commerce Act, chap.*
104, 24 Stat, at L. 370, Comp. Stat. 1913,
g 8GS3, and that contention ia renewed here.
It proceeds upon the theory, flrat, that the
coal company waa without any right to re-
dreaa in respect of ita interatate buaineea
unleea the failure to anpply It with tha
requiaita cara waa a violation of aoma pro-
viaion of that act; aecond, that 3§ 8 and S
of the act preecrilte the coiIy modea of ob-
taining redrCBB for vlolatlona of ita provl-
alona; and, third, that an action for dam-
agea in a atata court la not among the modea
preacribed.
It is true that H > ud 0 deal with Uie
redreaa of injuriea raauiting from violas
tiona of the act, and give the peraon injured
a right either to make compl^nt to tha
Interatate Commerce CMnmiasion or to
bring an action lor damagea In a Federal
court, bnt not to do Ijoth. If the aet aaid
nothing more on the anbjeet It well may
ba that no aoUon for damagea reanlting
from a vloUtion of the act could be en-
tertained by a atata court. But the aet
abowa that %% 8 and S do not completely
expreaa the will of Congraaa aa respecta the
injuries for which redreaa may ba bad or
the modea in which It may be olttainad, for
j &S ocmtainB thia important proviaion;
"Nothing in thia act contained aball in any
way abridge or alter tha remedlea now ex<
leting at common law or by itatuta, Imt tha
provisions of thia act ara in addition to
■uch remadlea." Tha three aectiona, if
broadly oonatmed, are not altogether hai-
monioua, and yet it evidently la Intended
that all aball be operative. Only by reading
them together and in connection with tha
act aa a whole can the real pnrpoaa of each
een. They often have bean conaidered
and what they mean hae become pretty well
settled. Thua wa have held tiiat a manifest
purpoae of the provlalon In S 28 Is to make
It plain that such "appropriate common law
and atatutory remediea" aa can be enforrad^
eoniiatently with the acheme and purpoae^
of the aet are not abrogated or'diaplaced*
(Texaa & P. E. Go. v. Abilene Cotton Oil
Co. 204 U. S. 420, 446, 447, 51 L. ed. SG3,
fiSl, 602, 27 Sup. Ct. Rep. 860, 0 Ana. Caa.
107B) ; that this proviaion la not intended
to nullify other parte of the act, or to
defeat righta or remedlea given by earlier
aectiona, but to preserve all existing righta
not inconaiatent with thoea which the act
ereatea (Pennaylvanla B. Co. v. Puritan
A^iOOglC
ar SDPBEUB GOUBI SXPORTEB.
On. Temm,
OmI Ua. Co. 237 U. S. 121, 120, 69 L. cd.
eaT, 872, 86 Snp. CL Kep. 4S4] ; tbat the
act doea not superBeds tha Juriadiction of
■ta.te court* in any cue, new or old, where
the decUion does not ioTolve the deter-
mination of matters calling lor the ezerciae
of Uie idminiBtrative power And diacretion
of the Interstate Commerce Commisaion, or
relate to a lubject as to which tiie juri»-
diction of the Federal courts is otherwise
made exclusivs (id, 180); that claims for
damages arising- ont of the application, in
Interstate eonuneice, of rules for distribut-
ing can In timea of shortage, call tor the
axerelM of the admin istratiTe authorit7 of
the CommissioD where the rule is aatailed
aa unjustly diseriminatorj, but where the
aseault is not against the rule, but against
Its unequal and disoriminatoiy application,
no adminiitrative question i« presented and
the claim may be prosecuted in either a
Tederal or a state court without any pre-
cedent action by the Commission (id. 131,
132) J and that, U no administrative ques-
tion be involved, as well may be the case,
a claim for damages for failing upon reas<Ht-
aUe request to furnish to a shipper in inter-
state commeroa a sufSdent number of oars
to satisfy his needs may be enforced In
either a Federal or a atato court without
•ay preliminary finding by the Commission,
and this whether the carrier's default was a
Tiolation of ita common-law duty existing
prior to the Hepburn Act of IMe, or of the
duty presoribed by that acti (Id. 132-136;
„ Eastern R. Co. v. LittleSeld, 237 U. 8. 140,
§143, 69 L. ed. B73, 362, 36 Sup. Ct Bep.
■480; Illinois C. R. Co. v. Mulberry 'Hill
Coal Co. 238 U. B. 276, 2S3, 69 I- ed. 1306,
1310, 36 Snp. Ct. Rep. 760; Pennsylvania R.
Co. T. Clark Brae. Coal Min. Co. 238 U. 8.
466, 472, 60 L. ed. 140S, 1413, 36 Sup. Ct.
R^. 806).
Applying these rulings to the caae In
hand, we are of opinion that a state court
eould entertain tha action ooneistently with
the Interstate Commerce Act. Not wily
does the provision in | SS make strongly
for this ooneluslon, but a sarvey of the
scheme of the act and of what it is intended
to accomplish diHcloBes no real support for
tha opposing view. With the oharge of un-
just discrimination eliminated, the ground
upon which a recovery waa sought was that
1 "See. 1. . . . and the term 'trang-
portation* shall Include cars and other ve-
hiclea and all InBtrumentalitiea and facil-
iUes of Hblptnent or carriage, . . .; and
It ijiall be tha duty of everr carrier sub-
ject to the provisians of this act to pro-
vide and furnish such transportation upon
reaaonabla requeat therefor, . . ." chap.
3601, 31 BtaX. at L. 684, Cot^. Stat. 1013,
I 8563.
' for a period of four yean, during whldi
the conditions were normal, the carrier had
failed upon reasonable demand to supply to
a shipper in interstate commerce a sufficient
number of care to transport the output of
the latter'a coal mine. Assuming that the
conditions were normal and the demand
reasonable. It was the duty of the carriar
to have fnmisbed the cars. That duty arose
from the common law up to the date of tha
■mandatory statute of 1S06, known as tha
Hepburn Act, and thereafter from a pro-
vision in that act which, for present pur-
poses, may be r^arded aa merely adopting
ths common-law ml*. There waa evidence
tending to show, and the jury found, that
the conditiona in the coal trade were noimal
and the demand for tha car* reasonable.
Indeed, without objectimi from the carrier,
the court laid when charging the jury:
"There is no testimony disputing the claim
of the plaintiff tbat these were normal
times." Hie carrier insisted and the jury
fonnd that the carrier had a generally
ample car supply for the uaeds of the coal
traffic under normal conditions, and the
Jury further found that the failure to fur-
nish the oars demanded waa without JustiB-
able excuse. Thus far it i* apparent that
no administrative question was involved, — ^
nothing which the act intend* shall be*
passed upon by the*Commis«(« either to*
the exclusion of the courts or a* a necea-
sary condition to Judicial action.
But there waa teetimooy tmding to show
that the carrier was applying or following
a rule for allotting ears which did not en-
title the coal company to receive aa many
Mrs aa it needed and requested, and because
of this it is contended that tha reasonable-
nesa of this rule was in issue and was an ad-
ministrative question which the act in-
tends that tha Commission shall solve. We
cannot accede to the contention. The con-
ditiona in the coal trade being normal, aa
just shown, tlie number of cars to which tha
ooal company was entitled waa to be meas-
ured by its reasonable requests based npoa
its actual needs. It is only in times of car
shortage resulting from unusual deraanda
or other abnormal conditions, not reason-
ably to have been foreseen, that car distribu-
tion rules originating with the carrier can
be regarded aa qaallfying or affecting the
right of a shipper to demand and receive
ears commensurate In number with hla
needs. Pennsylvania R. Go. v. Puritan Coal
Min. Co. 237 U. S. 121, 133, 69 L. ed. 867,
B73, 35 Sup. Ct. Rep. 484. Such a rule be-
ing Inapplicable In tha conditions existing
at tha time, the rule mentioned In tha
testimony could not lie a factor in the dfr
dsion of the case, and whether In a time ol
,A_.oogle
»i«
?ESSStLVaKU R CG, t, JACOBY * 00.
unforeseen cxr Bhortaga it would be rea-
■onkbla or otherwise nu not then material.
VpoD the trial carrier offered to prove
hj a witnew then under examfnatloa
"that during alt of the period of thti action
the defendant had in effect . . , through
Toutee and joint rates to polnta outside the
■tata of PennijrlTania on the lines of otlier
common carrlera; that it was obliged to
permit can loaded bjr Its ship pen with
bituminous coal consigned to such points
ontude tbe state of Pennsylvania to go
through to destination, even when on the
lines of other railroad companies: that, as
^a result of doing this. It had eontinuouslj
nUironghont the period of this action a large
■number of cars off its own lines ^d on ttie
lines of other common carriers, which can
would otherwise have been available for
■hippen of coal on the railroad lines of
Uie defendant, and these cars, if not on
other railroad lines, would have increased
the equipment available for distribution to
the plaintiff's mine and would consequently
have diminished the damage which plain-
tur claims to have sustained by reason of
the f,ict that it did not receive more cars
than It did reeelve."
But on the eoal companj'B objection the
evidence was excluded. We think the rul-
ing was right. Tbe offer did not point to
any nnusual or abnormal condition, not
reasonably to hare been foreseen, but, on
the eratrary, to a dtnation which was de-
scribed as continuous tliroughout the four-
year period to whi<^ the action relates. It
did not indicate that thia condition was even
peculiar to that period, or was caused by
an extraordinary volume of coal traffic or
■n unusual detention of cars on other lines
of railroad, or that it was other than a
normal Incident of the coal transportation
In which the carrier was engaged. Without
donbt the ears of this carrier when loaded
with coal often went forward to destinations
on the lines of other carriers. It is i
mon knowledge that coal transportation
has been conducted quite generally in thli
way for many years- Besides, a carrier
extensively engaged in snch transportation
frwn mines almg Its lines, as this one was,
naturally would expect to have a considera-
ble number of cars on other lines in tbe
ordinary course of business. Although pos-
sibly having a bearing upon the adequacy
of the supply of cars provided by the ca
tor the coal business as a whole, — a matter
not within the contemplation of the offer,-
it is cerUin that what was proposed to be
proved had no tendency to show that the
eurier had supplied to the coal campaii?
tiie number of ears to which it was entitled,
or to mitigate the carrier's default In thak
igard.
Jndgmmt affirmed.
W. F. JACOBY k COMPANY.
OOKUKBCX ^=>B7— Tbial «=>260(6) — Ap-
PBAI#— Rbvbbsiblb Bbrob — Befobiho
Stqusbted InSTBCcnoN— Dauaoeb.
The refusal. In an action upon an
award to shippers mads by the Interstate
Commerea Commission upon a Qnding of il-
legal discrimination in the distribution of
coal cars, of a requested instmctlon to the
effect that there could be no recovery if the
jury should find that the award was bated
upon the ratio which the cars furnished by
the carrier to favored shippers bore to the
latter's mine ratings, as shown by certain
percentage tables In evidence before tbe
Commission, is reversible error where the
conclusion is irresistible from the evidence
that the Commissian may luive used such
sntagea In reaching the amount of dam-
, and thus have based Its award on the
mistaken theory that the complaining ship-
Gra were entitled to receive cars Miual
ratio to those illegally aod preferentially
FLVen to the favored shippers. And such re-
fusal wae not cured by general observations
in the main charge on the question of dam-
ages, however correct they may have been,
"M. Note.— For other c«»b, ese Commoroe.
il. Dig. I liT. Dec. Dig. (a=j!T; TilaU Cent.
Die. I ffiS: Otc Dig. ftsZUtS].]
[No.
2.]
0^0
Argued October 20, 1B15. Beargued October
S3 and 24, 1916. Decided December 4, 1916.
fl A CEBTIPICATB from, and WRIT
OP CEBTIORARI to, the United States
Circuit Court of Appeals for the Third Cir-
cuit, bringing up for review a cause pend-
ing In that court on writ of error to a judg-
ment of the District Court for the Eastern
District of Penney Ivania, enforcing an
award of damages made by the Interstate
Commerce Commission l>ecause of discrim-
ination In the distribution of coal cars.
Judgment of District Court reversed and
ease remanded to that court for a new trial.
The facts are stated in the opinion.
Messrs. Francis I. Gowen, John O.
Johnson, and Frederic D. McKenney for
the Pennsylvania Railroad Company.
Mr. WtlUam A. Glasgow, Jr., for W.
P. Jacotiy k Company.
* Hr. Jnstloe Day delivered the opinion M'
the court;
Jacoby A Company, hereinafter called the
plaintiffs, owned a coal mine known as
Falcon No. 2 In the Clearfield district served
)Far other cuiei He same topic t KSY-NUMBER to all Ker-NoinbeTeil Dliwti ft Indexes
a'S-c-i L',oi,z,ivA_-.OOglC
so
37 BUFBEME COUBT RBPORTEK.
Oct. TtMM,
hj the ^one diTiaion of the llnea of the
Penneylvitnia EHllroad Company, herein-
after c&lled the eompuif, and shipped c<i«J
from their mine in interetate commerce. In
April, 1907, the plaintiffe made eompUlnt
before the Interstate Commerce Commiealon
of diHcriminatary pracUces against them In
the distribution of coal cars, in violation of
tlie Act to Regulate Conuneroe. The Com-
mission made findings, among other*, that
Falcon No. 2 trae not placed on an equal
footing with the minee of the Berwind'
White Coal Company in the matter of the
dittrlbntion of the defendant's available
coal car equipment during the period of the
action. It also found a special allotment of
COO cara daily to the Berwind-White Com-
pany to be an undue preference and dis-
criminatton, and on Uarch 7th, 1910, the
Commissfon made an order, finding that the
complainants had been unduly diacrimineted
against, and set forth that it appeared "that
it is and has been the defendant's rule, r^n-
Ution, and practice. In distributing coal
cars among the various coal operators on
« Its lines for interstate shipments during
• percentage •perioda, t« deduct the capacity
In tons of foreign railway fuel ears, private
cars, and system fuel ears, in the record
herein referred to as 'assigned eari,' from
the rated capacity In tons of the particular
mine receiving such cars, and to regard the
remainder as the rated capacity of that
mine in the distribution of all 'nnaaslgned'
cars." The Commission ordered "that the
said rale, regulation, and practice of the
defendant in that behalf unduly diacrlmi-
nates against the eomplainanta and other
eoal operators similarly situated and la In
violation of the 3d section of the Act to Reg-
ulate Commerce . . . and that the defend-
ant be, and it ia hereby, noUfled and
required, on or before the lat day of Novem-
ber, 1910, to cea«e and desist from said
practice and to abstain from maintaining
and enforcing it* present rule* and regula-
tions in that regard, and to cease and desist
from any practice and to abstain from main-
taining any rule or regulation that does
not require it to count all such assigned
car* against the regular rated capacity of
the particular mine or mines receiving such
cars in the same manner and to the same
extent and on the same basis as unasslgned
cars are counted against the rated eapa<d^
of the mines receiving them."
At the same time, the Commission ordered
that the question of damage* euatalned by
the plaintilTa in reapaet to tha matters and
thing* in the report found to be diserinlna-
tory be deferred pending further argument.
mission referred to Its report filed tii*
same day to the ease of Hillsdale Coal k
Coke Oo. V. Pennsylvania R. Co. IS Inters.
Com. Rep. 306, in which the diacriminatory
character of the rule* of car distribution
of the company is fully discussed (page
864) and the rule* are condemned, largely
because of the advantage* given to the
owners of private ears unless the same
shall be counted against the distributive
share of the mine receiving them. See also:*
the discussion of these rulings In'Pennsyl-?
vania R. Co. v. Clark Bros. Coal Min. Co.
238 U. S. 4S8, 69 L. ed. 1406, 8S Sup. CL
Rep. 890.
On March 11, 1018, the Commission mads
a further r^ort. In which it found aa fol-
"We find that by reason of the diacrimina-
tions ascertained and sat forth In our re-
port in Jaooby r. Pennsylvania R. Co. 19
Inter*. Com. Rep. 398, the complainant*
ware damaged to the extent of $21,094.39,
which they ar* entitled to recover with In-
terest from June 28, 1907.
"The elsimanta hare demand 151,090.40,
The award above made we base upon evi>
dence adduced of record, from which we find :
"(a) That the fair rating of the min*
for the time in queetion, a* fixed by the de-
fendant and not objected to by the complain*
ants, was 460 tons per day.
"(b) That during the period from April,
1004, to March 81, 1B06, the mine was oper-
ated 276 days; and that during the eecond
period named on tha azhlbit*, from April 1
to October 18, 1006, It was operated 138}
day*.
"(c) That during the first of theae periods
38,714.23 tons were actually shipped from
Falcon No. 2, and during the second period
17,073.88 tona; that If the complainants
had reeeived their fair share of tha cart
available for distribution the mine would
have made additional Interstate shipments
and lalea to the extent of 35,412.02 tons
snd 19,104.77 tons during the reapeetive
periods.
"(d) That the BTCrage selling price of
the complainants' product for the first peri-
od was 11.212 per ton, and in the second
period ll.lOTOi that the cost of production,
based on economical operation of the mine
with a fair car supply, would have been OS
cents during tha entire period of the action;
and that the profit during the first period
would therefore have been 89.2 eeata and
during the second period 24.7 cents per ton.
ms measures tha loss on the tonnage which
the complainant was imaMe to ship. n
* "(e) niat the aetnal cost of production*
la shown by tha record as II.OIS pet ton
during the firat period snd tlJHO p«r ton
A^iOOglC
191*.
PENNSYLVANIA R. 00. t. JACOBY * CO.
51
during the Mcond period, making ui axccu
of 0.6 eenti and 12.0 eeata for tha reapM-
live periods in the aetwtl cost of production
under the conditioiM obtaining, aa compared
vith whAt would have been the eoat baaed
on a lair car aupplj «• heretolore atated.
This la the baale adopted for tompoting the
loaa BUBtained bj theae eomplalnanta in di-
miniahed profita for the coal actually
ehipped during the period in queitiou."
On March 11th, 1012, the CommiBilon
made a reparation order in favor of tiie
plaintiff!, eonflnnlng ita former orders, find-
ing*, and eoQcluaions, and ordering that the
eompanj ahonid pay to the plaintKfi on or
balore the let daj of June, 1S12, the lum
of $21,094.30, with Interest thereoB at the
rata td 8 per emt per annum from Jnne
28th, 1007, aa reparation for defendanfa
diacrimination in distribution of eoal cars,
which discrimination had been found by
the Commission to bs nolawfiii and unjust.
Upon theae orders of the CommlBslon, suit
was brought In the district court of the
United States, fat the eutem distrlet of
Penn^lrania, on July ISth, 1012, tlis ac-
tion being based upon | IS of ths Act to
Rq^ate Commerce (84 SUL at L. SOO,
diap. 3SV1, Conp, SUt. 1S13, ISCS4). The
ease waa heard In the district court, and
resulted in a Terdiet tor the amount award-
ed by the CommlsBion, with Interest there-
on. On the case going to the eiroult eonrt
of appeals, that court certified certain quei-
tlona to thia court, and upon writ of cer-
tiorari the whole reeord waa brought here.
The ease was argued before this oourt at
the Oetober term, lOlfi. At that term the
judgment below waa afflrmad, with costs, by
ft divided court. Afterwards, and at the
aame term, a petition for rehearing waa
granted and the former judgment set aside,
and the eaae restored to the docket for re-
argmnenb 230 U. B. SSI, SO I., ed. 47S,
30 Sup. Ct. Rep. 16B.
2 At the trial in the district court the plaln-
• tiffa offered *no other testimony as to the
amount of damages ■uatained by them than
that contained in the orders of the Com-
mfsslon, before recited. Bectlou 10 of the
act makea the findings and orders of
the CommiBiion prima fade erldence of the
fact* thwein stated, and it may be con-
ceded that if no teatimony waa offered in
the case to orercome the prima facie eas*
tho* made, the orders of the Commission
would be controlling and dateraalne the
amount of reeorery. Tb* prima fade char'
actv of the flndings of fact and award of
damage* by the Commission was established
upon foil consideration of the subject In
Ueeker w. Lehi^ Valley R. Ool 236 O. S.
412, 426-431, SO L. ed. 644, 6S6-BSB, P.U.R.
1915D, 1072, U Sup. Ct Rep. 82B, Ann.
Caa. 1B16B, 6B1, and aeeond Medter Csse,
236 U. S. 434, 50 L. ed. 660, 8C Sup. Ct
Rep. 337. This court said in Uills t. Le-
high Valley R. Co. 238 U. & 4TS, 481, SO
L. ed. 1414, 1418, 35 Sup. Ct Rep. 88S,
after quoting from the Meeker Coses supra:
"nte statute waa not concerned with mere
forms of sipreeBion, and. In Tiew of tbe
decision that a finding of the ultimate fact
of the amount of damage is enough to give
the order of tbe Commisaion effect ai prima
fads evidence, we think the court did not
err in its ruling. The statutory provision
merely established a rule of evidence. It
leaves every opportunity to the defendant to
contest the dalm."
In iwder to meet the prima fade case
mad* by the plaintiffs upon the orders of
tiie CommisiioD in awarding damage*. In
the conras of the testimony the company
put in evidence certain iheeta, which were
offered is evidence before tbe Commission
by the plaintiffs. In the hearing before that
body, known as exhibit No. 10. These
sheets were entitled, 'n>etailed statements
showing disorimination in favor of other
mine* and against Falcon No. S [the mine
of the plaintiff*], from April 1st, 19D4, to
April 1st, 1005," and "from April 1st, 1B05,
to Oetober IBth, 1000," respectively, these
being the periods for which recovery was
sought In this caae by tbe plaintiffa These
sheets undertook to show the percentage of
cars awarded to certain preferred eompanlesg
by the railroad eompany, aa'eompared to*
thoee awarded to the plaintifh for use in
their mine during the period stated. They
were intended to show that the favored
companies received ears during the flrst
period to the extent of 60.0 per cent of their
mine rating, and during the second, 50.6
per eent of their mine ratings, which per>
centsgea were much larger than the plain-
tiffs received for their mine during the like
periods. In other words, it waa thus *ougbt
to establish that the favored mines received,
not their juet proportion of ths distributa-
ble cars, but a much larger, and highly dia-
criminatory share when compared with the
allotment made to tli* plaintiffs. It Is the
contenUon of the eompany that It Is de-
monstrable fr<un this record that these ta-
blea showing tbe percentagea awarded to
favored oompaBle* were made the liaais of
the Couiml**ion'* award of damages.
We have already seoi from the order* of
the Commisdon, above redted, the manner
In which it made ita award and reached its
oondnsion aa to the amount recoverable by
tha plaintiffa. At ths trial in the district
.A^^OO^IC
»7 SUPBBUE OOUBT BEPOBTBB.
Oot. '.
court, the Companj placed « wHubm npon
the stand, who t«atifled aa follont
Q. Referring to the order which haa been
put in eridenee, made by the lDterBt«ta Com-
meree Commiuiou, flndlng a eertain amount
aa due Jacobj k Companj, will yon pleaae
aa; whether jaa have talccn the daily rat-
ing fixed by the Coouniaaion aa proper;
namely, 4G0 toaa per day, and multiply that
by 275 days, the d&ye which the Commia-
aian found tiie plalntiflTi mine would have
been able to work in the year ending March
31, 1DQ5, and tell lu what the aggregate
number of tone ia, baaed upon thoae two
dguresi
A. 1^,7S0 tone.
Q. In that aama order the CommlMlon
hai found that the plaintiff shipped in that
period 38,714.23 ton* and that they ought
to have received care which would have en-
gablcd them to ihip 35,412,02 tona additlou-
• al. If they had madt^thoM additional ihip-
menta what would the total volume of
ahipmenta have beent
A. 74,126.85 tone.
Q. What percentage of the aggr^at* ca-
pacity of the mine, baaed upon 460 tone per
day and 275 daya, are the aggregate ahip-
rnent* which would have been made, which
fou have juat apoken oft
A. 6&.6 per cent.
Q. Coming to the eeeond period of the
Mtion, the Commiaaiou found that 4G0 tona
per day waa a proper rating for the mine
and that the mine would have been capabU
of working 138) day*. What, on that basia,
la the aggregate capacity of the mine in that
period?
A. 62,212.61 tona.
Q. In thdr order the Commteaton found
that in that period the mine had ehlpped
1T,BT3.88 tone and that It should have re-
ceived earn which would have enabled it to
ahlp 19,104.77 tona addlUonal. If It had
made those additional sbipmenta, what
would have been tlie total shipments In
that period T
A. 37,0T8.S5 tons.
Q. And what percentage Is that of the
aggregate rated eapaeit; based on 460 tona
a day and 1381 dayst
A. 68.6.
IhU testimony was eotnpetent In order
to meet the plaintiffs' caoe bued on the or-
ders of the Commission, and from it we
think the eoncIUBion la inevitable that the
Commission may have naed the pvoentages
of 60.9 per cent and S9.0 per eent respeotive-
ly in reaching the amount of damages
awarded to the oomplainant. If so, the r«-
eorary was permitted, not upon the basis
of damage* snstaitied hf reaaon of the Il-
legal dlacrimlnaUon practised agunst the
plaintiffs, aa found by the Commission, but
upon the basis that they were entitled to
receive cars equal in ratio to those illegally
and preferentisJly given to the eertain fa-
vored companies named in tiie tables, ^sjj
^ect ol*the enforcement of such rule would*
be not to give the shipper the damages
which he actually auffered, but would base
the neoytrj upon a rule which la condemned
aa to others, because of its diseriminatioa
in their favor, — a reault manlfeatly not in-
tended by the act of Congreas.
The testimony being in the oondition
which we have stated, and the plaintiffs
having offowl no testimony to abow the
amount of damage* luatained other than
that contained in the order made by the
Coiwmiaaion, the oompany made oertaln
definite requeaU to charge^ which were re-
fused. In one of them, Uiey requeited a
peremptory instruction in favor of ths oom-
pany upon the ground that aa the award
of the Interstate Conuueree Commiuion was
baaed upon the conclusion tiiat, in the year
ending April 1st, 1905, the plaintiffs should
have reeeived ears equal In capacity to
69,9 per eent of the aggregate of their daily
mine rating for 276 days, and in the period
between April lit and October 18th, 1S06,
cars equal In oapaeity to 69.S per cent of
their daily mine rating for 138) days, it
was apparent that this eoncluslou of the
Commisaion was based upon the evidence
presented by the plaintiffs that the aggr«-
gata of the cars placed by the defendant at
oertaln mines selected for the purpose of
comparison from those oomprlsed In the
region in which the plaintiffs' mine waa
located had been equal in the earlier period
to 69.9 per eent, and In the later period
69.0 per eent of ths aggregate ratings of
these seleoted mines. If the court should
refuse to charge as above requested, the
court was requested to instruct the Jury
as follows:
"8. If the Jury should find that the eon-
elusion of the Intorstata Commerce Com-
mission that the plaintiffs, in the year end-
ing April 1, 1905, should have received
cftra equal in capacity to 6S.9 per cent of
the aggregate of their dally mine rstings,
and In the period between April 1 and Oc-
tober 18, 1905, cars equal in capacity to
69.* per eent of the aggregate of their dsilyn
mine ratinga, waa reached or arrived* at*
because of the evidence presented by the
plaintiffa tiiat the sggr^^te of the care
pUoed by the defendant at certain mines
seleeted for the pnrpose of comparison from
those comprised In the region in which the
plaintiffs' mine waa located had been e^nn'
.A^^OOglC
1018.
PBlfNBYLVANIA B. CX). v. JACOBY Jb 00.
1b the earlier period to Bfl.B par eeot and In
tbe later period to 60.6 per cent ol the ag-
gregat* ratings of these selected mines, tha
baaie for the Cominisaion's conclusion and
award was an erroneons (nc^ and the plain-
tiffs canseqaentl; are not entitled to re-
in rlew of the taBtiinan7 as we hare al-
ready stated it, we think the eompanjr was
antitied to hare this eighth request given
in charge to the jury. Nmr do we think
this refusal was cured bj tha charge that
tJie finding ol the Commission was prima
facie correct, and entitled to weight as
Buch tmleaa tha defendant produced evidence
to show that some other state of facts ex-
isted, and that the pl^ntiffe had not wat-
ferad tha damages awarded to them by the
CMnmission, and the chargs In general
terms that It was the duty of the company
to apportion and deliver to tha plaintiffs
their fair share of all cars available during
the period of the action to shippers in the
district in which plaintiffs' mine was lo-
cated, and that, if plaiuUffa racaived their
full and proportionate share of cars In tha
district, they had no cause for complaint
■gainst the cconpany, and the burden was
apon the plaintiffs to establish by eatis-
faetory proof that they did not receive their
■hare; nor by other parts of the charge in
which the jnry was told in general termi
that tbe shipper waa entitled to recover the
full amount of damages which he suatained,
■nd that, in arriving at such damages, the
jury could only talie Into consideration
whether they had bemi diacriminated
against, and to what extent they were
damaged by that discrimination, and that,
if the Berwind-White Company got SO per
cent of its output when the average allotta-
ble was S8 per cent, it did not oeceasarily
g follow that the plaintiffs would be damaged
• the entire difference between *28 per cent
and fi0 per cent, but their damage would be
the amount to which thalr number of cars
was reduced in the general allotment by
favoring somebody else snd taking the cars
from them. However correct these genwal
observations may have been, we tliink it
was error in the state of the record to
which we have already referred to refuse
the speciflc charge reqnested.
It Is urged that tha testimony before the
Commission ii not all in the record, and
that, for aught that appears, the Commia-
Uon may have reached its conclusion and
■warded damage* upon other and competent
proofs, and it is inaisted that the coincidoice
of the amount as awarded and the amount
ascertained by the use of the percentages
contained In the tahles may not necessarily
have conb'olled tha action of the Commls-
■ion. But it is dilBcult to reach the ccm*
elusion that tbe Commission could have
arrived at the result so exactly correspond-
ing with ths one obtained by the use of Ota
percentages shown in the tables, except by
actually using them to ascertain tbe sum
which Is exactly the amount resulting from
their application. The Commissian might
have approximated the same result by u><
log other and l^al means to ascertain tha
damages sustained, but when It is demon-
stratcd that the use of the percentages pro-
dsel; produces the amount awarded to the
dollar and cent. It aeans almost matho-
matically certain that the reault could bars
been reached In no other way. At least,
we think that the teatlmony was In sueh
shape that, as we havs already said, the
company was entitled to tha specific re-
quest up<Hi this aubjeet sulnnitting the mat-
ter to the jury.
For error In refusing to give this request
In charge, the judgment of the Dlatrict
Court must be reversed, and the casa r^
manded to that court for a new trial.
Dissenting, Ifr. JtuUos Pltnoy.
>v Google
S7 8UPRKUE COUKT REPOBTES.
Oct. Tnu,
VILLAQE OF SOUTH OBANQB, In Buex
County, New JerHj, uid Board of Equal!-
ution of TaxM of Haw Jeriey, DefU. in
Brr.
OoNSTiTunoNAL Law «=>138 — Ivpaibinq
CONTBACT OBLIOATIOnfl — EXEllpnOM
TBOw Taxation.
The extenBlon to Seton Hall College
by N. J. L«w» 1870, chap. 287, aa act aup-
plementing its charter, of the same exemp-
tion from taxation which had been granted
to another educational inatitutioa, ahould
not. Id the face of a contrarr ruling of the
state courts, be deemed to have created a
contract which could not be repealed by
Bubsequent legislation without doing vio-
loice to the contract clause of the Federal
Constitution, where such statute was not
enacted until taveral years after Seton Hall
College was incorporated and had entered
upon the diacharge of its charter obligations
without reliance upon any legislative aa-
thoritj exempting it from taxation, and
upon such enactment the college entered
upon no new undertalting, and made ~~
of the immunity thus extended to it by the
state, — espacially since, at the time ol the
making of the alleged contract, a state stat-
ute was In force whioh made all corporate
chartera subject t« legislative alteration and
[Bd. Note.— For nthsr cuai, see CanstltuKonBl
Law, Ont. DIr fl *■». *U ; Dec. DJs. «=>US.]
[No. 74.]
IN ERROR to the Supreme Court of the
State of Kew Jersey to review a judg-
DWt, affirmed by the Court of Errors and
Appeals of that state, sustaining the valid-
ly of a tax levied upon the property of an
educational institution. Affirmed.
See same case below, SB N. J. L. 3611, DO
AU. 1126.
The facta are stated in tihe opinion.
Hr. WlllUm J. Keanifl for plaintiff in
Mr. Adrian RIker for defendants In er-
• Mr. Justice Day delivered the opinion of
the court:
This is a writ of arror to the supreme
court of New Jersey, seeking to reverse a
judgment ol that court, which judgment
was affirmed by the court of errors and ap-
peals of New Jersey (BS N. J. L. 36G, 00
Atl. 1]26), and the record remitted to the
supreme court. The case involves the valid-
ity of a tax levied by the aascisor of the
Tillage of South Orange, for the year 1911,
the contention being that the act of the
legislature of New Jersey of March IBth,
1B70, hereinafter referred to, constituted a
contract which could not be repealed by sub-
sequent legislation without doing Tiolenc*
to the contract clause of the Constitution
of the United States.
The case was heard by the Board <rf
Equalisation of Taxes of New Jersey, and
by the supreme court of that state, upon a
stipulation of facta:
"(1) Seton Hall College was Incorporated
under an act of the legiulature of the state
of New Jersey entitled, 'An Act to Incor-
porate Seton Hall College,' chapter 86 of
the Iaws of 1861, pages 168 and 190, ap-
proved March fith, 1S61.
"(2) A supplement to said act was passed.
being chnntpr 287 of the Laws of 1S70, en-
titled, 'Supplement to an Act to Incorporate
Seton Hall College,' approved March 8lh,
1861, which supplement was ^proved
March IGth, 1870. ^
"(S) The act incorporating Drew Theolog-^
ieal*Beminajy of the Methodist Epiec^opal*
Church, referred to In the supplement abova
mentioned, was approved February 12th,
1868 (Laws of 186S, chap. 2, p. 4).
"(4) That Seton Hall College accepted its
charter contained in the Laws of 1861 afore-
said, and thereafter purchased real and
personal property from time to time, erected
college buildings thereon, and continuously
since has been and still is actively engaged
in carrying out the purposes of its creation
and fulfilling its obligations imposed by its
said charter, and haa been and is exercising
all the powers granted by said charter.
"(S) After the supplement to its char-
ter was passed in 1870, Seton Halt College
accepted the same, and purchased further
lands and erected further buildings, and has
continued ever since to live up to the terms
of both acts and carry out the purposes of
its creation, and has been and is exercising
all the powers granted thereby.
"(6) That the lands in question, with oth-
er lands, were acquired by the college by
a conveyance dated the 17th day of October,
1864, and recorded in the office of the regia-
ter of the county of Essex on the 21st day
of February, 1805, in book M-12 of deeds
for said county, on page 343.
"(7) That no assessment or tax has been
levied or imposed upon the property, real
and personal, of Seton Hall College from
the date of its original charter in 18B1,
down to the year 1911; and the tax in ques-
tion, imposed in the year 1911, is the first
tax imposed or attempted to be imposed
upon the property of aaid Seton Hall Col-
lege, real or pcrsoiiaL"
^=»Piir otb«
■ses see ume tonic 4 KEY-NUMBER In al) Ker-Numbsred CIsMta ft Indexes
191S.
SBTON HALL COLLEGE t. SOUTH UEANQE.
From the aet of ISSl, under which Scton
HaII College was incorporated, it appeara
that the object ol the iacorporation ii the
adTin cement o( edueatiou, and that the cor-
poration was giTen the right to have and
Sposacis the authority to confer academic
7 and other degree! grantedTbj other college*
In Hie etate. The act of 1870, referred to
In the stipul&tioQ, extended to Seton Ball
College tlie prlvilcgea which were granted
to Drew Theological Seminary, in relation
to the exemption of real and personal, prop-
erty o{ the corporation from aaaessmeDt and
taxation. The act incorporating the Drew
Theological Eemin&ry provided that the
property of the corporation, real and per-
sonal, ahould be exempt from aeacismeut
and taxation. In 1B7G the Constitution of
New Jersey was amended so as to provide
that property should be aasessed for taxa-
tion under general laws and uniform rules,
according to its true value. In IQ03, the
legislature paawd a t&xation law [4 N. J.
Comp. SUt. SOTft), which provided that all
property not therein expresaiy exempted
■honld be mibjeet to taxation, and that all
acta, general and (pecial, inconaiatent with
Ita provlaiona, were repealed.
It appear* that the landa so uaeaaed are
■ot those upon which the college building*
mt» erected, but are uaed for pasture land*
for cows and the dwelling* ot the help on
the farm, and that the same are eaeential
and neceaiary to the nsa of the college,
•ltd that the college derive* no pecuniary
profit from the landa in qneition.
Upon the hearing before the Board of
Equaliiation, the president ol that body de-
livered an opinion, in which It was held
thai th* aet relied upon did not purport
an intention to impose upon the state an
irrepealable eontract obligation, but was a
privU^e extended to the corporation by the
state, and therefore subject to rerocation.
This opinion was adopted and affirmed by
the supreme court of New Jersey, and also
I7 the court ol error* And appeal*.
Thia court has the right to determine for
ttaelf whether there is a contract which has
been impaired by subBequent legislation of
the State. This principle has often been
reeoErnized and stated In decisions of this
Jeourt. While this is true, the decision of
7the state court,* construing it* own statutes,
to entitled to muoh consideration and re-
epect. Milwaukee Electric R. Jt Li^t Co.
T. Ballroad Commission, Z3B U. B. 174, 1S2,
W L. ed. 1254, 1260, P.U.R.IQISD, S91, SB
Sup. Ct. Eep. S£0 ; New Tork ex rel. Inter-
borough Rapid Tranilt Co. v. Sohmn, 237
U. S. 876, 284, 59 L. ed. 001, fl64, SB Bap.
Ct Sep. MO.
In thto CMC, the sUpnlatloa tt iMta alunra
that Seton Hall Collie wa* Inoorporated
under an act of the legislature, and entered
upon the discharge of ita charter obligation*
without reliance npon any l^islative au<
thori^ exempting it from taxation upon it*
property. When the subsequent legislation
WB* enacted,— nine years after, — extending
to Seton Hall Collie the aams exemption
as wa* giTen to the Drew Theological Semi-
nary, it entered upon no new uudertalcin^,
and made no agreement by which it prom-
ised to do Bomethingi nor did it part with
anything because of the immunity thus ex*
tended to It by the state.
It is true that this court hat held that a
ohartei contract, express in ita character,
may arise from the acceptance of and action
under the terms of a charter which grant*
such exemption. In thie connection, much
reliance U placed by the plaintiff in error
upon certain rulings of this court; among
others. In Home of the Friendless v. House,
8 WalL 430, 19 L. ed. 4B6. la that case the
corporation Is shown to lutve entered upon
ita duties and expended its money in re-
liance upon th* grant of the eharter, whioh
declared that the property of the corpora-
Uon should be exempt from taxation, and
that that grant waa made for the purpose of
encouraging such undertaking and MiMt^iipg
the parties engaged therein more fully and
effectually to accomplish their purpose ; and
it was, moreover, provided that the seo-
tions of the act concerning oorporations,
which provided that the charter of every
corporation should be subject to alteration,
suspension, and repeal at the disoretioa of
the legislature, should not apply to the aet
creating the Home of the Friendlew. This
court held that the corporation waa thnse
expressly withdrawn from* the authority of^
the general act of the legislature giving a
right to alter, suspend, and repeal, and that,
under such cirenmstance*, the acceptance of
the charter, and the action under it and in
reliance upon its term*, constituted an ex-
prea* conb'act.
So, in Northweatem Univeraitj v. Dli-
nols, 09 U. S. 309, 2B L. ed. 387, the aet of
the legislature declared that the property
of the Northwestern University should lie
for«ttr ttM from taxation, and this court,
differing from the supreme court of Illinois
in that respect, held that the exemption ap-
plied, in view of the language used in the
statute, not only to lote and lands directly
used for the purposes of the institution as
a school, but also to other Iota, lands, and
property, the annual profits of which wers
applied to school purposes, and that the ex-
empting anthority of the l^ialature wa*
not limited to real estate oceupled, or ta
immediate uM^ by the onlrersl^.
D,at,z.d-,.'^-.00'^IC
S7 SUPBEUE CX)URT HEPORTEB.
Oct. :
Furthermora, when the alleged eontract
tttempting Seton Hkll College Irom taxation
waa JntAo, the New Jers^ act of 1846 waa
in force, proTtdlng that
"The charter of every eorporation which
■hall hereafter be granted by the legiaU-
tnre ehall be lubject to alteration, lUBpen-
■ion, aod repeal in the discretion of the
l^aUture."
It is true that thia act of the I^slature
waa held by thia court, in the case of New
Jersey t. Yard, 95 U. 8. 104, 24 L. ed. 362,
to conclude that the sUte court waa wrong-
in finding no binding contract here. Aa w*
have BBJd, the collie waa incorporated un-
der no promise of auch ozemption, and could
not have relied upon it In undertaking tlie
work for which it waa organized. After the
privilege of the act In Ia*or of the Drew
Seminary waa cortended to it, it made no
promisea and assumed no new burdena.
It is true it haa been kept in operation, and
haa doubtless continued and expanded ita|.
usefulness, but we fail to discover from^
not to apply to a case where it appeared, >uiything in thia record that it would not<
from a Bubaequent act of the legislature,
that a contract was made by requiring of
the benellted company the performance of
eertain acta and a formal acceptance witliln
rixty daya, otherwise the act to became
wholly inoperative. In that case, the
pany waa obligated, in conuderation et the
tax limitation atated in the act, to com
mence and do certain work within a year[
in conaideration whereof the tax waa fixed
at the rate of ) of I per cent. This, aaid
gthia court, had been a aubject of disagree-
rment, whichfwaa adjusted, additional righta
were granted, and the tax fixed as to its
rate and time of commencement, and, In
Tiew of these circumstances, it did appeal
that it was the legislative intention to make
■uch contract
the aame terms of equal obligation aa other
eontracta are made, and not to paaa a atat-
ute which it could repeal under another act
of the legislature. But here there being no
such expreaa obligaUon ahown, it is only
reasonable to aasume that the legislature
extended the immunity from taxation
Beton Hall College subject to the right of
alteration and repeal reaerved in the act
of 1846.
To all daims of eontract exemption from
taxation must be applied the well-settled
rule that, as the power to tax is an exer-
cise of the sovereign authority of the state,
essential to ita existence, the fact of its
aurrender in favor of a corporati
Individual must be ahown in language which
cannot be otherwiae reaaimably construed,
and alt doubts which arise as to the Intent
to make such contract are to be resolved
in favor of the state. Hoge v. Sicbi
D. R. Co. 90 n. 8. 348, 364, 2S L. ed. 303,
304 ; New Orleans City ft Lake R. Co. v. New
Orleans, 143 U. S. 102, 195, S6 L. ed. 121.
122, 12 Sup. Ct. Rep. 408; Wilmington t
W. R. Co. V. Alsbrook, 146 U. S. 279, 294,
38 !<. ed. 972, B78, 13 Gup. Ot. Rep. 72:
PhtBuIx P. ft M. Ins. Co. T. Tennessee, 161
U, S. 174, 179, 40 L. ed. 880, 662, Ifl Sup.
Ct. Rep. 471; Yazoo ft M. Valley R. Co. v.
Adams, 180 U. 8. 1, 22, 45 L. ed. 305, 407,
21 Sup. Ct Rqi.
have dona so except in reliance upon the
tax exemption extended to it by the legia*
lature. By the terma of that act, the state
court has held a revooable privilege waa ex-
tended, and no Irrepealabte contract waa
itered into. Bearing in mind our own ri^t
of independent examination of queetions of
thia character, we are unable to say that
tht coneluaion reached ia not well founded
in law and In tact.
It followa that the judgment of tlie atats
court muat be afDrmed.
aa c. 3. loTj
SWIFT ft COMPANY et al., Plffa. In Err.
and Appts.,
J. NOBLE HOOVER.
Bawkbuptcy «=448— AppKAi.— Fbom Sn-
PBEUE Court of Dibtbict or Colukbia
— Bankboptct Case.
Proceedings resulting in a decree ad-
judging a person not to be a bankrupt are
but steps in a btinkruptcy proceeding.
They are not oontroversies arising in those
proceedings, within the meaning of the pro-
visions of the Bankrupt Act of July 1, 1B98
{SO SUt at L. ^53, chap. 641, Comp.Stat.
1913, S! 9G0B, S600), gj 24, 2E, confining
the appellate jurisdicUon of the Federal So*
Kerne Court over the supreme court of the
strict of Columbia in bankruptcy proeeed-
ings to controveraiea arising in such pro-
ceedings.
[Bd. Note.— For other case*, bm Bankruptcy,
Dec. DIa. tt^MS.]
[No. 101.]
APPEAL from, and IN ERROR to, the
Supreme Court of the District of Co-
lumbia to review a decree adjudging a per-
son not to be a bankrupt. DlsmiBsed tar
want of Jurisdiction.
The facta are stated In the opinion.
Messrs. Arttiur A. Blniey, H. Wlnsbtp
Wheatlej, and Iiucaa P. EioTlng for plain-
tiffs in error and appellants.
Mr. Edward F. Colladay far defendaat
Applying theee principles, we are unable in error and appdlee.
jT-iTn, BthBT cMM w sm* tOPlc * KHT-HCMBBB in all KeT-NumbereJ Dtswti ft Difli
V.^OOglC
■ uie.
BWIFT * CO. T. HOOVKL
-* * Mr. Jostica Day deliTsred the opinion of
the court:
This case is brought here bjr Appeal and
allowance of nrit of error, from a decree of
the eupreme court of the District of Co-
lumbia, adjudging Eoover not a bankrupt
Counael for the appellee aJid defendant in
error nrgea that the appeal and writ be
diuniMed, but doe* not argue the qneetion
«f the juriediction of this ooort; but, as
■uch matters ore noticed b; this court
"whether specially urged by counsel or not,
aa it ccoicenis our jurisdiction, we proceed
-to consider it. Mansfield, C. ft L. U. R.
Co. ». Swan, 111 U. B. 379, eS L. ed. 482,
4 Sup. Ct. Sep. 610.
The provisions of the Bankruptcy Act
-for consideration in this connection are:
"Section 24. Hie Supreme Court of the
United States, the drcuit courts of appeals
«f the United States, and the supreme courts
«f the territories, in Tscation in chambers
mnd during their respective terms, as now
«r as they may b« hereafter held, are hereby
invested wiU) appellate jurisdiction of con*
troveruee arising in bankruptcy proceed-
ings from the courts of bankruptcy from
which they have appellate jurisdiction in
other esses.
"The Supreme Court of the United States
•hall exercise a like jurisdiction from courts
«I bankruptcy not within any organized
circuit of the United States and from the
mpreme court of the District of Columbia.
"Section 25. That appeals, as in equity
«ases, may be taken in bankruptcy proceed-
ings from the courts of bankruptcy («> the
«irenit court of appeals of the United
States, and to the supreme court of the terri-
tories, in the following casea, to wit: (I)
from a judgment adjudging or refusing to
adjudge the defendant a bankrupt; . . ."
[30 Stat at L. 553, chap. 541, Comp. Stat
1913, gS 9S08, 0600.]
The same provision as to the review by
this court of contToversIes arising In bank-
ruptcy proceedings is carried Into the Ju-
dicial Code, 9 S&2 [3S Stat, at L. 1169,
chap. 231, Comp. SUL 1013, | 1229], In
Swhich provision is made for the review In
* this court of controversies arising in*1iank-
ruptcy proceedings in the supreme court of
the District of Columbia.
It is apparent from reading these sections
of the statute that a direct appeal to this
court from the supreme court of the Dis-
trict of Columbia ie allowed only in con-
troversies arising in bankruptcy proceed-
ings, and not from the steps In a bankruptcy
proceeding. The nature of such contro-
Tersies has been frequently considered in
decisions of this court, and needs little di^
eussion now. Bnch oontroversies etnbrae*
litigation which arises after the adjudics^
tion in bankruptcy, aometimeH by Interren-
tion, the parties claiming title to property
in the hands of the trustee, or other actions,
usually plenary in character, concerning the
right and title to the bankrupt's estate.
Such proceedings as the present one, result-
ing in a decree refusing to adjudicate the
defendant a bankrupt, are but steps In. »
bankruptcy proceeding, and not controver-
sies arising In bankruptcy proceedings with-
in the meaning of the statute. First NaL
Bank v. King, 18S U. S. 202, 46 L. ed.
1127, 22 Sap. Ct. Sep. 899.
Tbe decisions of this court In Tefft, W,
* Co. T. Hunsurl, 222 U. & 114, 66 L. ed.
IIB, 32 Sup. OL Rep. 67, and Munsuri t.
Fricker, 222 U. S. 121, 66 L. ed. 121, 32
Sup. Ct. Rep. TO, are decisive of this pdnt.
In the first of these easea there was an
attempt to prosecute a direct appeal to this
court from the district court of the United
States for Porto Bico, where the proceeding
was based upon a claim in bankruptcy. It
was tiiere held that an order of the bank-
ruptcy court of Porto Bico^ disallowing the
claim, was not a controversy arising in tt
bankruptcy proceeding within the meaning
of the statute. Hie contention that such
action, based upon a claim filed In a bank-
ruptcy proceeding, was appealable tc this
court, was denied, the court saying:
"But the entire argument rests upon a
misconception of the words 'controversies in
bankruptcy proceedings,' as used in the seo-e
tion, since it disregards ths authoritative h
^instruction alQied to those words. Coder*
ArU, 213 U. B. 223, 234, 63 L. ed. 772,
777, 29 Sup. Ct. Bep. 430, IS Ann. Csa.
1008; Hewit v. Berlin Mach. Works, 104
U. S. 296, 300, 48 L. ed. 986, 037, 24 Sup.
Ct. Rep. 690. Those eases espreesly decide
that controversies in bankruptcy proceed-
ings as used in the section do not include
mere steps In proceedings In bankruptcy,
but embrace ccmtroversies which are not of
that inherent character, even although they
may arise in the course of proceedings in
bankruptcy."
It is true that in Audubon v. Shufeldt, 181
U. S. 675, 46 L. ed. 1009, 21 Sup. Ct. Rep.
735, and in Armstrong v. Fermmdex, 208
U. S. 324, 62 L. ed. 514, 28 Sup. Ct. Bep.
419, this court did review proceedings la
bankruptcy — In one esse from the District
of Columbia, and in the other from the dis-
trict court of the United States for Porto
Kico. Of the Armstrong Case, which was a
review by appeal of an adjudication of
bankruptcy, thie court, in the TeSt, W. k
Co. Case, supra, said:
"It is true, as suggested in argument
Diati... ■■■-'^-.OOt^lC
a: SUPRKME COURT REPORTER.
thai In AmiBtroDg t, Femajides, auprft.
Jurisdiction wu exerted to re*ie« tlu action
of tlie court below la % eaae vhlch «a* not
(Uieeptible of being renewed under tbe
oonetruction of tbe etktute which we have
here applied. But in that c«se there wa
ttppearimee of counsel for the appellee, and
while ft general auggestion waa made In
the argument of appellant m to the dut7 of
the court not to exceed ita jurisdiction, no
argument concerning the want of jurisdic-
tion was made. The cose therefore in
substance proceeded upon a tacit sssump-
tion o( the existence of juriadiction, — an as-
sumption which would not be not* possible
In consequence of the authoritative construc-
tion given to S S< (a) In Coder v. Arts,
Bupra, Under these circumstances, the mere
implication as to the meaning of the statute,
resulting from the jurisdiction which wa«
in that case merel; assumed to exist, is not
controlling, and the Armstrong Caee, there-
fore, in so far as it conflicts with the con-
•truction which we here give the statute,
(.must be deemed to be qualiBed and limited."
> *lt may be true that Congress has failed
to give an appellate review in proceedings
in bankruptcy from the supreme court of
the District of Columbia from a decree with
reference to an adjudication in bankruptcy,
but, as observed b the TeSt, W. & Co. Case,
that doea not give this court antharity to
assume jurisdiction not given to it by law.
It follows that the appeal and writ of
error must be dismissed for want of juris-
diction.
KANSAS CITY. JIEMPHIS. & BIRMINQ-
HAM RAILBOAD COMPANY. Plff. In
JAifES P. STILES.
CoffenrunoHAi. Law «=>43<2)— SxATUTBa
— Wao Mil QUESTIOIT Validitt,
1. Railroad corporations which have
constituted UieRiselves a consolidated corpo-
ration under Ala. Code 1SB6, | 1G83, may not
— constitutional objections excepted — com-
plain of the terms under which they volun-
tarily invoked and received the grant of
corporate existence from the state.
[Ed. Note.— For otber cans. iH CouitltuUonal
Law, Cent. DlK. I 41; Dae. Dig. iS=34S(l).]
Commerce <S=>69 — Conbtitutionai. IJaw
«=22&(1). 283— Dub Pbocesb of Law —
Equal Pbotection of tqe Laws— Com-
UERCB— State Taxation of Consoliuat-
XD Railway Coufant.
2. The state of Alabama, In Imposing
tbe annual franchise tax exacted from do-
mestic corporations upon a consolidated
railway corporation existing by virtue of
the consolidation under concurrent acts of
the states of Tennessee, Mississippi, »nd
Alabama, of three independent and distinct '
railroad corporations created by, and for- '
merl; operating aolely within, the reaper
tlve state* named, and In measuring suck
tax by the entire eapKa) stock of the con>
solidated corporation instead of measuring
it by the amonut of «a{)ital empWed in
the state, as is dona In Uie case of foreign
corporations, violated neither the due proo-
esa, commerce, or equal protection of tha
laws clauses of the Federal Constitution,
where the Alabama consolidation statute ex-
pressly provided that the consolidated cor-
poration shall in all respects be subject t*
the laws of the state as a domestic corpora
tlon.
[Ed. Nets.— SNjT other oaaee. se* Commerce
CeaL DU. U IW, lU-lU ; Deu. Uls. ^sui; Uuu-
■tlcutlodal Law. CeoL DIf. "' — "■
M$l Dm. Die «=322>U). 1
IN EETtOR to the Supreme Court of the
Stats of Alabama to review a judgment
which afnrmed a judgment of the City Court
of Birmingham, in that state, sustaining the
demurrer to a complaint in an action by
a consolidated railway corporation to re-
cover hack a tax alleged to have been wrong-
fully collected. Affirmed.
See same case below, 102 Ala. SS7, 63 So.
10 IS.
The facts are stated In the opinion.
Messrs. Forner Jobnalon and W. P.
Erana for plaintiff In error.
Mr. William D. Martin, Attorney Gen-
eral of AUhuna, and Mr. lAtwrenee E.
Brown for defendant in error.
Mr. Justice Day delivered the opinion of*
the eourt:
The Kansas City, Memphis, k Birming-
ham Railroad Company, plaintiff in error
herein {hereinafter called the railroad com-
pany), filed its complaint in the city court
of Birmingham, Alabama, against James P.
Stiles, probate judge of Jefferson county,
Alabama, whereby it sought to recover sun-
dry sums of money, aggregating $2,434.40,
paid to Stiles by virtue of the provbions of
S 12 of an act of the Ahtbama legislature, en-
titled, "An Act to Further Provide tor tha
Kevenues of the State of Alabama." By thia
act it Is provided that corporations organ-S
ized under'the laws of Alabama ahall payr
annual franchise tax as follows: whera
the paid-up capital stock does not exceed
$50,000, $1 per thousand of such paid-up
capital stock; where paid-up capital stock
is more than $E0,0OO, and up to $1,000,000,
$1 per thousand on the first $50,000, and
SO cents for each thousand of the re-
mainder; where paid-up capital stock ia
more than $1,000,000, and up to $S,000,DO%
$1 dollar per thousand on the Qrst $60,000.
I* topic ft KET-NUMBBR In all Ke7-Nunb«r*« D
"WWgic
1S10.
KANSAS cnr, H. A B. B. CO. T. Bnus.
ftnd 60 eenta per thmuuid for tha next
tS50,000, uid 2S eenta per thoiuand for
the Temftinder; where he paid-up eApit&l
stock exceeds 95,000,000, |1 per tboufland on
the flret (60,000, 60 eenti per tliouuuid
the next $950,000, 25 cents per thouBand
on the next $4,000,000, uid 10 cente per
Ihouaaod on the remainder; and that corpo-
r*tiona organized under the law* of any
other state, and doing busineu within the
state of Alabama, shall psf annually fran-
chise tax SiS above, based, however, on thi
«^ual aJnount of capital employed in the
■tate of Alabatoa. The act also contains
pioviaious not relevant to thle action and
not necesssij to be set forth here.
Tha railroad company is a consolidated
corporation, existing by virtue of the eon-
■olidatioD, under concurrent aota of the
states of Tennessee, Mississippi, and Ala-
bama, o{ three independent and distiuot rail-
road corporations created by and formerly
operating solely within the respective states
named. Aa rigards this OMisolidatJon,
plaintiff avers —
"(hat it is « oonsolidated corporation,
made up and consisting of the consolidation
•f three dietinct and separate corporations,
under tha following circumstances: A rail-
road corporation organized and existing
solely under the laws of the state of Ten-
nessee acquired, conatrueted, owned, and
operated all of that part of plaintiff's line
and railway situated within the state of
Tennessee; a separate and distinct rail-
"road corporation, organized and existing
• aolelj under the laws of the state of Misais-
rippi. acquired, constructed, owned, and
•perated all that part of plaintiff's line and
railway situated within the state ol Mlasls-
aippi; and a separata and distinct raJlroad
eorporation, orgsnized and existing solely
onder tha laws of the state of Alabama, ac-
quired, constructed, owned, and operated all
that part of plaintiff's line and railway sit-
nstcd within the state of Alabama. Plain-
tiff aTers that aaid separate railroad eor-
porations, being desirous of operating said
distinct and separately owned properties at
a singla system, for the conduct of the
business of a common carrier in interstate
commerce, aa well as the continuation of
intrastata commerce within said several
states, before the period mentioned or in-
Tolved herein, and by virtus of concurrent
or contemporaneous laws or special acts of
■aid aeverei states, including the states of
Tennessee and Missisaippl, aa wall as the
■tat« of Alabama, consolidated themselves
Into a corporation known as Kansas City,
Memphis, t Birmingham Railroad Company,
the plaintiff herein, and, in pursuance of the
laws of each of Mdi states, daly filed there-
in agreements and Instnunents consolidat-
ing said companies, and complying with tha
laws of each of said states authorizing tha
same. And plaintiff avers that by said
consolidation tha shares of atodc of saJd
several companies were surrendered bj the
holders thereof, and In Hju thereof there
were issued the shares of stock of said
consolidated company, the plaintlfT herein,
being the capital stock of plaintiff issued
and outstanding aa aforesaid. Plaintiff fur-
ther avers that tha capital stocic on which
said franchise tax was eetimated and exact-
ed as aforesaid was and is the capital stock
Issued and outstanding under the circum-
stances aforesaid, although leas than one
halt thereof was Issued in lieu of the stock
of or represents the property or assets or
business of tha Alabama corporation which
became a conatituent of the plaintiff by^
connolidation aa aforesaid." ^
* The entire capital stock of tha consolidat-*
ed railroad company amounted to $e,S7G,-
000, and it was upon this entire amount
that the company was assessed. By this
action the railroiad company seeks to re-
cover the full amount of the franchise tax
exacted upon that basis, and contends that
in any event It ahould have been assessed
only upon that part of the capital employed
by it in the atata of Alabama.
The railroad company averred, if it waa
required to pay the franchise tax in ques-
tion upon its entire capital, that it would
be paying another and different rata of tax-
ation, or another and different amount of
franchise tax, from that which is required
of like corporations doing business in Ala-
bama, contrary to the provision of the 14tk
Amendment to tha Federal Conatitutioa
that no state shall deny to any person with-
in Its jurisdiction the equal protectlcn of
Ita laws; that the enforcement of the act
by subjecting to Its operation tha railroad
company'a property in other states constl*
tuted a taking of its property without due
process of law ; and that said act imposed
a direct burden upon interstate commerce
requiring it to pay. In addition to all
other fees and taxes provided by law, a tax
upon its capital stock for tha right end
Ijrivilege of transacting and carrying on Its
interstate business as a common carrier,
in violation of clause 3 of f 8, article I. of
the Federal Constitution.
A demurrer was Sled to thia complaint,
which demurrer waa sustained. Upon ap-
peal to the supreme court of Alabama, this
Judgment was afGrmed (162 Ala. 6S7, 68
So. 1018 ) , and a writ of error brings the ac-
tion to this court.
The consolidated company was formed,
so far ss the state of Al»jwm« i* eoneemcd.
,A_^OOglC
S7 BDPBEUE OOUBT REPORl'EB.
under | 1688 of tin AIb >>»"■■ Code of 1888,
which providea In ■nhataae^ ea followa:
Tliet whenever tha Unci of kny two or more
rftilroada chartered under the U,wa of tb&t
HOT utj other ataXe, which, when cranpleted,
Pmky admit the pasiage of burden or^paa-
cenger cars over any two or more at luch
roads continuouBly wiUiout break or inter-
ruption, such companiea are anthorUed be-
fore or after completion to conaotldate them-
selves iiito a single corporatioDj^in tha man-
ner following; The directors of soeh
corporations may enter into an agreement,
prescribing the terms and conditions thereof,
mode of carrying into effect, name, number
«f director!, etc, and snch new corporation
shall poBBesB all the powers, rights, and
franchises conferred upon the two or more
eorporatlone, and shall be nbject to all th«
restrictionB, and perform all Uie duties,
imposed by such statute. Provlelon is also
Mi»d« tor ratification of such consolidation
by the stockholders, after which ratification
the agreement ia deemed completed, aa to
each corporation. It la also provided that
"every such new corporation so formed shall
keep an office in the atate of Alabama, and
be in all respects subject to the laws of the
state of Alabama aa a domeatic eorpoia-
tion." The corporation is to be deemed con-
solidated when a copy of the agreement la
filed with the secretary of atate, and aft«r
the election of the first board of directors
the property and franchises of each corpo-
ration shall be vested in the new corpora-
tion, and It shall be subject to the liabilities
of its integral part«, aa tf inch debta had
been incurred by it.
It wUI be noted that thU sUtuta, which
la a grant of corporate rights from the
atata of Alabama to the consolidated com-
pany, contains the ezpresa provision that
■uck company shall in all respects be snb-
ject to the laws of the state of Alabama aa
a domestlo corporation. Applying | IE of
the statnte, the Alabama auprenia court baa
held that tba railroad company ia a cor-
poration organized under the laws of that
atate, and, aa such, aubject to the franchise
tax imposed by that section of the atatute.
TIb Federal questions (which are alone
within the jurisdiction of this court) are to
ba determined npon this construction of th«
T* atate statnte by Ita highest court.
• 'When the companiea eompriaed In Oils
consolidation aought to arail themaelvea of
tha laws of Alabama, they were asking a
privilege and rig^t which, aubject to tha
limitations of the Federal Constitution, was
within the authority of the atate. This
principle was succinctly stated In Ashley v.
Ryan. 163 U. S. 430, 442. 88 L. ed. 773, 777,
4 Intera. Cool B^. 864. 14 Sup. Ct Sep.
886;
"Hn* It Um question at issue affected by
file fact that some of the constituent ele-
ments which entered into the consolidated
company were corporations owning and
operating property in another state. Tha
power of corporations of other statea to
become corporations, or to constitute them-
selves a consolidated corporation under tha
Ohio statutes, and thus avail of the rights
given thereby, is as completely dependent
on the will of that state as is the power
of its Individuai citizens to become a oorpo-
rata body, or the power of corporations of
its own creation to consolidate under ita
laws. Bank of Augusta v. Earle, 13 Pet.
610, 10 X* ed. 274; Lafayette Ins. Co. t.
French, 18 How. 404, 16 I>. ed. 4G1; Paul
V. Virginia, 8 Wall. 166, 181, U L. ed.
357, 360."
This doctrine has been affirmed stnce^
Louisville & N. R. Go. v. Kentucky, 161
U. S. 677, T03, 40 L. ed. 640, 860, 16 Sup.
Ct. Bep. 714, and previous eases in thia
court tlierein cited; Interstate Consol. Street
R- Co. V. Uaasachnsetts, 207 U. B. 70. 84.
62 L. ed. Ill, 114, 28 8up. Ct Bep. 86, IS
Ann. Cas. 656.
The railroads comprising this consolidai-
ti«n entered upon it with the Alabama stat-
ute before them and under Its conditiwiB,
and, subject to conatltutional objections aa
to its mfoTcement, they cannot ba heard
to complain of the terms under which they
voluntarily invoked and received tha grant
of eorporate axlatanca from tb« state of
Alabama.
The speelflo objections based upon tb*
Federal Constitution remain to be noticed.
It ia aald that the company is deprived of
the equal protection of the laws, this con-
tention being based npon tha fact that
domestic corporations, operating only with-
in the state, are required to pay the taz^
upon property within the state, and forelgB^
■eorporations are taxed only upon the basis of*
property within the state. To support thia
contention as to denial of equal protection
of the laws, the company relies principally
upon the decision of this court in Southern
B. Co. v. Greene, 216 U. S. 4Q0, B4 L. ed.
636, 30 Sup. Ct. Rep. 287, 17 Ann. Caa.
1247. In that case, a foreign corporation,
complying with the laws of Alabama, en-
tered upon buainese within the state, paid
both license and property taxes imposed b^
the laws of the state, and when It waa at-
tempted to impose npon it another tax for
tha privil^o of doing business In the state, a
business in all respects like that done by
domestic eorporations of a similar charac-
ter who were not subjected to the additional
A^^OOglC
»I6.
LOUIBVnJX A N. B. 00. T. UNITED STATES.
tex eompWiied of, tt oontended ibut it wu
doitod eqnal protection ot tbo law, uid thia
«oitTt Kt hold.
ThHt CAM is rMdiljr dirtingutdiable from
tlie on« now under coniiderBticoi. Here the
state impoaes the Iranchlae tax eqaally
upon all of ita eorporationa, eonaolidated
and otherwise. The fact that a whoUf lu-
tnatate corporation maj' own no property
oatalde o( the itate, while the eonaaIldat«d
fomfaaj doea, preaente no ease ol arbitrary
clasBiGcatioa. In both cases, the franchise
tax is based upon a percentage of the capi-
tal stock. There la no denial of equal pro-
tection of the laws because a state may im-
poae a different rata of taxation upon a
foreign corporation for the privilt^ of do-
ing biuiness witliin the itata than it appliee
to its own oorporationa upon the franchise
which the state grants in cresting them.
It is urged that this tax is void because
it ondertakea to tax property beyond the
juriadiction of the state, and impoaee a di-
rect burden upon interstate comnwree. 01).
jectlons of thie character were ao recently
discusaed, and the prarions eases in this
oourt considered, in Kansas City, Ft. B. k
M. R. Co. V. Botkin, £40 U. S. S2T, 00 L. ed.
617, 36 Sup. Ot Kep. 2S1, Ihat it would be
superfluous to undertake extended discussion
of the subject now. In that case, after a
Sfnll review of the prerions deeisions In this
Teotiit, It was held that each caae^must de-
pend upon Ita own ciroumstances, and that
while Uie state could not tax property be-
yond ita b<»'ders, it might measure a tax
within its authority by capital stock which
In part repreaentsd property without the
taxing power of the state. As to the objec-
tion based upon the dna process elanae of
the Constitution, wa think that principle
controlling here. There is no attempt in
this ease to levy a property tax ; a franchise
tax within the authority of the state la in
part meaeured by the capital stock repre-
■enUng property owned in other states.
Tbe tax is not of the character con-
demned In Western U. Teleg. Co. t. Kansss,
EIS U. S. 1, M L, ed. SM, 30 Snp. Ct. Kep.
190, and kindred cases. In the latter csum,
a tax of large amount was impoeed upon
a foreign corporation engaged in interstate
commerce, for the prlTilegs of doing local
business within the state. Under the cir-
etunstanees therein disclosed and the char-
acter of the basiness Involved, this court
held that the atatut* was in sulMtanee an
attempt to tax the ri^t to do interstate
busineas, and to tax property beyond the
ecmlines of the state, and was Uierefore void.
Here, a franchise tax is levied upon a cor-
poration c<HlsolidBted under the laws of the
atate by Its own acceptane* ef that law in
iDoorporating under It.
So of the objection that the tax imposes
a burden upon interstate commerce, the tert
of validity recognized in previous cases and
repeated in Kansas City, Ft. S. & M. R.
Co. V. Botkin, mpra, is the nature and char-
acter of the tax imposed. The state may
not regulate interstate commerce or impose
burdens upon it; but it is authorised to levy
a tax within its authority, measured by
capital in part used in the conduct of suclk
commerce^ where the circumstance* are such
as to indicate no purpose or uaceasary effect
in the tax imposed to burden commerce ot
that character. In the present case, the.
frandilse tax is imposed upon the capital^
stock of a oorporttioa.* consolidated under'
the state law, and engaged In l>oth inter-
state and intrastate commerce.
We find nothing in the amount or charac-
ter of the tax which makes It a burden upon
interstate commerce, and so beyond the au-
thority of the state to impose. It results
that the judgment of the Suprenw Court ot
Alabama must be affirmed.
aa u. 8. m
LOUISVIU-E k VASHVTLLE TtAILHOAD
COMPANY et al., Appta.,
UNITED STATES OF AMERICA et aL
Oabbubs «=a33 — Iktebstatk GouiOBCE
CoiotiBsioN — PowEEa — CoMPBLLiNa
SwiTCHiMo Slavics — Uhx of TsnuinAi.
Fagiuties.
Two lallway carriers who are Joint
owners of a considerable portion of the ter-
minals in a certain city used by them In
common, and who manage them as a whole
and deal with them in the same way as they
would if their title were joint in every
part, may not be compelled by the Inter-
state Commerce Commtesion, under the
equal facilities requirement of the Act of
February 4, ISS7 (S4 SUt. at L. 3S0, chap.
104, Comp. Stat. 1013. | SGSe), S S, re-
iQieoting uie Interchange of traiGe, which ia
qualified by the proviso that it "shall not
be construed as requiring any such com-
mon carrier to give the use of its trsclcB
or terminal facilities to another carrier en-
gaged in like buBinesfi," to discontinue as
discriminatory their practice of refusing t«
switch interstate trafflo-to and from the
tracks of a third carrier entering that ci^
on the same terms which they contem-
poraneously maintain with respect to simi-
lar shipments to and from their own re-
spective tracks in said city, although,
instead of each carrier doing its own switch-
ing over the termioalB used in common, they
switch jointly through a sintjle agency for
both, eadi paying substantially aa It would
If it did its own work alone, since what Is
done ia not reciprocal switching, but the
>• topic A KBT-NUUBfiR In all KaT-Nnmbsred Di(eata A ladmes
.gic
n S7 SDPEBUB COUBT BEPOBTEB. Oor. Tku,
DM of K Joint tenniiul In the n«tar«l mi I genertl pnbllo b^ not Icaa than thirtj i±ja'
pnctioil wajr. Uling uid posting In the mumar pnaarlbetl
in I S of tfao Act to Begulftta ComnMTce,
and thereafter to maintain and apply to the
twitching of interstate trafSe to and fromg
tbe'traeka of the Tenneaeee Central Bail-*
road Company at said Nashville, rates and
ohatges which ihall not be different than
thej contemporaneouslf maintain with re-
spect to similar shipments to and from their
respective tracks in said city, as said rela-
tion is found by the Commission in its said
report to be nondiscriminatory." The tp-
pellanta etmtend as matter of law that the
relations between them exclude any eharga
of discrimination Ukat is based only upon a
refusal to extend to the Tennessee Central
road the advantagei that they enjoy.
The order is based apon discrimination
and ii limited by the duration of the inter-
change between the appellants found to be
discriminatory, and the question argued by
the appellanta is the only question in the
case. Therefore it la necessary t« eonstder
relations between the appealing railroads
that were left on one side in LouisTille A
N. R. Co. T. United States, S38 U. S, 1, IS,
59 h. ed. 11T7, 11S3, 35 Sup. Ct. Rep. eos.
The LoulaTille A Nash* Hie traversM
NashTille from north to south, the Nash-
ville k Qiattanooga from weat to aonth-
east, the Tennesaee Cantral from northwest
to east. They all are oompetitors for Naeh.
Tills traffic In 1872, contemplating a poa-
sible Union Station, the Louisville A Naah-
Tille acquired trackage rlghta from tha
NaahTilla ft Chattanooga that connected ita
northern and southern terminala in the city
(previously separate), and the terminal «(
the Nashville k Chattanooga. It bow owns
71 per cent of ths stock of the latter. Ib
1S93 these two roada caused the appellant
Terminal Company to be organized under
the general laws «f Tennesaee, with tlw
right to let ita property. The Louisville ft
Nashville owns all the stook of this com-
pany. In 1S98 the two roads respactively
let to the Terminal Company their soveral
properties in the neighborhood of ths origi-
nal depot grounds of the Xaihvills ft Chat-
tanooga for SS9 yoara, and shortly aftar-
wards ths Terminal made what is t«nnea)H
□f ths same, and subsequently ac-*
quired property to ths two roada jointly for
a like term. It corenanted to constmet all
necessary passenger and freight buildinga,
tracks, and terminal facilities, the roads to
pay annually aa rental 4 per cent of the
actual cost, and to keep the properties In
repair. The Terminal Company then made
a contract with the city for the c<»iBtruction
of a Union Station, the two roada guar-
APPEAL from the District Court of the
Unlt«d States for the Middle District
of Tennessee to review a decree which, di»-
misHing the petition, denied a preliminary
Injunction against the enforcement of an
order of the Interitato Commeros Commis-
aion. Reversed. Injunction to Issue with-
out prejudice to furUier orders by the Com-
miasion.
See same case below, 227 Fed. S6S, 27S.
The facts are stated in tho opinion.
Messrs. Edward S. Jou«it, H. L. Stone,
W. A. Colston, Claude Waller, John B.
Keeble, R. Walton Moore, and Frank W.
Gwatbmey for appellants.
Auistant Attorney Qeneral Vndenvood
lor the United SUtei,
Messrs. Charles W. Ncedham, Joseph
W. Folk, and Edward W. Hines for the In-
terstate Commerce Commission.
• * Mr- Justice Holmes deliversd the opin-
ion of the court:
This is an appeal from a decree, made by
three judges sitting in the district court,
which denied a preliminary injunction
against the enforcement of an order of the
Interstate Commerce Commission and dis-
missed the appellants' petition. £27 Fed.
268, Id. 273. See S3 Inters. Com. Rep. 711,
for the report of the Interstate Commeroe
Commission. Ths order complained of re-
quired the appellants, the Lonisvllle ft Nash-
ville Railroad Company, the Nashville,
Chattanooga, ft St. Louis Railway, and the
Louisville ft Nashville Terminal Company
to desist and abstain "from maintaining a
practice whereby they refuse to switch in-
terstate competitivs tralSe to and from the
tracks of the Tennessee Central Railroad
Company at Nashville, Tennessee, on the
same terms as interstate noncompetitive
traflic, n'liile interchanging both kinds of.
said troSic on the same terms with each' '
otiipr, as said practice is found by the Com-
mission in its said report to be unjustly
discriminatory." It was further ordered:
"Tliat the Louisville ft Nashville Railroad
Company, Nashville, Chattanooga, ft St.
Louis Railway, and Louisville ft Nashville
Terminal Company be, and they are hereby,
notiflpd end required to establish, on or be-
forr Mny 1, 1915, upon notice to ths Inter-
state Commerce Commission and to the antying the perfc
and the
la topic A KBT-NUMBBR In all K*r-Namb«r«d Dl>«tB ft Isdane
Mie.
LOUISVILI^ Jt N. B. CO. t. UNITED STATES.
tloB WM eon^leted in 1900; Uie tncVa con-
BMttng witb thow of the two roadi, but not
iriUi thoM of tlie TenneBaee Central. Tlie
TerminaJ Company, u part of the improve-
inenta, purehaBcd large additional proper-
tie*, the tito roada advancing the fundi,
mad the eompanj exeeuting a mortgage for
93,000,000 guaranteed by the roada. $2,-
C3S,000 of the bonds were iiaued and the
proeeeda uaed to repay the roads.
On Auguat 15, ISOO, the two roada, at
that time being the only two roada enter-
ing NaahTille, made the arrangement under
which they since have operated. They made
an unincorporated organization called the
Naahrllle Terminale which waa to maint«ln
and operate the property let to the two
roads jointly by the Nashville Terminal
Company and alao 6.10 milea of main track
mad 23.80 ullea of aide track contributed
by the I«uiaville Sl Naahville, and 12.15
vilee of main and 26.37 milea of aide tradi
contributed by the Naahville 1 Chattano<^a.
The agreement between the roada provided
• board of control consisting of a auperin-
tcudent and the general manager! of the
two roada, the superintendent having the
Immediate control and appointing under of-
ficers, etc. The total espenae of mainte-
nance and operation ia apportioned monthly
between the two roada on the baaia of the
total number of ears and locomotivei han-
dled for each. There is no switching
charge to or from locations on tracks of the
KaahvUla Terminala within the switching
2 limits on freight from or to Naahville over
* either road. The ^Vnneasee Central tracks
BOW connect with those of the Naahville Si
Chattano<^a at Shops Junction, in the west-
ern section of the city, within the switeb-
ing iimita, and with those of the Louiavllle
ft Naahville at Vina Hill, outaide the awitcb-
ing Iimita, and Juat outaide the city on the
It diould be added that In December,
1002, a further agreement waa made pur-
porting to modify tb* lease to the railroads
jointly by excluding from it the property
that came from them respectively, and re-
mitting the roads to tbelr eeveraj titles as
they stood before the lease, subject only to
the mortgage, with some other dianges that
need not be mentioned. This partial change
from joint tenancy baolc t« aeveral titles
does not affect the substantial equality of
the contribution of the two roada, and the
joint tenure of the eonatderable property
purehased by Uta Terminal Company waa
left unchanged.
AnoUier matter that seema immaterial to
the ease before us Is tliat, since the connec-
tion between the Tenneaaee Central and the
appelant roada, the latt«r have interchanged
noncompetitive trafflo with the former, but
the Louisville & Naahville haa refused to
switch competitive traffic and coal except
at Ita local rates, and the Naahville & ChaU
tanooga haa refused to switch it at all. The
switching of coal was dealt with by this
court In Louisville ft N. R. Co. v. United
SUtes, 238 U. 8. 1, 69 L. od. II77, 35 Sup.
Ct Rep. 6B6. But the caae now before ui
is act concerned with the effect of the car-
riers having thrown the terminals open to
many branches of traffic (233 U. S. IS).
It arises only upon the question of the
discrimination supposed to arise from the
appellants' relationa to each other, aa w«
have explained, — a question grazed but not
hit by the decision in 238 U. S. Bee p. IB.
If the intent of the parties or purpoae of
the arrangement was material in a caae like
this, obviously there was none to discrimi-
nate against the Tennessee Central raad.M
That*roBd did not enter Nashville when tlw*
plan waa formed, and the two appellanta
had a common iutereat, although competi-
tora,— an interest that also waa public and
in which th* city of Nashville shared. By
S 3 of the Act to Regulate Commerce as it
now stands, the act "shall not be construed
as requiring any sueh common carrier to
give the use of its tracks or terminal facili-
ties to another carrier engaged In liks busi-
ness." [24 Stat, at L. 380, chap. 104, Comp.
6UL 1913, I 8G66.] Therefore if either '
carrier owned and used this terminal alone,
it could not be found to discriminate against
the Tenneaaee Central by merely refusing
to switch for it, that is, to move a car to
or from a final or starting point from or
to a point of interchange. We conceive that
what ii true of one owner would be equally
true of two joint ownera, and if vre are
right the question is narrowed to whether
that ia not, for all practical purpoaes, the
position in which the appellants stand.
They do still hold jointly a eonatderable
portion ol ths terminals, purchased with
their funda. They manage Uie terminala as
a whole, and. In short, deal with them in the
same way that they would if their title waa
joint in every part. Of course they do not
own their respective original tracks jointly,
and It ta matter for appreciation that per-
haps defies more precise argument whether
the change back to a several tenure of those
tracks changed the rights of the parties.
We cannot aee In this modification of the
paper title any change material to the point
in hand. Neither road is paid tor the use
of its tracks, but the severally owned and
the jointly held are brought into a aingle
whole by substantially equal contributions
and are used by each as occasion requires.
nia fact principally relied npon to u^
,A_^OOglC
ST SUPREME OOUET REFORTEB.
Oat. TCBK,
hold the order o( the Comiatsiion Is tbiX,
instead ef each Toad doing iU own awit«b-
iug over the terminals lued in eoiniaon, they
•witch jointly; and It ia uid that there-
fore each ifl doing tor the other a aerrica
that It cannot refuse to a third. We can-
S! not believe that the righta to their own ter-
* minala, reserved by*the law, are to be de-
feated by 5Dch a distinction. We taJce It
that a aeveral uae by the roada for thia pni-
poae would open no door to a third road.
If the title were atrlctly joint throughout
in the two roada, we can aee no ground for
prejudice in the adoption of tha more
economical method of a single agent^ for
botha each paying luhBtantially aa it would
If it did ita own work alone. But, aa we
have indicated, a large part of the tarminala
is joint property in aubttauce, and the
whole la held and used as one eoncem.
What la done aeems to us not reciprocal
■witching, but the uae of a joint terminal
In the natural and practical way. It la ob-
jected that, upon thia view, a way la opened
to get beyond tha reach of the atatute and
the Commiaaion. But the very meaning of
a line in the law ia that right and wrong
touch each other, and that anjione may get
as close to tiie 11ns as he can U he keeps
on the light aide. And further, the distinc-
tion seems pretlj plain between a bona
fide joint ownership or arrangement so
nearly approaching joint ownership as this,
and the grant of facilities for the inter-
change of traffic that should be extended to
others on equal terms. The joint outlay of
the two roads has produced much more than
« Bwitdiing arrangement; it has produced
a, eommOD and peculiar Interest In the sta-
tion and tracks even when the latter are not
jointly owned. In onr opinion tiie order
was not warranted by the law; but, in orer-
tumlng it upon the single point diacuased,
we do so without prejudice to the Commis-
sion's making orders te prevent the sppel-
lants from discriminating between etaupeti-
tlva and noncompetiUva goods, so long aa
thej open their doors to the latter, the ap-
pellants being entitled to reasonable com-
pensation, taking into account the ezpenae
of the terminal that they have built and
paid for.
Decree reversed. Injunction ta tssoe,
without prejudice to further orders by ih»
loteratate Commerce Commiaaion aa ^ted
In the opinion.
• * Ur. Jnsttoe PltneT> with whom eenearred
Ur. Justice Dnj, Mr. Justice Brandels,
Ud Ur. Justice Clarke, diaaenting:
I am unable to eonenr in tha opislen of
tha eomrt, and. In view of tha far-rcftching
•ffeet of ths decision up^
Intereata of the country, deem it a du^ to
aet forth tha grounds of my dissent.
The Interstate Commerce Ccanmission
found as matter ol fact {33 Inters. Com.
Rep. 78, 84); 'TDetendanU [the two rail-
road companies, now ai^llants] unques-
tionably interchange traffic with each other
and withont distinction between eompeU-
tive and noncompetitire traffls. The ears
of both roads are moved over the individual-
ly owned terminal tracks of the other to
and from industriea on the other, and both
linea are rendered equally available to in-
dustriea located ezcluaively on one. The
movement, it la true^ ia not performed im-
mediately by the road over whoae terminal
traeks it is performed, but neither is it per-
formed immediately by the road whoae eaiv
are moved. It is performed by a joint agent
for both roads, and that l»lng so, we an
of the opinion that the arrangemsnt is es-
sentially the same aa a reciprocal switdi-
iug arrangemeut, and accordingly consti-
tutes a facility for tha interdtange of trafflo
between, and for receiving, forwarding, and
delivering proper^ ta and from defendants'
respective lines, within the awaniTig at the
second paragraph of | S of the act. [Intsr-
state Commerce Aet.] . . . We eannot
agree with defendants' eontentioB that they
have merely exchanged trmckaga right*.
But, avan if they have, we think ths term
'facility,' as used in | 8 ol the act, also in-
cludes reciprocal trackage rights over ter-
minal tracka, the conaequenoea and advan-
tages to ahippers being identical with thoss
(.coming from redprooal switching arrange-
The dlstrlet court, three judges sitting*
( 227 Fed^ESS, 209 ) , altw oarefnl eoQsider^-*
tion, reached the foUowing oonelnsleost
"The operation jointly carried on by the
Louisville dt Nashville and the Naahvilla *
Chattanooga under the Terminals agree-
ment is not a mere exchange of trackage
righta to and from Industries on their re-
speetiva lines at Nashville, under whicb
each does all of ita »wn awitohlng at Naah-
*illa and neither awltohes for the other. It
is, on the eontrary, in substanee and eftee^
an arrangement under which the entirs
switching service for eaeh railroad over tha
joint and separately owned tracks is per-
formed jointly by both, operating as prin-
cipals thron^^ the Terminals aa their joint
agent, each railroad, as one of such joint
principals, hanee performiiv through suck
agency awitehing aarfies for both itself and
the other railroad. . . . And, viewed in
its fundamental sapeot, sad considered witb
re(ere>ee to its ultimata affect, we entirely
concur in the ooneluslon of the CMnmisaioa
that saoh Joint MribUng c^entiaa is •»
A^^OOglC
MIC
tOCISVn-LE » N. R. CO. T. UNITED ffTATBa
Motiallr the MUDO aa • reciprocal twlteUng
ainagwneat,' constituting a facility for the
iBterdiaiige of tralBc behreen the line* of
the two railroads, within Qie meaning of
the second paragraph of g S of the Inter-
•tate Commerce Act. That each railroad
doea not separately switch for the other,
but that such switching aperations are car-
ried on jointly, ia not. In oar opinion, ma-
teriaL If it were, all reciprocal switching
operations carried on bj two railroads at
any eonnecting point of several carriers
could be easily put beyond the reach of the
act, and tta remedial purpose defeated, by
the simple device of employing a joint
agency to do such reciprocal switching. The
contra Hi ng test of the statute, however.
Ilea in the nature of the worlc done, rather
than in the particular device employed or
the name* applied to those engaged In it."
With these rlawa I agree. Elaborate
argument ia made ia behalf of appellants
In the effort to show Uiat the method of
^•perating the Nashville Termlnali Is not
• "reeiproeal switching" within a eertain nar-
row definition of that term. This la an im-
material point; the real qnestion being
whether it conatitutea a facility for the In-
terchange of traffla between the respeetire
lines of appellanta, and for the receiving,
forwarding, and delivering of proper^ be-
tween connecting linea, within the meaning
«f I S of the Interstate Commerce Act
(chap. 104, £4 SUt. at L. S80, Comp. SUt.
1913, I B566), so that it must be rendered
t* the patrons of the Tennessee Centra!
upon equal terms with those of the Lonis-
vUle k MaahvUle and the Naahvllle t Chat-
tanooga. I cannot doubt that it bears this
Aaracter.
The section reads as follows t "Sec. S.
nat it shall be unlawful tor any common
carrier subject to the provisions of this act
te males or give any undue or unreasonable
preference or advantage to any particular
peraon, company, firm, corporation, or local-
ity, or any particular description of traffic,
in any respect whataoever, or to subject any
particular person, company, firm, corpora-
tion, or locality, or any particular descrip-
tion of traffic, to any undue or unreasonable
prejudice or disadvsutage is any respect
whatsoever.
"Every common carrier subject to the pro-
vlslona of this act shall, according to their
respective powere, afford all reasonable,
propei, and equal facilities for the inter-
dange of traffic between their respective
lines, and for the receiving, forwarding, and
delivering of passengers and property to and
from their several linea and thoaa connect-
ing therewith, and shall not discriminate In
tkair mtM and ehargea between such eon-
ST B. C— L
' neeting lines; Imt this shall mot be eoa-
strued as requiring any such oommon car-
rier to give the use of its trades or terminal
facilities to another carrier engaged in like
businees."
It ia clear, I thlnlc, that In the second
paragraph of thia section the word "facill*
ties" Is employed in two meanings. Whera
it flrst occurs, it means those acts or opera-
tions that facilitate or render easy the in-S
terehange of trafficj *while. In the final*
clause, "^ give the use of Ita tracks or
terminal facilities," the words "terminal
facilities" are employed in a figurative sens*
and aa equivalent to '^munal properties."
This is obvious from the assodatioa togeth-
er of traeka and terminal facilities as things
subject to use. And the same words are
used In the same senss in the 1906 amend-
mtat to g I of the act (chap. 3G91, 34 SUt.
at L. 684, Comp, SUt. IfllS, | BSSS), bj
which the definition of the term "railroad"
waa expanded so as to include "all switdes^
qiors, trscks, and terminal facilities of
•vary kind used or neeeasary in the trans-
porUtion of the persons or proper^ deaif
nated herein."
There is nothing in the order of the Com-
mission now under review that requires a^
pellanU or either of them, or their agency,
the Nashville Terminals, ta give the use of
tracks or terminal facilities la the Ten-
nessee Central, either physically or in any
other sense, within the meaning af the find
clause of I 8. It requires tbem merely ta
Interchange tntersUte competitive traffic to
and from the tracks of the Tenneasee Cen-
tral on the same Urma aa interstate non-
competitive traffic, so Itmg as tkey intv-
change both kinds of traffic with each other
on the same Urmsi and also to eaUbllsh
and apply to the switching of intersUU
traffic to and from the Tennessee Central
rates and charges not different from those
that they contemporaneously maintain with
respect to similar shIpmenU as between
themselves. Dndoubtedly the expenditures
made by appetlanU In the construction of
the joint terminal property, so far as that
property is used In interchange switching,
is an element to be taken into consideration
in fixing the amount of the snitching
charges. And the same is tme with respect
to the value ot the separately owned tracks
of appellanto, so far aa necessarily used In
mutual Interchangea.
The practice of the Louisville ft Nashvills
and the Nashvills ft ChatUnooga in refusing^
to Interchange 'competitive on the sams
terms as noncompetitive traffic with the
Tenneasee Central, while interchanging botk
kinda of traffic aa between themaelvea, waa
foand by the OoBmlasion to be andnly U^
A^iOOglC
IT SOPBUB OOUBT KEPOBTKK.
^rfnihuftiTj flitn bfltaff do mbstuitiil dlf-
fvcnoo In tlitt ^onditjoni of tho Inttfdiuin,
nor aaj laeTMaed oost of Int«rehuiglBg
aompetltiTB ■■ oonqiurad vHh nanoompati-
tiTB trafflo.
Ih« tradn Indoded In tlte Joint tarmlnal
uruigement of •ppdlanta Inelndo 8.10 bUm
of main and 28.80 mllM of ddo tracka aqw-
ntely «wned by tlio Loaiarlllo 4 NaahvilU,
12.U milM ol main and E6.3T mile* of aid*
faaekl ac^aratdT owned bj tho Naahrilla
ft Ctiattanooga, and ume yard track* owned
bf tlie Louiaville & NuhTille Tenainal Oom-
pan;, wboee entire atocb ii owned bj the
LouUTille ft NaahTlIle R. B. Company. It
may bo cooeeded that, by virtue of the leaM
from the Terminal Company to the appel-
lant railroad^ eren a« modified i> Decem-
ber, 1902, there remain* in Kme eense a
Joint tenure of the property of the Ter-
minal Compuij. Bnt, in my view, the
question of the •wnership of the property
It entirely aside from the real point. The
djacriminatlon diarged and found by the
Cwnmiuion la not ao much in the uie of
terminal property aa in the performance
of interchange aerrlcea; and for sneli dia-
ariffiination a commimitj of Intereat In the
property afforda neither Jnitiflcation nor
8o far aa the nondiicrlmlnatory perform-
anca of tboae aerrioea requires that care
from the Tennessee Central shall be admit-
ted to the terminal tracka of the Loalsrille
ft NashTiUe and the Naafaj'ille ft Chattar
nooga, and to tradLi In which theaa eom-
paniea have a Joint Interest, thia ia ao only
because appellant* have, aa between them-
aelves, and also a* r^arda trafBo from the
Tennessee Central, thrown their tarmJnale
•pen to the public nae. He argument lor
appellant* reata upon the essential fallaey
that the terminal lacilitiea are, in an abso-
elute *en*e, and for all purposes, private
• property. But they, like all'other part* of
the railroad line, are, with respect to their
nse, devoted to the Iwnefit of the public.
And the final clause of | S, whit* it pro-
tects each earriar to a eertain extent in the
separate use of ita terminal property, doea
BO not otherwise than It protect* ita par-
Ueular nae of the miin line of railroad.
Traoka" are mentioned together with "ter-
minal lacilitiea," and the lame rule ia ap-
plied to both. Hie tact that a carrier own*
ita own terminal* ia no more an excuse for
diecriminatory treatment of Ita patron*
with respeet to aervicea performed therein
than ita ownership «t the main line Ii an
■Eeuse for discrimination with respect to
toaaiaportatloB thereon.
It ia aald that U either of the appellant*
wwa the Kla ownor at the teimiuaJ proper-
'tlea b qoaatkB and vaed tten alone, Ift
could not ba ^laim^A to discriminate ^ainal
the Tennessee Central because of a nuro
refusal to switch for It in the interchango
of trafio. Of course. If It refused all con-
necting carrlo's alike. It eonld not be held
for diserlminaticn. But whether It would
be at libar^ to refoae to awltch for the
Tcnneaaea Central would depend upon eir-
eumstancesj tor Instance, upon whether tha
Interstate Commerce Commission, pursuant
to it* anthori^ under | 15 of the act, aa
amended In IBIO (chap. 309, 30 Stat, at L.
Sfi2, Comp. SUt. 1913. | 8&S3), should es-
tablish the two lines as a through rout^
or (without that) should determine upoa
adequate evidence that the refusal of switch-
ing privileges was a failure to afford reason-
able and proper facilities for the Inter-
change of troffio between the connecting
lines under j 3. Car Interchange between
connecting lines was made by the 1910
amendment of g 1 of the act a positive dutj
on the part of the carrier, even without 00-
tlon by the Commission. SB Stat, at L. M5,
chap. 309, Comp. SUL 1918, S 8563.
I deem It a most material fact that tho
appellants already Interchaiige noncompeti-
tive traffic wlUi the Tenneasee Central, upon
terms like thoae upon which they iuter-
ehonge both competitive and noncompetitivejj
traffle'bctween themselves. So far as their*
method of doing thia amounta to an Inter-
change of traclcage righta they have by their
voluntary action thrown open the nae of
their terminal* t« all branches of traffic,
excepting so far a* they discriminate
against competitive traffic over the Teoneo>
•ee CentraL Not only bo, but the Commla-
alon ba* expressly found (33 Inter*. Com.
Rep. 82) that the Louisville ft NoahTills
will switch competitive coal and other com-
petitive traffic to and from the Tennesaeo
Central, the interchange being uaually ef-
fected at Shops Junction and over the ralla
of the Naahville ft Chattanooga. But tho
I«uisTiIle ft Nashville Insists upon charging
local rates aa It for transportation between
Naahville and Overton, TenneSBee, whidi
amount to from (18 to £30 per ear, and are
therefore In offeet prohibitory. For a tim*
tho Naahville ft Chattanooga in like manner
offered to perform the same switching *err>
ice to and from the Tennessee Central at Ita
local rates, and published a terminal tariH
December 14, 1013, expressly providing that
such local rate* would apply to competitlvo
traffic from and destined to the Tennessee
Central. Ibis, however, was revoked short-
ly after the complaint in the present eass
was filed, niere Is here a very plain dis-
crimination, found by the CommiaRlon to
be an nudae lUw^iimlnatio^ not merely
A^^OOglC
Ult.
LOUISVILLB ft N. B. CO. v. IINITBD STAIXa.
agalatt the TannaMM Centml, btit agklnrt
tt "pArtfcular deacription of traiSe," whidi
ia distinetlj prohibited bj | 8. Hie conduct
•t appellant* la quite analogoua to the mak-
ing of a dioctimination in tha charge for
carriage, not because ot aMj difference in-
hering in the goodi or In tha coat of the
■ervica rendered in transporting them, but
upon the mere basis of the ownership of the
goods, — a disctimiuaticni condemned bj this
eourt in Interstate Conunerce Conunission
T. Delaware, L. & W. R. Co. 220 U. S. 235,
SS2, &6 L. ed. 446, 4S6, 31 Sup. CL Bep.
S92.
The present S7stein of interchanging tral-
Hb between appellants was established in
Augnat, 1900, a jear or two before the lint
■ •f the Tennessee Central was constructed
• Into Nashville. Emphasis was laid upwi
thia, in argument, as refuting the augges-
Hcm that tha arrangement could be deemed a
"device" to avoid tha disorlmination clause
of g 3 of tha Interatatc Commerce Act. The
flndinga of the Commlaaion show, however
(33 Iut«ra. Com. Eep. 81), tliat when the
Tenneaaee Central entered Nashville it was
wolj after strong oppoaition from the Iiouls-
villa & Nashville ; and (p. 70} that, prior
to the year 18BS, tha people of Nashville
had become desirous of better terminal
facilities, particnlarlj of a union passenger
depot, and an ordinance authorliing a eon-
tract to that end between the eitj and the
Terminal Companj was proposed, contain-
ing a proviso that the terminal facilities
ahooM also b* arailabla on an equitable
basis to railroads which might be built In
ths fntore. The present appellanta opposed
this proviso sad an ordinance Muitting it
was passed, but waa vetoed bj the mayor on
aeconnt of the omission. It dearlj enough
appeara, therefore^ tiiat the agreemoit of
Angnat, IBOO, waa mads by appellsnta in
view of the probabiliir of some other road
entering Nashville thereafter.
But were it otherwise, the result ahould
W Hie same. Tha obligation to avoid dis-
erimination and to afford "all reaaonabla,
proper, and equal facilltiaa for the inter-
dtange of traffic" is not qualified by an;
rights of priority. The new road is a serv-
ant of the public, equally with the others;
subject to the same duty and entitled, for
Its patrons, to demsnd reasonable and im-
partial performanea of the redprocal duty
from carriers that preceded It in the field.
In my opinion the present ease is eon-
trolled by our decisions in the former case
between tha same partlea (Louisville k N.
R. Co. V, United States, 238 U. S. 1, IS, 19,
B9 L. ed. 1IT7, IIB3, 11S4, 3S Sup. Ct. Bep.
690), and the earlier caas of Pennsylvania
Go. V. United Statet, S» D. B. 851, 386
et s«h 60 L. ad. OlS, 825, P.UJLIOISB, Ktl.
Sfi Sup. Ct B«p. STOt In these oases many
of the same argumants that are hare ad-
vanced were conaldeiad and overruled by thees
court. The ISrtter ease concerned th^switch- •
ing of Interstate aarload trafBc between in-
dustrial tracks and junction points within
the switching limits at New Castle, Penn-
sylvania. The Pennsylvania Company un-
dertook to austain a practice of doing sudii
switching at $Z par car for three railroads
while refusing to do It for the Buffalo, Roch-
ester, & Pittsburgh, upon the ground of its
sole ownership of the terminals and the fact
that the three other carriers were in a posi-
tion, either at New Castle or elsewhere,
to offer it reciprocal advantage* fully com-
pensatory for the switching dons for them
in New Caatle, whereas the Buffalo, Roch-
ester, k Pittsburg was not in a position
to offer similar advantages. The Interstats
Commerce Commission (29 Inters. Com.
Sep, 114) overruled this contention, and
In this was sustained by the district «asrt
(214 Fed. 445 K >nd by this court. We
there held (235 U. & 351) that the qtws-
tioB what waa an undue or unreasonable
preference or advantage under | 8 of tlia
Interstate Commerce Act was a question not
of law, tint of fact; and that if the order
of the Commission did not exceed it« con-
stitutional and statutory author!^ and waa
not unsupported by testimony, it could not
be set aside by the courts; held (p. S53),
that the provisions of | S, although that sec^
tion remains unchanged, must b« read in
connection with the amendments of IBOfl
and IBIO to other parts of tha act, and
that by these amcodmmta ths facilitle* tot
delivering freight at terminals were brought
within the definition of transportation t«
be regulated; and also (pp. S5B, 36S) that
the order did not amount to a eompulsory
takii^ of the use of the Pennqrlvsnia tracks
by another road within ths inhibition ot
ths final clause of | S; no right being given
to the Buffalo road to run its cars over the
terminals of the Penn^lvania Company, or
se ftr occupy its staUons or depots for
purposes of Its own.
In the former ease between the present
parties (LouisviUe * N. R. Co. v. United
SUtes, 238 U. 8. 1, 69 L. ed, IITT, 36 Sup.Jg
(Tt. Rep, 09S], we sustained* the district*
court (210 Fed. 072) in refusing an injuuo-
tlon to restrain the putting into effect of
an order of the Commission (28 Inters.
Com. Rep. 683, 640) requiring appellants
to Interswitch interstate ooal with ttxt Ten-
« Central as they did with each other.
The findings of tha Commission (p. 642)
ecognirad that tha t«nninals were in part
Jointly owned and in part tha separata prop-
A^iOOglC
S7 SUfBKUS; COURT BEFOSTBB.
Oct. Tkui,
•rtr ol the two appellanta. Tbt dlitrlet
court {21S Fed. 682, 684) alluded to thii
fact. And this court (23B U. S. 17-20)
did not Ignore that fact, bnt laid It uids
M inunaterial, declaring: "If the carrier,
however, de«s not lest behind that atatu-
t«i7 shield [the final clauM of i 3], hut
choooes TolunUrilf to throw the terminalt
open to manj branches of traffic, it to that
extent malcea the yard publio. Having
made the yard a facility for many purposes-
and to many patrons, such railroad facility
is vfitbin the provisions of S 3 of the stftt-
nte, which prohibits the facility from being
uaed in auch maaner as to discriminate
against patrons and commodities.'
II the decision reached in the present eaae
Is adhered to, and remsins uncorrected by
remedial legislation. It will open a wide
door to discriminatory praeticea repugnant
alike to the letter and the spirit of the Act
to Regulate Commeice.
Mr. Justice Day, Mr. Justice Brandela,
and Mr. Justice Clarke concur in this dis-
HERMAN H. OPPENHEIMER et al.
CovxTB «=385a)— Appkaa — Bt Qovbhk-
UBBT IN CBWINAL CaBB — "SOBTilNINO
SyKCiAL Plba in Bab."
1. A judgment of a Federal district
court quashing an indictment because of a
previous adjudication upon a former indict-
ment for the same ofTenae, that it "■■
barred by the statute of limitations, is
•ustaining a special plea in bar, within
meaning of the Act of March 2, 1907 (34
Btat at L. 1246. chap. 2584, Comp. Stat.
1913, I 1704), governing the right of the
government to a review in a criminal case,
although the defense was nrcsented by de-
murrer and motion to quasn, and the court
granted what was styled the motion to
qtmsh.
rea. Note.— Per otlist oases. Me "^^.HT'Ti P*^*~
nrs. II 1022-1025. 1031; Dsc. Dig. iS=>335(ll.]
GouSTS ^=o385(l)— Appeai. — By Goveb:^-
MENT IN CBIMIKAL CA8B— "SOSTAINIMG
Special Plea ik Bar." , _
2. The clause of the Act of March 2,
1807 (34 Stat, at L. 1246, chap. 2564, Comp.
Stat. 1913, S 1704), giving a writ of error
to the United States to review a decision
of a Federal district court in a criminal case
au staining a special plea in bar, when the
defendant has not been put in jeopardy, is
not limited, like the earlier clauses of thst
statute, to judgments based on the invalid-
ity or construction of the statute upon
which the indictment is founded.
[Bd, Not*.— For other easm. »es Courts, CbqL
rfg. )) lOM-lOa, lOU; Dec. Dig. fi=>3i)U)-l
CaluiNAL Law i^=>177— Beh Judicata —
Dismiss AL of iNDicruKciT.
3. A Judgment dismisBine an indict-
barred by tho statuta ol limitations is ft
bar — irrespective of any question of former
jeopardy — to a second prosecution under »
new indictment for the same oflensa,
[Ed. Nate.— F'or other cases, ne Grimlnsi Law,
Cent. Die. 11 I18-31»: Deo. Dig. rS=3l7T.]
[No. 412.]
TN 1
1 Ub
of New York to review a judgment quash-
ing an Indictment because of a previous
adjudication upon a former indictment for
the same offense that it was barred by th»
statute of limitations. Affirmed.
The facts are stated In the opinion.
Aasistant Attorney General Warren ani
Mr. A. J. Clopton for plaintiff in error.
Messrs. Benjamin Slade, L. Laflin Kel-
logg, and Abram J. Rose for defendants ia
Mr. Justice Rolmea delivered the opia-
ion of the court;
The defendant in error and others wero
indicted for a conspiracy to conceal asaetaS
from a trustee in Imnkruptcy.' Act of July*
1, 1S9S, ohap. fi41, I 29, 30 SUL at L. R44,
E64, Comp. SUt 1913, %% BOSS, S613. Tha
defmdsnt Oppenheimer set op a prevloua
adjudication upon a former indictment for
the same offense that It waa barred by the
one-year statute of limitations in ths Bank-
ruptcy Act for offenses against that ac^
% 20d, — an adjudication since held to be
wrong in another case. United States t.
Rabinowich, 238 U. S. 78, 59 L. ed. 1211, 3S
Sup. Ct. Rep. 882. Thia defense was pre-
sented in four forms entitled respectively,
demurrer, motion to quash, plea in abate-
ment, and plea in bar. After motion by
the government that the defendant be re-
quired to elect which of the four ha would
stand upon, he withdrew the last-mentioned
two, and subsequently the court granted
what was styled the motion to quash, or-
dered the indictment quashed, and die-
charged the defendsnt without day. The
government brings this writ of error, trea^
ing the so-called motion to quash as a plea
in bar, which in substance it was. United
States V. Barber, 219 U. S. 72, 78, S5 L. ed.
80, 101, 31 Sup. Ct. Rep. 209.
The defendant objects that the statute
giving a writ of error to the United Statea
from the decision or judgment sustaininf
a special plea in bar, when the defendant haa
not been put in jeopardy. Act of March t,
1007, chap. 2684, 34 Stat at L. 1246,
Comp. SUt. 1913, S 1704, is limited like
the earlier clauses to judgments
the ground that the offense charged on the invalidity or construcUon of the
«=sFor oihsr cus>
Ic & KEY-NCtJBEH in all Ker-Numbered DlgeaU * Iiids»
loie.
ATLANTIC CITY R. CO. ». PARKEB.
69
atatnte upon whtcli the indictment is
foonded. But that luuitation expiessly in
eftch of the two preceding pnxagraphB of the
■bitute ia not repeated here. The language
lued in United States v. Eeitel, £11 U. S.
370, 309, 63 L. ed. 230, 246, 29 Sup. Ct
Itep. 123, hftd rcferenca only to the con-
atruetion of the indictment and to its sut-
ficiency upon nuttters not involviiig a atat-
ute, in cases brought up by the United
States under the earlier clauses of the act.
That quoted from United States T. Kissel,
ZIB U. B. 601, 64 L. ed. 1168, 31 Sup. Ct.
Kep. 124, so far as material also meant
that the sufflcienc7 of the indictment would
not be considered here upon a writ of error
^fa> the allowsnce of a plea in bar. In view
* of our opinion upon the merite'we do not
diaenss the preliminary objecticois at great-
Upou the merits the prapoaltion of the
goTommenb ia that ths doctrine of res
judicata does not exiat for criminal e
•zcept in the modified fcMin of the 6th
Amuidment, that a person shall not be sub-
ject for the same offense to be twice put in
jeopardy of life or linib; sad the conclusion
is drawn that a decision upon a piea in bar
cannot prerent a second trial when the de-
fendant nerer liai been In jeopardy in the
sense of being t>efore a jury upMi the facts
of the offense charged. It seems that the
mere statement of the position should be
its own answer. It cannot be that the
safeguards of ths person, so often and
rightly meutJoned nith solemn reverence,
are less than those that protect from a "
Ulity in debt. It cannot be that a judg-
ment of acquittal on the ground of tbe
statute of limitations is less a protection
against a seeond trial than a judgment up-
on the ground of innocence, or that such
a Judgment is any more effective when en-
tered after a verdict than if entered by tha
govemmoit'B consent before a Jury is em-
paneled; or that it is conclusive it entered
upon the general issue (United States
Kissel, 218 U. 8. 601, 610, &4 L. ed. 1168,
IITS, 31 Sup. CL Rep. 1Z4), but if upon a
•peaisl plea of the statute, permits the de-
fendant to be prosecuted again. We do not
suppose that It would be doubted that
Judgment upon a demurrer to the merits
would tie a bar to a second indictment in
the same words. State v. Fields, 106 Iowa,
406, 76 N. W. 802; Whart. Crim. PI. ft Pr.
0th ed. S 400.
Of course, the quashing of a bad indict-
ment is no bar to a prosecution upon
good one, but a judgment for the defendant
upon the ground that the prosecution ia
barred goes to his liability as matter of sub-
tUntin law, and one judgment that he is
free as matter of substantive law Is as
good as another. A plea of the statute of
limitations is a plea to tbe merits (United
States y. Barber, 21B U. S. 72, 78, 65 L. ed.
99, 101, 81 Sop. Ct. Rep. 209 ) , and however
tbe issue was raised in the former case,^
'sfter judgment upon it, it could not be re-*
opened in a later prosecution. We may
adopt In Its application to this case the
statement of a judge of great experience in
the criminal law : "Where a criminal
charge has been adjudicated upon by a court
having jurisdiction to hear and determine
it, the adjudication, whether it lalces the
form of an acquittal or conviction, is flnsl
as to the matter so adjudicated upon, and
may be pleaded in bar to any subsequent
prosecution for the same offense. ... In
this respect the criminal law is In unison
with that which prevails in civil proceed-
ings." Hawkins, J., in Reg. v. Miles, L. R.
24 Q. B. Div. 423, 431. The finality of a
previous adjudication as to the matters da-
termined by it is the ground of decision
in Com. V. Bvans, 101 Mass. 25, the crimi-
nal and the civil law agreeing, as Mr. Jus-
tice Hawkins says. Com. v. Ellla, ISO Mass.
166, 36 N. E. 773; Brlttain r. Kinnaird, 1
Brod. k B. 432, 129 Eng. Reprint, 789, 4
3. B. Hoore, 50, Gow, N. P. 164, 21 Re-
vised Rep. 680. Seemingly the same view
was taken in Frank v. Mangum, 237 U. B.
300, 334, 69 L. ed. 969, 983, 36 Sup. Ct.
Rep. 682, as It was also in Coffey v. United
States, 116 U. S. 436, 445, 29 L. ed. 684,
6S7, a Sup. CL Rep. 437.
Tha safeguard provided by tbe Constitu-
tion against the gravest abtues has tended
to give the impression that when it did not
apply in terms, there was no other principle
that could. But the Gth Amendment was
not Intended to do away with what in the
civil law is a fundamental principle of jus-
tice (Jeter v. Hewitt, 22 How. 352, 364,
IS L. ed. 345, 348) in order, when a man
once has been acquitted on tbe merits, to
enable the government to prosecute him ft
second time.
afDrmed.
vm u. 8. W)
ATLANTIC CITY RAILROAD COMPANY,
Plff. in Err.
LEWIS 8. H. PARKER.
Masteb and Servant «=>280 (13)— Triad—
QoESTioN FOB JTmT—NBOLioENCB— Safe-
ty Appliances.
There was enough evidence to go to
the Jury on the question whether a railway
company had failed to furnish such coupler's
"coupling automatically by impact" as are
required by tbe Safe^ Appliance Act of
March 2, 1803 (27 Stat, at L 631, chap.
le topic A KBT-NUUBBR In all Ker-Numberwl Dlseats t Index
-gic
70
37 SUPREME COUBT KEFOBTEB.
Ooi. TEkM,
196, Comp. Stat. 1913, S 360S), where there
was test! root))' ebowiog that an eneine
having backed for the purpose of coupling
the tender to k car, on a curve which the
jury were warranted in finding was bo
■lij^t as Qot to affect the caae, and having
faUed to effect the coupling automatically
bj impact, the brakeman, noticing that the
dxawhead on the car was sot in line with
the one on the tender, put in his arm for
the purpose of straightening It and thus
making the coupling possible, and was in-
tBd. Nate.--Far other caats, see Master and
Bervant. CsnC Dls. I lo»: Dto. Die «»2U(11J.1
[No. 111.]
Argued November IS, 1916. Decided De-
cember i, 1916.
IN BBROB to the Court of Errors and
Appeals of the Btat« of New Jersey to
rvriew a judgment whioh affirmed a judg-
ment of tiia Supreme Court of that state
in favftr of plaintiff in an action brought
under the Federal 8afe^ Appliance and
Brnployers' liability Acta. Affirmed.
See same oaae below, BT N. J. L. 148, 93
Atl. G74.
The fact* ai« itated in the opinion.
Messra. ThoniAa E. French, Samuel B.
Bicharda, and Charlea Heebner (or plain-
tiS in error.
Mr. David O. Watktna for defendant in
* *Hr. Justice Holmea delivered the opin-
ion of the court:
lliis ia an action brought by the defend-
ant in error to recover for Uie lose of an
arm crushed while he was coupling a tender
t« a car. There la no dispute that the ease
i« governed by the aets of Congreas — the
Bafefy Appliance Act of Hardi 2, 1SQ3,
gehap. 196, Si 2, 8, 27 SUt. at L. 631, Comp.
• But. 1913, St 8606, 8612,*and the Employ-
ers' Inability Act of April 22, 1908, chap.
149, SI S, 4, Sfi SUL at L. S6, Oomp. SUt
1913, il B659, 8660. The facU material
here are few. The engine had backed for
the pnrpoee of ooupling with the car and
had failed to couple automatically by Im-
pact. Thereupon the plaintiff, noticing that
the drawhead was not in line with the
one on the engine, put in his arm for the
purpose of straightening it and thus mak-
ing the coupling possible, and was caught.
An exception was taken to the refuaal of a
ruling that no negllgeuoe was shown on
part of the railroad company, but the court
of errors and appeals affirmed the Judg>
meat ol the court below. 87 N. 3. L, 148,
98 Atl. 674.
If there was evidence that the railroad
failed to furnish null "couplers coupling
automatically by impact" aa Uie sUtute re-
quires (Johnson v. Southern P. Co. 106 U.
S. 1, IS, 19, 49 L. ed. 363, 3SS, 370, 26 Sup.
Ct. Bep. IGS, 17 Am. Nrf. Bep. 412), noth-
ing else needs to be considered. We are ot
opinim that there was enough evidence to
go to the jury upon that point. No doubt
there are arguments that the jury should
have decided the other way. Some lateral
play must be allowed to drawheads, and,
further, the car was on a curve, which, of
course, would tend to throw the coupler out
of line. But the jury were warranted in
finding that the curve was so slight as not
to affect the case, and in regarding the
track se, for this purpose, a straight 1in&
II couplers failed to couple automatically
upon a straight track, it at least may be
said that a jury would be warranted in find-
ing that a lateral play so great aa to pre-
vent coupling was not needed, and that, ia
the absence of any explanation believed by
them, the failure indicated that the rail-
road had not fully complied with the law.
Chicago, B. & Q. B. Co. v. United SUtea,
220 U. a esO, GTl, 66 L. ed. 682, 686, 31
Sup. Ct. Bep. 612i Chicago, B. I. & F. B.
Co. r. Brown, 229 TI. S. 317, 320, 321, S7
L. ed. 1204-1200, 33 Sup. CL Bep. 840, S
N. C. C. A. 826; San Antonio t A. FaM
R. Co. T. Wagner, 241 U. S. 476, 4S4, 60 Im
ed. 1110, 1117, 30 Sup. Ct Bep. 626.
Judgment affirmed.
CITY OF ATLANTA.
OoiTBTB «=»3&1(10)— Bkkob to Statb Codbi
— B^voixtuB Fkdbku. QramoN.
1. The contention that municipal ordi-
nances, which eubject the business of a
private detective or detective agency to
police supervision, and provide that no per-
son shall carry on such business without
first being recommended by the board el
police eommlaaioners and taking the oath
of a city detective and giving a Utnd, offend
against the due prooess of law and equal
protection of tJie laws clauses of U. EU
Const. 14th Amend., is not so frivolous aa
not to serve as the basis of a writ ot error
from the Federal Supreme Court to a sUto
raa. Not*.— Per othar inwa, sea Courts, Ont
Dig. I lOH; tHc Dig. «=i»4(10).]
CoNffirrOTiONAL Law «=>238(1), 27Sa> —
Dn* Pbocess of Law— BkjcAL Pbotko-
iroR OF THB Laws— Bxani.ATino FuvAn
Detictiveb— PouoK Power.
2. Municipal ordinances which nibjeat
Uie buslnesa of a private detective or detee-
tive agency to police supervision, and pro-
vide tliat DO person shall carry on such
IS tuple * KBY-HnUBflB In all Ker-Nunbersd DICMta * ladi
■•"glC
LEHON 1. ATLANTA.
71
bnaiuMS without ini b«iiiK reeomraended by
tlia boaird of poIiM eommiui oners uid tak-
ing tlie oftth of a citf detootive and giTing a
boDd, do not offend againat the due proo-
en of law and equal protactlon of thelawi
elaUBM of n. B. Conat. 14Ui Amende but
are valid exerciaea of the poliea power.
red. NoU.— For otlier ewea. H« OoniUlutlaaal
Law. CsDt. DlB. « (88. tH, nO, 09, M ;
Die «=rJsa). tnai]
OoRmTDnOHAi. Law «=942— STaTtrTE»—
Who Mat AasAxi. Validitt— DiaowMi'
KATIOIf AgaIMBT NONBSSIDENT.
3. A nonreaideui private detective who
made no effort to comply with mnnleipal
ordinances which mbject the buaineaa of a
private detective or deteetlve agency to
police auperviaion, and provide that do per-
■OD shall carry on such bUBiucaa without
first being recommended by the board ot
police commissioners and taking the oath
of the city detective and giving a bond, can-
not complain that in their enforcement an
nnconatitutional discrimination wai made
against citiiena of other states.
[Ed. Kota.— for oUier eaaea, se« Constltuttonal
X^w, Cent. Dig. H 33, «0; Doe. Dig. «=»«.]
[No. 103.]
Submitted November li, 1916. Decided De-
Kmber 1, IB 16.
JN ERBOR to the Conrt of Appeals of the
State of Georgia to review a judgment
which affirmed a conviction in the Recorder's
Court of the City of Atlanta of a violation
of municipal ordinances r^ulating private
detectives. Affirmed.
See aam« case below, ID Ga. App. 04, M
& B. e08.
Tbe facta are stated in the opinion.
Messrs. John D. Uttlo, Artbnr G.
Poivell, Marlon Smith, and Max P.
Goldstein for plaintlCT in error.
UcBsra. Samuel D. Hewlett and Jamea
I* Msyeon for defendant in error.
> *Ur. Jnitlce McKenna delivered the opin-
ion of the court;
The qnestion in the ease is the validity
at ordinancea of tbe oity of Atlanta, Geor-
gia, which subject the business of a private
detective or detective agency to police super-
Ti«OD, and provide that no person shall
earry on nu^ business without being first
reconimended by the board ot police com-
visaioners, and talcing the oath of a city
detective, and giving a bond in the sum of
(1,000, aa prescribed by the ordinances.
Plaintiff in error was convicted in the
recorder's court of the city of a violation
of the ordinances, and sentenced to pay a
fine, with the alternative ot imprisonment.
Under the local procedure a petition for
eertiorarl was presented to the judge ot the
BUperior court of the county to review the
oonvlction, and was refused "sanction," to
nae the local word. This action waa ap-
proved by the court ot appeals and tht
judgment affirmed.
lie court ot appeals rejected the conten-
tion that the ordinancea were unreasonable
and void under the Constitution ot tha
state, to review which decision we, of course^
have no power; and it also sustained th«
ordinances against the contention that they
offended the clauses ot the 14th Amend-
ment to the Constitution of tbe United
States. Tbe latter contention is repeated
His contention, tn Its moat general form,
is that the ordinancea abolish the aecupa-
tlou ot private detective by the require-
menta of application for a permit to the
police commission of tbe city, the approval
of the chief of police, oath of office, and to
worlc under polios supervision. These r^
quirements. It is Insisted, offend the due
process and equal protection clauses of the
14th Amendment to the Constitution of the
United States.
The contention makes a Federal queatIon,9
and, as we are'not disposed to consider it'
frivolous, a motion to dismisa which is made
will be denied.
In passing upon the merits we assume
the facts of the complaint were established;
that is, that plaintiff in error waa proved
to have acted as a private detective^ thou^
he denied and denies It) and that hla serv-
were thoae of a "sleuth," though he
asserts they were only those of a clerk.
We make these assumptions against the
denials ot plaintiff In error because, to sus-
tain the denials, he selects parts ot the tea-
timony only, and ignores also the deduction
that it waa posaibls to make even from that
testimony.
The only question for our decision ia the
validity of tbe law, and of that we have no
doubt. Nor are we diaposed to take much
time tn its discussion, notwithstanding the
eamegt argument ot plaintiff in error. The
extent ot the police power ot the stats has
been too recently explained to need further
enunciation. Ibe present ease is easily
within Its prindple. It would be very com>
monplaee to say that the ezerciae of police
Is one ot the neoessary activities ot govern*
ment, and all that pertaina to it may be
aubjeeted ta regulation and surveillance as
a precaution against perversion. The At-
lanta ordinances do no more. They pro-
vide in effect that all who engage in It or
are connected with it as a buainess shall
have the sanction ot the state, have the
stamp of the state as to fitness and char>
acter, take an oath to the state for faithful
execution ot Its duties, and give a bond for
their sanction. This the state may do
against its own dUzens and may do against
M topic * KKT-NUUBEB In all K«r-Numb«r«d Dlcsiti ft Indaxn
gic
72
37 SUPREME COURT REPORTER.
• citiien of Louisian*, which plaintiff in
error is, or ftgainat ft citizen of *aj other
■Ute.
But tlia ruling of ttie local officers in re-
fusing approval of applicationB of nonreai-
denta of Georgia ia urged aa a eouBtruction
of tlie ordinances or lawa of the atate, and.
It ia contended, makefl them diacriminatorj
Sagainst citizen! of other atateg. Plaintiff
• in error, however, 'admits he made no effort
to compir with the ordinance*. The court
of appeal*, therefore, was of opinion that,
whether certain aections of the Penal Code
of th« state did or did not exclude eitizene
of other states from engaging aa private de-
tectivea, plaintiff in error waa deprived of
no conatitutional right, for "aa to him the
ordinances were not conitrued at all." In
other words, that he had not asserted a
right, and, in the absence of aSBcrtlon,
eould not have it judlciallj passed on. We
concur in the ruling. It is within the prin-
ciple of Gundling t. Chicago, 177 V. 8. 183,
44 L. ed. 725, 20 Sup. Ct. Rep. 933. To
complain of a ruling on* mnst be made
the victim of It. One cannot invoke, to de-
feat a law, an apprehension of what might
be done under It, and which, if done, might
not receive judicial approvaL
Judgment atOrmed.
1. Mandamus te the proper remedj
where a Federal district court has exceeded
Its power bv ordering that the execution of
a sentence to imprisonment imposed bj it
upon a plea of guilty be suspended indefi-
nitely during good behavior upon eonstdera-
tions wholly extraneous to the conviction.
[Kd. Note.— For otbar cues, see UandunuB,
Cent. DIK. ig iiX-lX; Deo. DIE. «=9G1.]
Mandamus ^=>160(Q) — Ritle to Show
Cause— To Whok Dueoixd — Coukt ob
Clebk.
2. A rule to show cause why mandamus
should not issue where a Federal district
court has exceeded ita power by ordering
that the execution of a sentence to imprieon-
ment imposed by it upon a plea of guiltj
be suspended in'deflnitely during good Iw-
havior upon considerations wholly extrane-
ous to the lci;ality of the conviction is prop-
erly directed to the judge, to compel the
vacation of the order of suapension, rather
than to the clerk of the court, to compel
him to issue a commitment.
tEd. Nota.— For other mbas, sen Mandaniua,
Cent, Dls. I 331; Dee. Dig. «=16016).]
Crimiital Law «=1001-Si'apeNDiNO Bs-
BCUTiorr o^ Sbntimci — Powsa of «d-
EBAL COUBT.
3. A Federal district court exceeds its
power by ordering that the execution of a
.. .._ . ■ 1. imposed Ijy It
upon a plea of guilty be suspended indefi-
nitely during good I)ehavior upon considera-
tions wholly eitraneoua to tne legality of
[No. 11, OriginaLl
APPI2CATI0N for a writ of b
to the United States District Court
Judge for the Northern Distriot of Ohio,
directing htm to vacate an order euapend-
ing during good beliavior the execution of a
sentence to imprisonment Rule made abso-
lute.
The facts are stated In the opinion.
Attorney General Gregory, Assistant At-
torney General Wallace, and Solicitor Gen^
oral Davis for the United State*.
Mr. Edwiit J. Harsliall for respondent
Ur. Jolin M. Killita, In prt^ria persons,
also for respondent
Mesars. Richard W. Bate, Frank W. Orin-
nell, Homer Folks, and Charlss I- Chuta as
amid cuTia,
■ Hr. Chief Justice Vriilto deIlT«r«d tlis*
opinion of the court:
Tiu accused pleading guilty to an bidiet-
ment charging him in several counts with
emtwzzling the money of a national bank
of which he waa an officer, and making false
entries in ita books, in violation of g 6209,
Revised SUtutes [Comp. Stat IS13, |
9772), was sentenced to imprisonment tn
the penitentiary for Bve years, the shortest
term which, under the statute, could have
been imposed upon him. At once at his re-
quest over th* objecUon of the United
States district attorney, the court ordered
"that the execution of the sentence be, and
it is hereby, suspended during the good be-
hsvior of the defendant and for the purpose
of this case this term of this court is kept
open for five years." The United States
moved to set this order aside on the ground
that, as it was not a mere temporary sus-
pension of the sentence to enable legal pro-
ceedings pending or contemplated to revise
it to be taken, or application for pardon to
be made, or any other legal relief against
the sentence to be resorted to, but on the
contrary, aa it was a permanent suspension
based upon considerEitions extraneous to
the legality of the conviction or the duty
to enforce the sentence, the order of suspen-
sion was void, aa it waa equivalent to a
refusal to carry out the statute. The mo-
tion was denied. In the opinion giving ita
reasons for so doing, the court, conceding
that the suspension waa permanent. Stated
I luce topic * KBT-NUUBBB In all Xs7-NnaMr«4 DlCMts * ladv
■gic
ISIO.
EX PABTIi DNITKD STATES.
7S
• UM*g«iel»l oon^derationa which it deenMd
it WBA required to talcs Into view in decid-
ing wiiether the aantence should be euIoToed,
craiceding the l^ialitj of the oonTietlMi and
■eDtence uid their flniJltf , ma follows :
"Modem notion* reapecUng ths tieAtinent
ol law breakers ftbuidoD the theoT7 thftt the
impoaitioD, of the sentence Is solely to pun-
ish, mnd now the beat thought considers
three elemoit* pioperlj to enter into the
trefttinent of everj crlminsl ceoe stter eou-
Tiction. Punishment in some msasiire Is
still the object of senteaoe, but, affecting
its extent and character, we consider the
effect of the situation npon the indlf idusi,
es tending to rctomt him from or to eon-
flrm him in b erinlnol career, and also the
relation his cose bears to the community In
the effect of the dispodtlcm of it upon others
W criminal taidencies."
After pointing out the peculiar aptitude
posse seed by a trial judge for the appre-
ciation of such conditions, and the im-
peroUve dntj which rested upon such judge
to consider and weigh the matters stated,
and to determine, as an inherent attribute
of judicial power, whether a permanent sus-
pension of the term of Imprisonment Szed
bj the statute should be ordered, the eir-
eumatances npon which it was concluded
that a permanent suspension should be di-
leeted were stated in port ss follows:
"We took into account the peculiar c!r-
eumstances under which his crime was com-
mitted, having rc^u^ to the temptations
which from time to time encompassed him,
and his personal necessities, and the pur-
pose* for which his appropriations were
made. Also, the fact that his friends mode his
omployers whole, and that otherwise he had
so commended himself to the favor of his
employers suffering by his crime, that they
at all times, as well as now, evince a dispo-
sition to forgiTS his abuse of their con-
fidence, and to support him s^inst the pun-
ishment which the law provides. We find
that otherwise than for this crime, his dis-
jj position, character, and habit* have so
• strongly 'commended him to his friends, ac-
quaintances, and persons of his faith, that
they are unanimous in the belief that the ex-
posure and humiliation of his conviction ar>
a sufficient punishment, and that he can be
saved to the good of society If nothing fur-
ther is done with him."
After further elaborating considerations
of a like nature, and stating rery many cir-
cumstances confirming those mentioned, to
leave no room for doubt that its action was
intended to be permanoit and was based
alone on the ertraneoua drcunistances stat-
ed, the court said:
'^Passing now to the oosicrete case, wa ol>-
eerve for tU benefit of the Unit«d States
that nothing exists in this ease which bot«4
the court t« *uq>end the execution of sen-
tence to prevat 'an abuse of the conrif s pro^
ess, or to prevent an injustice being dona
to the defendant,' *o far as it may be sold
tliat alnUoet jusUce required defendant
to suffer for his crime. However, we con-
sidered the defendant from many stand-
point* to be a* worthy of the benefit of th*
discretion to suspend the execution of hi*
sentence as any other eonvict upon whom
that favor has hitherto been bestowed."
Following a written demand which wan
thereafter made npon the clerk to issue a
commitment, which was refused by him oa
the ground that the sentence hod been sns-
pended, and the further refusal of the judge
to direct the clerk to Issue such commit-
ment, ths United States sought and obtained
a rule to show eoitse why a mandamus
should not be awarded directing the judge
to vacate the order of suspension, undw
which the subject is now before us for con-
sideration.
The remedial appropriateness of the writ
of mandamus Is at the threshold questioned,
but we dispose of the subject by a mere
reference to adjudged cases conclusively
establishing the want of foundation for
the contention. Ex parte Bradley, 7 Wall.
364, 19 L. ed. 214; Life & Fire Ins. Co. v.
Wilson, 8 Pet. 291, S L. ed. 940; Re Winn,$
213 U. 6.'468, 63 L. ed. 873, 29 Bup. Ct.'
Rep. 616; Re Metropolitan Trust Co. 218
U. S. 312, 64 L. ed. 1051, 31 Sup. Ct Rep.
18; Ex parte Metropolitan Water Co. 220
U. 6. 639, CG L. ed. 676, 31 Sup. Ct. Rep.
600. In addition, however, it ie urged that,
as the right to resort to the extrsordinary
remedy by mandamus must rest upon the
assumption that the order of suspension was
absolutely void, therefore the rule for the
writ should have been directed not against
the judge, but against the clerk, to cranpel
tiim to issue the commitment. But we pass
from its consideration, as we are of opinion
that its want of merit will be completely
demonstrated by the slightest appreciation
of the judicial duties of the court below
and the ministerial relation of the clerk
of the court to the same.
The return to the rule and the statement
in support of the same lucidly portray the
contentions involved in the question of pow-
er to l>e decided, and the subject in si! its
aspecta has t>een elaborately discussed, not
only by the printed arguments of the par-
ties, but, in addiUon, light hss been thrown
on the general question by an argument sub-
mitted by ths Now York State Probation
Commission, explaining the statutory aya-
tern of parol prevailing in that state, and
A^iOOglC
74
ST SDPEEUE COUBT REFOBTEB.
Oct. Temk,
bf MM ata* argnment preMiitod bj nusnbau
of tha btf of til* first oireatt Im bdtaU of •
pntotiN of mltigfttlag or pretennittiitg,
wbca deemod atneaetLrj, the itatatory pnn-
Uhmsit for erimw, wbioli it !■ daclaied has
pravkiled In tha United Stftto* wnrta In
th&t circuit for muij jeist.
The ArgoHLent on tiehalf of tlt« rMpond-
ent aoneedtt that the order of nupetuion
xraa pemumcnt, and absolutely reraoved Uie
fteenaed from the operation of the pnnisli-
ment provided bj tlie itatute; and it is fur-
ther conceded tliat a BUBpenslon of thi« char-
Mter wu the equivalent of an abiolut« and
permanent refusal to impose, under the
statute, any aentenee whaterer. However
absolute may be the right thus suertod, It
Is neTerthelesB said it is not without limita-
•jjtioD, ainee it taay not be capriciously called
• into plaj. Fauing tha question whether
this sBsumed restriction is not in the ns>
lure of things imaginary as the result of
tbe scope of the authority aaaerted, let us
ecmie to dispose of the ooatentlon made by
examining the propositions relied upon to
MBt^n it.
They are: 1. That the right to refuse to
impose a sentence fixed 17 statute, or to
refuse to execute such a sentence when im-
posed, is a discretion inhering in the ju-
dicial power to try and punish riolatlons
of the criminal law. S. That even if there
Ih donbt cm this subject as an original prop-
osiUtm, snch doubt Is dispelled as the right
was recognlied and frequently aiert«d at
eunmon Uw. 8. That the power claimed
has also been recognized by deoisions of
■late courts and of United Statea courts (tf
originsl jurisdiction to such an extent that
the dodxine is now to be oonsideied as not
opMt to eontroTersy. 1. That wha.teTer may
be the possibility of dispute as to this last
view, at least it cannot be denied that In
both the state and FedenU courts, over a
very long period of time, the power here as-
serted has been aergisad, oftM with the
eK^eas, and eonstantly with the tacit,
approval of the admlnistratiTe offleeri of
the state and Federal governments, and has
been also tacitly recognised by the Inaction
of the legislative department during the
long time the praetioe has prevailed, to
such an extent that tiu authority claimed
bAS In practice become a part <kF the ad-
ministration of criminal law, both state
and Federal, not subject to be now ques-
tioned or overthrown because of mere doubts
of the theoretical sccnraey of ths concep-
tions apon which It is tonnded.
J. The contention ■■ to Inherait Judicial
powar.
Indisputably under our oonsUtational
^■tcsn the right to try oBenMa against the
erimlnal law^ and, upon eonTietico, to im-
pose ths punishment provided by law, is
Judicial, and It Is equally to bs conceded
that, in exerting the powers vested in them
<m snch subject, courts inherently possess J
■ample right to exercise reasonable, that is,*
Judicial, discretion to enable them to wisely
exert their authority. But these concessions
aScrd no ground for tha contention as to
power here made, since it must reat upon
the proposition tiiat the power to enforce
begets Inherently a discretion to permanent-
ly refuse to do so. And the effect of tiie
proposition urged upon the distribution of
powers made by the Constitution will be-
come apparent when It is observed that in-
disputable also Is it that the authority to
define and fix the punishment for crime
Is lEgisUtlve, and includes the right in
advance to bring within judicial diecrethm
for the purpose of executing the statute
elements of consideration which would be
otherwise beyond tha scope of judicial au-
thority, *B^ that the right to relieve fro^
ths punishment fixed by law and ascertained
according to the methods by It provided, be-
longs to the executive department.
The proposltioo might well be left with
the demonstration which results from Umm
convderationa, but the disregard of the Con-
stitution which would result from sustain-
ing the proposition is made, if possible^
plainer by considering that, if it be tha*
the [daln legislative command fixing a spe-
cific punishment for crime is subject to b*
permanently set aside by an implied judicial
power upon conslderatitms axtraneous to
the legality of the conviction. It would seen
necessarily to fallow that there eonld be
likewise Implied » discretionary auth^ty
to permanently rafuM to try a erimlnal
charge because of the OMiduslon tliat a par-
ticular act made criminal by law ought not
to be treated aa criminal. And thus it would
come to pass that the poaseasloi t^ the
judical department of powo' to permsnent-
ly refuse to enforce a law would result ia
the destruotiMi of the ooaeeded powers of
the other departments, and hence leave no
law to 1m wJ orced.
£. The contention as to support for the
proposition at common law. >t
* Tb» common law is thus stated in Hale's
Pleas of the Crown, voL 2, chap. S8, p.
412:
"Beprieves or stays of Judgment or ex^
onUon are of three Idnds, via.;
"I. Ex mandato r^ls. . . .
"11. Bz arbltrio judiels. Sometimes the
judge reprieves before Judgment, as where
he Is not satisfied with the verdiat, or the
evidence is uncertain, or the indietment tn-
sufficient, or donbtlnl whathw witltla
A^^OO^IC
i9ia.
EX PARTB UNITED STATES.
75
litrgf; ud fometimeB liter Judgment, If It
be a emill felony, the out ef clergy, or In
order to a. pardm or transportation.
Croinpt, JnaL 22b, and these arbitrary re-
prieres may be granted or taken off by the
justice* of gaol-delivery, altho tlieir sea-
aions be adjourned or finished, and this by
reason of conunou usage. 2 I^er, 20Sa, 73
Eog. Beprint, 462.
"^I. Ex necessitate legla, which is in case
of pregnancy, where a woman la convict of
felony or treason."
Bladcstone thus expresses iti
The only other remaining ways of avoid-
tng tiia execution of tlie judgment are by a
reprieve or a pardon; whereof the former
la temporary only, the latter pennanent.
*I. A reprieve (from reprendre, to take
bade), ia the withdrawing of a eentenee for
an interral of time; whereby the execution is
suspended. This may be, Brat ex arbltrio
judieis; either before or after Judgment;
as; where the judge is not satlaBed with the
Ttfdiet, or the evidenee la suspicious, or
the indictment ia InsufOdent, or he Is doubt-
ful whether the offense be within clergy;
or sunetimes if It I>e a small felony, or any
faTourable cireumstaDcea appear in the
eriminal's diaraeter, in order to give room
to apply to the Crown for either an abso-
lute or conditional pardon, Theae arbitrary
removes may be granted or talcen off t^
the JnsUoes of gaol delivery, although their
session be finished, and their oDmmleilon ex-
pired; but thia rather t^ common usage,
7 than of strict right
* * "Seprievsa may also Iw tx necessitate
legia: aa, where a woman ia capitally con-
Tletad, and pleads her pregnancy; tiiough
thla Is no cause to atty the judgment, yet
it ia to reapite the execution till ihe be
deliwed. This ia a mercy dictated by the
law of nature, in favorem prolia." BIc 4,
dap. 31, pp. 894, 395.
While it may not be doubted under the
eommon law aa thus stated that court*
poeeesied and asserted the right to exert
Judicial discretion tn the enforcement of the
law to temporarily suspend either the im-
position of sentence or its execution when
bnpoMd to the end that pardon might be
procured, or that a violation ol law tn
other respects might be prevented, we are
vnabla to perceive any ground for sustain-
ing the proposition that, at common law,
the eonrts poeeesBed or claimed tlie right
whidi ia here laiieted upon. No elalKiratioii
could malce this plainer than does the text
of the passages quoted. It ia true that,
owing to the want of power in common-law
courts to grant new trials, and to the ab-
•euca of a right to review convietioni in a
U^er court. It la, we think, to be conceded:
(a) That both ■aspentiona ot sentence and
anspensiona of the enforcement of sentence*
temporary In character were often resorted
to on gronnda of error or miEwarriage of
Justice which, under our system, would be
corrected either by new trials or by the ex-
ercise of the power to review, (b) Tliat
not Infrequently where the suspension ei-
ther of the imposition ol a sentence or of its
execution was made for the purpose of en-
abling a pardon to be sought or bestowed,
by a failure to further proceed In the crimi-
nal cause in the future, although no pardon
liad been sought or obtained, the punish-
ment fixed by law was ee a.ped. But neither
of these conditions serve to convert the mere
exercise ot a judicial discretion to tempo-
rarily suspend for the accnnplishmeut of a
purpose contemplated by law into the ex-
istence of an arbitrary Judicial power to
permanently refuse to enforce the law. 1$
• And we can deduce no support for the con**
trary contention from the rulings In 2
Dyer, Ifl&a, 206a, and Z36a, 73 Eng. Reprint,
368, 4SZ, 619, since those cases but illustrat*
the exerciae of the conceded, reasonable,
diaeretioDary power to reprieve to enable a
lawful end to be attained. Nor from the
fact that common-law courts poEBessed the
power by reo^piizanee to secure good bo-
havior, that is, to enforce the law, do we
think any support is afforded for the propo-
sition that those courts possessed the ar-
bitrary discretion to permanently decline to
enforce the law. The cases of Hart's Trial,
30 How. St. Tr. 1344 and Reg. v. Dunn, 12
Q, B. lOZS, IMl, 116 Eng, Reprint, 1155,
18 L. J. Mag. Cbb. N, S. 41, certainly do
not tend to so eatabliah, alnoe they simply
manifest the exertion of the power of the
courts after a oonvicUoa and the suffering
of the legal penalty to exact from the con-
victed person a bond for his good beliavior
thereaiter.
3. Hie support for the power i
claimed to be derived from the adjudlca*
tlon of state and Federal court*.
C<nnlng first to the state courts, undoub^
edly there is conflict in the decisions. The
area, however, ot confilct will be narrowed
by briefiy stating and contraating the caaea.
We shall do so by referring chronologicaJly
to the cases denying the power, and then to
those relied upon to establish it.
In 1338 the supreme court of North Caro-
lina In State V. Bennett, 20 N. a 170 (4
Dev, & B. L. 43), waa called upon to ^
etde whether a trial court bad the right tf>
permanently remit upon condition a pad
of a criminal sentence fixed by statute, n*
court said:
"We know that a praetlee has prev^M
to sora* axtsiLt of Inflicting fine* wttk •
A^iOOglC
7«
37 SUFKEHB COUBT BEPOBIEB.
Oct. Tbbh,
pioviBian that the^ dionld b« dlmiidilied
or remitted altogether upon matter there-
after to be done, ar shown to the court bj
the parson oouTlcted. Bat we can find no
aathorit; in law for thU practice, and feel
ouraelTes bound, upon this first occaaitai
when It is brought judicially to our notice,
% to declare it illegal."
* 'In 1860, in People t. Morrlsette, 20 How.
Pr. 118, an accused, after pleading guilty,
asked a suBpcnsion of sentence and to be
then discharged from ciutody. The court
■aid:
"^ am of the opinion the court does not
poesess the power to suspend sentence in-
definitely in any casoL As I nndarstand tne
law. It is the duty of the court, unless ap-
plleation be made for a new triaJ, or a mo-
tion in arrest of judgment be made for
some defect in the indictment, to pronounce
judgment upon every prisoner
convicted of
«rlme by a jury, who pleads guilty. An in-
definite suspcnHiou <rf the sentenca pre-
scribed by law is a quasi pajrdon, proTided
the prisoner be discharged from imprison-
ment Ko court in the state has any pardon-
ing power. That power is vested exclusively
In the governor."
In People v. Brown, 54 MtiA. 16, 10 N.
W. 671, In deciding that no power to per-
manently suspend a sentence existed, speak-
ing through Mr. C3iief Justice Cooley the
court said;
"Now it is no doubt competent for a crii
inal court, aft«r conviction, to stay for a
time Its sentence; and many good reaac
may be suggested for doing so; such aa
give opportunity for a motion for a new
trial or in arrest, or to enable the judge to
better satisfy his own mind what the pun-
ishment ought to be (Com. v. Dowdican,
116 Mass. 133) ; but it was not a suspen-
sion of judgment of this sort that was re-
quested or desired in this case; it w«« not
a mere postponement; it was not delay for
any purpose of better advising the judicial
mind what ought to be done; but it waa
an entire and absolute remission of all pen-
alty and the excusing of all guilt In other
words, what was requested of the judge was
that he should take advantage of the fact
that he alone was empowered to pass sen-
tence, and, by postponing indefinitely the
performance of this duty, indirectly, but to
complete effect, grant to the respondent a
pardon for his crime."
5 And conaidering the doctrine as to the
" want of power "thus expounded from the
point of view of the common law and of
every argument here relied upon, state
•ourti have, in tha CMsa which are in the
margin, in earefnl opinions denied the to.'
Istenee of the power now elaimed.i
~ to the contrary are theae, omit-
ting one In a court of original jnrisdictioa
in Massachusetta, referred to by counsel, but
In which there is no written opinion:
In 1874 in Com. v. Dowdican, supra, tha
right in a criminal case "to lay the case on
file' and postpone the sentence was sus-
tained, the court declaring that the practice
bad long existed, and was recognized by
statutes, one of which regulated the grant-
ing of parol by courts in liquor cases. «
The cose just cited was approvingly re-*
ferred to In Sylvester t. State, «6 N. H.
103, 20 Att. 064, and declared to express tha
practice long prevailing in New Hampshire
In 1SS4, in People ex rel. Forsyth v.
Court of Sessions, 141 N. T. 288, 23 L.R.A.
866, 36 N. E. 386, 16 Am. Grim. Bep. 676,
in holding that a trial court had power to
permanently suspend a sentence for reasons
dehors the legality of the conviction, it
was declared that such power existed at
law and hence prevailed in the
1 People V. Kennedy, 68 Uioh. 372, 26 N.
W. 318 (1886); Gray v. State, 107 Ind.
177, a N. B. 16 (1B86); People v. Black-
bum, 6 Utah, 347, 23 Pac 750 (ISSOt;
State V. Vosa, 80 Iowa, 467. B L.R.A. 767,
45 N. W. 808 (1881) ; People ex rel. Benton
V. Court at Sessions, 8 N. T. Crim. Rep.
366, 18 N. Y. Supp. 608 (1802) affirmed in
66 Hun, 560, 60 N. Y. 8. B. 234, 21 N. Y.
Supp. 669 (1893): Re Strickler, 61 EaJi.
700, 33 Pac 620 (1803); People ex rel.
Smith V. Allen, 166 Dl, 61, 41 Ut.A. 473, 30
N. B. 6B8 (1886) ; Be Markugon, 6 N. D.
180, 64 N. W. 030 (1806) ; Re Webb, 89
Wis. 364, 27 I1.B.A. 366, 46 Am. St. Rep.
840, 62 N. W. 177, 0 Am. Crim. Rep. 702
(1896) ; United States v. FoUom, 8 N. M.
651, 46 Pac 447 (1306) ; State t. Uurphy,
23 Kev. 390, 48 Pac 628 {1B97); Neal v.
State, 104 Ga. 609, 42 L.B.A. 190, 60 Am.
St Rep. 176, 30 S. K 868 (1898) ; Republio
V. Pedro, 11 Haw. 287 (1898) ; Re Beck, 63
Kan. 67, 64 Pac 971 (1001); Miller v.
Evans, 116 Iowa, 101, 66 L.RA. 101, 91
Am. St Bep. 143, 88 N. W. 108 (1901);
People ex rel. Boenert v. Barrett, 202 111.
287, 83 L.R.A. 82, 96 Am. St. Rep. 230, 67
N. E. 23 (1003] ; Re Flint, 26 Utah, 338, 96
Am. St. Bep. 853, 71 Pac. 531 (1903) ; State
V. Dalton, 100 Tenn. 644, 72 S. W. 4SB, 16
Am. Crim. Rep. 663 (1902); Grundel v.
People, 33 Colo. 101, 108 Am. St Bep.
76, 79 Pac. 1022 (1905); Tuttle v. Lang,
100 Me. 123, 60 Atl. 802 (1005) ; McCamp-
bell T. State, 116 Tenn. 08, 03 S. W. 100
(1906) ; Re St. Hilaire, 101 Me. 622, 64
Atl. 882, 8 Ann. Cas. 386 (1908); Tanner
V Wifgins, 64 Fla. 203, 46 Bo. 459, 14 Ann.
Caa. 718 (1907) j State v. Hockett, 120 Mol
App. 630, 108 8. W. 690 (1908) ; Ex part*
Clendanning, 22 OkU. 108, 19 L.B.A.(N.S.)
1041, 132 Am. Bt. Bap. 028, 97 Paa CSO
A^iOOglC
UM.
EX FABTK UNITED 8IATBS.
IT
■Uto, thU being tni^ortAd by a qaotatlon
fran Hale's Fleu of Hit Crown. In addi-
tlcB it was uid, reforing to a ibito parol
■tatDta enacted lubaeqiiait to tbo eoBTJetion,
Out aaeh rtatnte, while it eonferred no new
tx other power than tlwt poiwiBed at oom-
mon law, nevertheleH Impoied th« doty
to we to tt that tlie power wma not lost
to impoie future pnnlahment after the
release U the condition ot suep«n«ion was
violated.
In the esses cited In tlie ma^in the pew-
s' was upheld upon the rulings in Com.
T. Dowdican, and the Fcwafth Case, lupra,
or because of a practice long prsTailing. >
leaving aside the question of the aiaerted
■ dntj to cuatiiin the doetrlne because of the
• loug-establlsbed •practice, which we ahall
hereafter conaider, we think It elear that
the Iraig and settled line of authority to
which we hare previously referred, denying
ttie existence of the power, is in ne way
wealcened by the mllngs which lie at the
basis of the eases relied upon to the con-
trary. In the first place^ m the face of the
opinion In Com. r. Dowdican, supra, It
would seem certain that that ease treated
the power as being brought by the state
k^slation which was referred to within the
domain of reason able discretion, since by
the effect of that legislation the right
to exert such power. If not directly su-
tiiorized, was at least, by essential impli-
cation, sanctioned by the state law. In the
(IMS); Ex parto Cornwall, 223 Uo. 2C&,
139 Am. SL Bep. 607, 122 6. W. eae (1009);
Wall r. Jones, 13S Oa. 42S, 60 8. E. G48
(1910); State v. Smith, 173 Ind. 38S, 90
N. E. eOT (1900); State ex rel. Gary v.
Langum, 112 Minn. 121, 1ST N. W. 465
(1010) ; Ite Peterson, 19 Idaho, 433, 33
L.R.A.(N.S.) 1067, 113 Pac 729 (IBll) j
Bute T. Abbott, 87 8. C. 406, 33 L.R.A.
(N.8.) J12, 70 8. &. 6, Ann. Cas. 1912B,
118B (1911); Spencer v. State, 1£E Tenn.
04, 3S L.R.A.(N.S.) 680, 140 S. W. fiB7
(1911) ; State ex rel. Dawson t. 8app, 87
Kan. 740. 42 L.G.A.(N.S.) 249, 12d Pac
78 (1312) ; Daniel ». Persons, 137 Ga. 828,
74 S. B. 200 (1912) ; State t. Sturgis, 110
Me. S6, 43 L.BjL(If.S.) 443, SS Atl. 474
(1912) ; State t. Talberth, lOS He. 67G, 86
AtL 296 (1912) ; Fuller t. 8tate, 100 Miss.
811, 39 LJl.A.(N.S.) 247, 67 So. 606, Ann.
Cas. igl4A, 98 (1912) ; Ex parte Bugg, 1G3
Mo. App. 44, 145 S. W. 831 (1912) ; Snod-
grass V. State, 67 Tex. Crim. Bep. 615, 41
L.R.A.(N.S.) 1144, 160 8. W. 162 (1912);
Ttoberts t. Wansley, 137 Oa. 439, 73 S. E.
«54 (1918); Hancock r. Rogers, 140 Oa.
«S8, 79 8. E. 653 (1013); Brobandt *
Com. 157 Ky. 130, 162 8. W. 786 (1914)
Be Hart, 29 N. D. 38, L.R.A.1916C, 1169,
140 N. W. S68 (1014) ; Reese t. Olsen, 44
Dtah, 318, 139 Pac. 041 (1914).
i Stete ▼. Addy, 4S N. J. L. 113, IS Am.
second place, in so far as Oie Forsytli Om^
supra, is concerned and its declaraU«i as
to what was the eommoo law upon the sub-
ject^ the error thus fallen into Is not only'
demonstrated by what we have said as to
the eonunon law, but is additionally shown
by the fact that the quotation from Helena
Pleas of the Crown, made in the opinion,
contains elanses supporting the opinion ex-
pressed as to the common law when in faot
the clansea in question, it would seem, were^
by some error of citation, mistakenly at-
tributed to Hale. We say this because the
clauses referred to and attributed to Hale
In the quotation are not found in any
edition of the Fleas of Uia Ciown which we
have been able to examine, and it Is stated
by counsel for the United States that, after
diligent search, no passage containing the
elsuses has been discovered, and the exist-
ence of any edition of the work eontaining
them is not pointed out by opposing counsel.
But whether this be well founded or not,
as the conclusion concerning the common
law which the ease expressed Is, we thinic,
obviously unsound, we are unable, on the
autbority of such a mistaken view, to dis-
regard the long established and sound ruls
laid down in the many stato eases which ws
have quoted.
8o far as the courts of the United Stateag
are cimeemed (It sutQees to say that we have*
been referred to n» opinion maintaining the
asserted power, and, on the contrary, in
Rep. 647 (I88I); People v. Mueller, 15
Chicago Leg. News, 364 (1883) ; Com. v.
Malon^, 14S Uasa. 20G, 13 N. E. 482
(1887) ; Ex parte Williams, 26 FU. 310, 8
So. 425 (1890); SUts v. Crook, 116 N.
C T60, es L.B.A. 260, 20 8. S. 613
(1894); SUte V. Whitt, 117 N. a 804,
23 8. E. 462 (1896); People ex rel. Dun-
nigan v. Webster, 14 Misc. 617, 36 N.
Y. 8upp. 746 (1895); Weber v. State, 68
Ohio St 616, 41 L.R,A. 472, 51 N. E. 116
(1898) ; Scbaefer v. State, 7 Ohio C. C. N.
6. 292, 27 Ohio C. C. 791 (1906) ; Re Lm,
3 Ohio N. P. N. 8. 633, 16 Ohio S. & C. P.
Dec 269 (1905) ; State v. Hilton, 151 N. C.
687, 66 S. E. 1011 (1009)) SUto ex ret
Buckley t. Drew, 76 N. H. 402, 74 Atl. 875
(1900) i Stato ex rel. O'&innor ▼. Drew, 78
N. H. 604, 76 Atl. 191 (1910); Re Hinson,
166 N. C. 250, 36 L.R.A.[N.S.) 362, 72 B.
E. SIO (1911); Stoto ex rel. Gebrmann v.
OHbornc, 79 N. J. Bq. 430, 82 Atl. 424
{1911}; People V. Goodrich, 140 N, Y. Supp.
406 (1914); State v. Tripp, 168 N. C. 150,
83 S. E. 630 (1914) ; Stato v. Johnson, 169
N. C. 811, 84 8. E. 767 (1916). Bee Greene
V. Stato, 88 Ark. 200, 114 B. W. 477 (1008) ;
Joiner r. State, 94 Ark. 108, 126 S. W. 723
(1010); People v. Patrich, IIB Cal. 332,
60 Pac. 426 (1897) ; Com ex reL Nnber r.
Keeper, 6 Pa. Super, a. 420 (1S9B) ; Ctm.
r. DulCMvy, 10 Pa. Buper. Ct 380 (IMl),
A^^OOglC
n
n sontmm oodbi bxpobtes.
Oct. Tmn,
tta ofWoi b <ha aHy «m la lAicA tha
nbjMl «M «aaald«nd, it wm expruilf d*-
■Ued die power wm wanting. United State*
T. Wflion, M Fed. 748 (18S1). It la troa
that in tlie Dlatrlet of Columbia the azlat-
enc« et the power wu maintained. Miller
T, United Statea, 41 App. D. a fiS (IBIS).
But the OABoundneaa of tlM grounda npon
which the eonelualan waa baaed la demon-
strated b; what we hara prerionaly said;
and, aside from thia, aa the anbjeet was eor-
erad b; an act of Coogreaa etmf erriag power
of parol (Aet of June 26, 1910, 30 Stat at
L, 864, eh^ 43S), the oaaa requires no
further conalderation.
IL Hie du^ to reeognlia tlie power as lawful
baeanae of its esertiiMi in practiee hj
the state and Federal eourta, and the
implications arising therefrom,
niare Is BO doubt that Ib aoma states,
without referenea to probation legislatlMi or
an afflnnatira recognition of any doctrine
supporting tlt» power, it was srlginolly sx-
erted, and tha right to eontinue to do ao
came to be reeognlaad solely as the result
of tha prior practioa. Stata az rel. Oehr-
mum T. Osborne, 70 K. 3, Eq, 490, 82 AtL
424.
Aa t« the eourta of the United Ststea, In
ana of the elrcuita, the flrst, eepeciallj In
the Massachuaetta dlatriot, it ia admitted
the practice baa in aubatance existed for
probablj slztj Tears, aa the result of a
system styled "^ylng the ease on flle."
The origin of this system ia not explained,
but it ia stated In Uie brief supporting the
practiee that eourta of the United Btatea
hsTa considered the existing state lawa as
to probation, and have ttidssTored in a oer.
tain manner to eonform their action there-
to. It is fame, alao, that in the eourta of
the United States, aiHnetlmea In on«
more districts in a eirouit and aometlmea
In other dronita, in many Instancea tiie
power here asserted was exerted, it would
aeem without any queeUon, there being no
2 objection raised by the reprBsentativea of
• the United States; indeed, it I* said that
In Ohio, when the power, as we have seen,
waa recognized as existing, It was exerted
by Mr. Justice Matthews of this court when
sitting at circuit, and there and elsewhere,
it Is pointed out, the power was also ex-
erted in some Inatances by other judges
then or subsequently members of this court.
But yet It la alao true that, numerous as
are the instances of tha exertion of the
power, the practice waa by no means
Tersal, many United Stataa judges, even In
a district where the power had been ex-
erted, en a change of incumbency, persiet-
attly refodng t« axart the power tm. the
grtmnd thai H was not poaaeaaed. Indeed,
aa far waa thia tha ease that we think U
may be aaid that the exertlm of the power
under the eircnmstaucea stated waa inter-
mittent, and was not nnlveraal, but partiaL
As amply shown by the eaaa before na,
w« think alao tt la apparent that the altua-
tlon thua described was brought about l(f
the acrupulona deaire of judgea not to abuse
their undoubted diaoretion as to granting
new trials, and yet to provide a remedy for
eonditlons In cases where a remedy waa
called for In the interest of the administra-
tion of the oriminal law itself, as well aa
by the moat obvious eonsideratlons of hu-
manity and pnblio well-being, — conditions
arising in the nature of things frcm tha
atate of proof In eaaea coining before than
which eould not possibly have been foreseen
and taken into ctmsideration by the law*
making mind In fixing In advance the pen-
alty to be Imposed for a particular crime.
And the force of this eondoslon will ba-
eome more manifeat by eonai daring that
nowhere exe^t aporadleally was any objea-
tlon made to the practioa Irj the proaeeut-
Ing offlaera of the United Statea, who. Ilk-
deed. It ia aald, not Infrequently Invriead
lt( axerdae. Albeit thia la the ease, wa
can aae no reaaon for saying that we m^
now hold that ttie right exists to continue
a practice which la Inconiiatent with the
Constitution, since its exercise. In the veryQ
nature of things,* amounts to a refusal by*
Uie judicial power te perform a duty rest-
ing upon it, and, aa a conaequenee thereof,
to an Interference with both the legislative
and executive authoH^ as fixed by ths
ConaUtutlon. The fact that it ia said In
argument that many persons, exceeding two
thousand, are now at large who otherwias
wonld be impriaoned as the result ol tha
exertlca of the power in the past, and that
misery and anguish and miscarriage of jus*
tice may eome to many innocent persons 1^
DOW dedaring the practice illegal, prasento
a grave situation. But we are adm<uiishe4
that no authority exists to cure wronga re-
sulting from a violation of tha C<»istltutia*
In the past, however meritorloua may have
been the motive giving rlae to It, by aan^
Honing a disregard of that Instrument in
the future. On the contrary, so far aa
wrong resulting from an attempt to de
awf^ with the consequeneea of the mistaken
exerdee of the power in the paat la eaa-
eemed, complete remedy may be aSorded by
the excrtlMi of the pardoning power; and,
so far as the future is eoncemed, that la,
the causing of tha Impositlin] of penaltiea
as fixed to be sutiject, by probation leglaU-
tion or such otlicr meane aa the l^alative
mind may devisa, to such judicial disereUoi
as mtff ha adequate to nabla eourta I*
A^^OO^IC
IBIS.
LONQ SADLT DEVELOPMENT 00. t. CAU:..
meet, bf the «tenlM of ui enlarged but
wise diieratlon, the Infinite ruifttJona
which mmj be prevented to them for Judg-
ment, reararBB must be had to CongreBa,
whose legiaUtive power on the mbject la,
in the Terj nature of thlnga, adequately
complete.
While the ccmclualona juat stated Inerita-
Vty exact that the rule which is before ns
be made absolute and that the mandamus
lame, nerertheleas we are of opinion that
the exceptional cooditions which we have
deicribed require that we exercise that rea-
sonable discretion with which we are vested
to temporarilj suspend the Issue of the
writ to as to afford ample time for execu-
N tlve clemency or such other action as ma;
• be required to meet the'situation. And for
this purpose the laaue of the writ will be
stayed until the end of this term, unleaa
the United States otherwise requests, when
tt will go as a matter of eourae.
Sule made absolute.
ri4i V. a. rm
LONO SAULT DEVELOPMENT COM-
PANY, PIff. in Err,
HOMEB D. CALL (as Buecessor of John J.
Kennedy), as Treaanrer of the State of
New York, Deft in Err.
CouBTs ^33M<9)— Emiob to Stati Coubt
— FBDEaAL QUCBTION— DXCTSTOH OR NOR-
TKDIRAI. GBOUHD — IKFAIWKO CONTRaOT
Obuoatioih.
A decision of the highest court ol tlie
■tate refusing to recognise the distence of
ftUeged property righU of the Long Sault
Development Company in the bed and
watera of the St. I^wrence river, purport-
ing to have been grsntod t^ N. Y. Iawb
1007. chap. S6S, is not reriewable In the
Federal Supreme Court oa the theory that
contract obligaUous were Impaired by the
effect given W the state court to the re-
pealing act (N. Y. Laws 1913, chap. 46S),
where such decirion waa based upon the
ground that irrespective of, and without
reference to, the subsequent repealing legis-
lation, the wiginal grant was an uucon-
stitntioDsl attempt by the state to bargain
away lands under navigable waters to a
private corporation a^eeing to maintain
navigntiou thereover "in sa good condition
as ... at present," thereby parting
with Its powir to improve such nav^tion,
and in effect abdicating the trust upon
which the state held control over the river
as navigable water.
VEa, Note.— For othar osea. ■«■ Oourta, Cent
Dig. I UK; Dae. DU. «3)S40).]
[No. 49-1
Argued April 14 and 17, 1918. Beargued
October II, 1910. Dedded December 11,
1916.
IN ERBOS to tha Supreme Court of lite
State of New York in and for the County
ol Albany, in that state, to review a judg-
ment altered pureusnt to the Tnaniiete of
tiie Court of Appeals, which affirmed a
judgment of the Appellate Division of Uie
Supreme Court for the Third Department,
affirming ordere of the Supreme Court at a
Special Term, denying the applicatlDn of a
corporation for a writ of mandamus to e«m-
pel the treasurer of the state to reoognlze
the validity of the statute incorporating
such corporation, Diamiaaed for want of
jurisdiction.
See same ease IkIow, In ^ipellata division,
158 App. Div. 3BB, 143 N. Y. Supp. 4e4|,
In court of appeals, 812 N. Y. I, 105 N. SL
849, Ann. Caa. lOlSD, 66.
The facta are stated in the opinion.
Messrs. Henry W. Taft and Vraaclt
Sims McGrath for plaintifC in error.
Messrs. Sferton E. I>wls, 0. T. Dawe^
and Mr. E. E. Woodbury, Attorney General
of New York, f(» defendant in error. P
' Mr. Jnstiee Olarke delivered the opinion *
of the court:
This proceeding was eommenced in the
supreme eourt of New York by the Long
S&ult Development Company, hereinafter
called the plaintiff, for the purpose of tes^
Ing the oonatitutionallty of an aot of the
legislature of that state, passed in 1B07(
to incorporate the plainti^ and to grant t*
it important righta in tha bed of, and with
respect to tlia use of tike waters of, the St,
Lawrence river. Laws of 190T, chap. 8SS.
The ease is now in this court on the
claim that this Act of 190T is a valid law,
and that Uia property rights springing from
the grants therein and the aeeeptsnce ol
them by the plaintiff were impaired by a
later act, passed in 1913, purporting to re-
peal the Act of 1907, and bj the effect given
to this later act by the decision of tha eonrk
of appeals, rendered in June, 1914.
The tiUe of the Act of 1907 indicates the
comprehensive character of the grants whlob
the legislature attempted to make by itt
It reads as follows: "An Act to Incorpo*
rate the Long Sault Development Company,
and to Authorize Said Company to Con*
struct and Maintain Dams, Canals, Powei^
houaes, and Locks at w near Long Sault
Island, for the Purpose of Improving the
Navigation of the Elt. lAwrence River and
Developing Power from ttie Waters Thereof,
and to Construct and Maintain a Bridge
and Carry on the Manufacture ol Com-
modities."
The act proceeds, first, to Incorporate the ^
Long Sault Developmoit Company, givii^B
it perpetual oorp<»mte*«zlatenae, and tlMB*^
in terms to authorize it t* ecmstruet, miim-
IB topic * KET-KUHBBR In all Ker-Nvmbered Dlcwta * lBd«>
A^^OOglC
17 SUPREUE OOUBT £EPOBT£R.
Oor. Tkuc,
tab), and operaU duna, eutftli, teMrralii,
•nd the ^tpurtenuicea iiec«esu7 or tudul
tor the ptirp«M of developiitg Wbtar power
and electrical energy, at suoh point or
poinU adjacent to the toath shore of tha
Bt. Lawrence river, and in and upon the
river bed near Xong Sanlt island or Barn-
hart's island, aa ma; be selected bj the
■ompanji to erect and maintain power
honua and electrical transmiuion appli-
aneeai and to cmistruct a bridge or bridgea
aeroM the river, in eonnsotion with the dam
authoriied, and to ohargs tolls for paassge
thereon.
^eM important righti are declared to be
granted upon various ipeclfled conditions,
the ffloft important of whi^ is "that the
rights harebj granted shall never be so used
aa to impair or obetroet the navigation of
tbs Saint Lawrence rirer, but, on the con-
trary, that Buch navigation shall be pre-
served in a* good oondititm aa, if ttot better
than, the (oma is at preaml, regard being
always had to tbe amount of the natural
flow of water In said river as affecting its
aavigabilii^ from time to time." [Section
S]
The act further provides that, after the
Congress of the United States shall author-
ize the conatruetion of ths proposed dams,
locks, and canals, and after the payment of
certain sums of money into ths atate treas-
nry, Uien the Ccoumissioners of the Land
Office shall, upon application of aaid corpo-
ration, "^ront unto it tht title and Mterctt
o/ the ptopU of the ilaie t» and to landt un-
der tAe water* of tA« .Saint Ziatcrenc* ricer
to be oovered or oeoupied by taid toorke and
look* and poaer houtei." [Section 4.]
TtM payments to be made, after the year
1911, shsJl be not less than (26.000 for each
year. The petition alleges that ths river
at Long Sault rapids ia now practically
unnavigable, being oavlgatcd (Hily by light
draft paaaenger veesels down stream during
the summer tourist season, and that all
other traffic up and down the river pasaea
_^ around the rapids by way of the Cornwall
g canal, on the Canadian aide of the river.
• • The plaintilT was duly organized aa a
corporation, and expended a large aum of
money in preparing to utilize the grants ol
By an act which became a law on the 8th
day of May, 1913, the legialature of the
state in terma repealed this Act of 1907,
under which the plaintiff in error is claim-
ing.
Almoat three months before thia repealing
act was passed, this suit was commenced by
the filing of a petition in the supreme court
of New York, praying for a writ of man-
damus, to be directed to the treasurer of
that stat^ requiring him to receive as a
payment into the treasury of tlie state the
sum <rf |2E,000, as a sum due and payable
on February 1st, 1013, for the year 1912,
under Hie provisions of the Act of 1907,
which sum had theretofore been tendered to
the treasurer and had been by him refused,
for the reason, it is alleged, that he bad
been adtiaed by the attorn^ guerol of
the state that said act was unconstitutional
and void. The application of the petitioner
for a writ of mandamus was denied by ths
supreme court, and this decision was
affirmed by the appellate division and by the
court of appeals, which ordered the raoord
In the case remitted to the supreme cout^
to ba proceeded upon according to law.
Up to this time there ia nothing in the
record before us to indicate that aay ques-
tion was presented to the state courts, ex-
cepting the single oae as to whether or not
the Act of 1907 was valid under the Consti-
tutioD of tha state of New York.
More tbiut a month later, on the 14th day
of July, 1014, ths court of appeals, on mo-
tion of the plaintiff, requested the supreme
court to return the remtttitur to the court
of appeals, which court then amended tha
same by incorporating therein the atato-
mank that "upon the argument of the
appeal in this cause before the court of ap-e
peals" there was aubmitted a brief, oon-^
tainlng flve*apeci&ed points. Of these in'
"Point HI." alone counsel tor the plaintiff
for the first time, and then only by way ol
argument, attempt to present a Federal
question by claiming that if the repealing
act is to 1>e regarded aa an attempted con-
demnation of the special franchises claimed
by the plaintiff. It "would be unconstitu-
tional in that such franchises were not
taken by the state for public use," in vio-
lation of the 141h Amendment to the Cob-
atitutiou of the United States.
It is significant to note that the court of
appeala, in its deoiaion, rendered before the
remtttitur waa thus amended, did not treat
or regard the repealing act as "an attempt-
ed condemnation of the apecial franchises
claimed by the plaintiff," nor did it after-
wards so treat it.
Upon the record thus described the plaia-
tiff in error comes into this court, claiming
that the act of the legialature of the stats
of New York of 1907 is a valid, conatitu-
tional law, and that, it having been accepted
and acted upon by the plaintiff, contract
and other property rights resulted which,
under the decision of the court of appeals,
have been impaired or taken away by the
repealing act of 1013, in violation of tha
Constitution of the United States and ot
fhs 14th Amendment thereto, and it there-
fore pri^ for a reversal of the judgment tt
A^K~)Oglc
ISIO.
LONQ SAULT OEVBLOl'MSNT 00. T. CALU
81
the ■npmM eonr^ «Bta«d pnriuwat to the
decision of the coort of ^ppwili.
The defendant In tior meet* this elaim
•f the plaintiff bj ft denial of the jurisdio-
tion of thia court, for the elajmed reason
that the eourt of appeals reached the con-
eluiion that the Act of 190T waa nnconatl-
tutional and Toid without reference to, and
without giving any effect to^ the aubaequent
repealing itatute.
The grants of the Act of 190T are aneh
that, if it was » valid law, upon tlieir
being accepted, th«j oonstituted proper^ or
contract righU, ef whleh the plaintiff could
t-not bo deprived, and which could not be
r impaired, bj* aubaequent legislation, and.
therefore, the denial \tj the defendant in
error of the jurisdiction of this eourt ren-
ders it necessary for us to determine wheth-
er the oourt of appeals, in its decision, gave
any effect to the repoding act. If It did
not give effect to that act, either expressly or
by implication, this court is without juria-
dlctioD to review iti decision, for the reason
that the provisiona of the Constitution of
tho United States for the protection et eon-
traet righte are directed only against the
impairmmt of them by eoutitutions ot
kwB adopted or passed sulMequent to the
date of the contract from which sueh rights
spring, and do not reach decisions of courts
construing constitutions or laws which were
ia effect when the contract was entered into,
M has been held by a long line of de-
dsions extending from Knox r. Exchange
Bank, 12 Wall. 376, 20 L. ed. 414, to Cross
Lake Shooting k Fishing Club v. Louisiana,
224 U. B. 038, 66 L. ed. 024, 32 Sup. Ct.
Sep. 677.
In deciding this question, this court is
not limited to the mere consideration of the
language of the opinion of the state court,
but will consider the snbstaueo and eSect
of the decision, and will for itsetl determine
what effect, it any, waa given by it to the
repealing act Pi^er v. New Orleans, 218
U. S. 438, 64 L. ed, 1099, 31 Sup. Ct Rep.
67; Cross Lake Shooting t Fishing Club v.
Louisiana, 224 U. a S32, 6S L. ed. 924, 32
6np. Ct. Rep. 577, and Louisiana R. ft Nav.
Co. V. Behrman, 23S U. 8. 164, 59 L. ed.
17S, 35 Sup. Ct Sep. 82. While this eourt
will exercise Independent judgment as to
the scope of the decision of the stato court,
it will give to that decision that respectful
and sympathetic attention which is always
due to the highest eourt of a state (Fisher
V. New Orleans, supra), with the presump-
tion always in mind that the state courts
will do what the Constitution and laws of
the United Ststes require. Neal v. Dela-
ware, 103 U. 8. 370, 3SS, 2B L. ed. 687, 671;
Chicago ft A. R. Co. v. Wiggins Ferry Co.
108 U. B. 18, 27 L. ed. U6, 1 Sup. OL B^
17 8. C<— «.
814, 817; New Orleans ▼. Benjamin, 163 XT.
8. 411, 38 L. ed. 764, 14 Sup. Ct Bep. 906,
and Deflanea Water Co. v. Defianee, 191 U.„
S. 184, 48 L. ed. 140, 24 Sop. Ct Bep. 83. J;
* Aa examination of the opinion of the*
court of appeals shows that the court, in its
consideration of the repealing act of 1B13,
■tot only did not give to It an effect which
would bnpair any contract relation spring-
ing from the Act of 1907, but that, on tho
contraiy, it concluded that the repeal
"could not operate t« eonflscate any valid
franchise or property right which the Long
Bault Development Company had previously
acquired under the act repealed," and that
thia conclusion made it necessary for tho
oourt to "consider and determine whether
the legislature possessed the constltutionsl
power to conv^ away the state control over
the navigation cd (Jie St I«wrenee river t»
the extent attempted by the Aet of 1907."
[212 N. T. 8, 10« N. E. 849, Ann. Caa.
1916D, 68.}
And then, addreaslng Itself to tho eonstf-
tntional problem thus stated, the eourt
prooeeda, upon principle and authority,
to decide: That, under the ConstitutioK
of tho atate of New York, the power
of the l^islatnra of that state to grant
lands under navigable waters to private
persons or eorporations la limited to pur-
poses whieh may be useful, eonvenient,
or necessary to the public; that it baa
no powM- to ao part with the title to
■uoh lands that the stat* may not tn the
future improve navigation over them. If tha
puhlLe interest shall so require; and that
they are held by the state on such a trust
for the pnblie use that the Ic^slatore has
no power to authorise the conveyance of
them to * private eorporatlon to maintain
navigaUoB thereover "in as good condition
as ... at present," thereby psrting
for all time with its power to improve such
navigation.
The court flnds Its principal authority
tor these legal positions In the decision
of this eourt in Illinois C. R. Co. v.
Illinois, 146 U. S. S87, 36 L. ed. 1018,
IS Sup. Ct Bep. 110, in which it was
decided! That the title which a state
holds to land under navlgsble wa,t«rB la
different in character from that which
it holds in land intended for sale and^,
occupation; In the former case it being^
held in trust for the people of tha'state, In*
order that they may enjoy the navigation
of the waters and carry on commerce over
them, free from obstruction or interference
by private parties; that this trust devolving
upon the state in the public interest is one
which eannot be relinquished by a transfer
of the property; Uiat a stats can no mora
ahdleata its trust over lueh property, la
,A_.OOglC
tr SUFRfflOE CX}UBT BBFOBIBB.
Ooi; ItaM,
wblch the vhol* peopU ara liit«re«ted, bo &■
to leave it nnder tha control of privata
parties, tiian it can aMicata ita p«riie« pow*
era in the adminiatration of goremment and
the preaerration of tha peace, and that the
trust uDder which tuch landi are held ia
goTermnental, ao that thej cannot ba alien-
ated, except to be used for the improremant
of tha public use In them.
Thia waa a pioneer declaion npon the anb-
Ject at tha time it waa tendered by a di-
vided court, but the prlnciplea upon whloh
it proceeds have been fraqnautly approved
by thia oourt. Horria r. United SUtea, 174
U. S. 1&3, 43 L. ed. S4S, 19 Gup. Ct. Rep.
049 i United SUtea t. Miaaion Kock Co. 1S9
U. S. 391, 409, 47 L. ed. 8BS, Sas, 23 Sup.
Ct Rep. 000; Kean r. Calumet Canal k
ImproT. Co. 190 U. S. 462, 4S1, 47 L. ed.
1134, 1145, 23 Sup. Ct Rep. 661: and they
have bean Terj widely approved by many of
tha hig^eat courta ol the atat«a of the
Union. Roae'a Notea on U. 8. Reporta, vol.
12, p. 270; Supp. S, p. 291; Bupp. 6, p. SOS.
Having arrived at tlieaa eoncluaiona of
law, tha court of appeala proceeds to make
application of them to the Act of 1BD7, and
conclodea that that act in terma, virtually
turns over to tha corporation the entire
control of the navigation of the Long Sanlt
laplds (provided that the oonsent of Con-
gresa to tha grant could be obtained), le-
qulring only that ths eompany shall pay cer-
tain stipulated sums of money, and that tt
shall preserve tha navigation of tha river
"in as good condition aa . . • tha same
is at preaaot" and aaya that, no mattar
how much the Intereat of tike public might
demand the Improvement of tiie river in tlie
future, the state would be powerless to act
.either directly or by oonatraAnt npon th*
georporation ; and for this reason it eoneludea
• that the act Is, in substance, aa*abdicaUon
of the trust upon which tha state holds
control over the St Lawrence river aa navi-
gable water and that therefore. It is nn-
oonatitutional and void. Whether this eon-
atruotlon placed upon the act ia tha one
which this court would place upcm it if aom-
ing to an original interpretation of it we
need not Inquire; for, under tha authorities
hereinbefore cited, Uie prohibition of the
Ctmatitutioo against tha impairing of oon-
tracta by atata legialation doea not reaeh
errors oommitted by state courta when
paaalng upon the validity and effect of a
contract under a eonstitution or laws exist-
log when it is mad&
This diecusaion of the deoialon by the
eouTt of appeala maJeaa It very clear that
that decision does not give any effect what-
OTcr to the repealing act of 1913, but that,
wholly independent of that act and prooeed-
Ing npon sound principle and abundant au-
thority, the court arrived at the condnsloa
that the Act of 1907 wsa uuconatitntbrnal
and void; and therefore tt results that this
case doea not present any question for desi-
sim under the Federal Constitution, and
that for want of jnriadiotion, tha writ of
error must be diamissed.
Mr. Justice McKenna and Hr. Justice
Pltner dissent upon tha ground that chap-
ter 350 of the Laws of 1907 of the state of
New York, creating the Long Sault Develop
meul Company and conferring upon it ce^
tain righta and ftaneblses, when aocepted,
aa It waa, by tha company, constituted a
contract between the state and the company;
th^t the repealing act and accompanying
l^lslstlon passed in 1913 (chaps. 462 and
46S) had the effect «f impairing tha obliga-
tion «1 that contract in eonbavention of
) IQ of arUele 1 of tha Federal ConaUta-
tlon ; and that effect waa given to ths latter
legislation ij the decision undo revisv.
(MD. anu
MINERALS SEPABATIOIT, Limited, aai
Minerals Separation American Syndicate
Limited
V.
JA3fES U. HYSB.
Patemts «3»42— iHVBimoiT— PaocKaa— Oit
COItCENTBATION OF OSKS— FUOl AKT —
OOMKKBOUI. SUOCSH.
1. The proeeaa of otl eoDosntratioB of
ores, as deaeribad In and praetised nndar tbs
Subnsa-Picard-Ballot pMwt No. S3S420,
which oonsista In the usa of an amoant
of oil which la "oritical'' and minute^ aa
compared with the amount used in l^or
proceaaca, "amounting to a fraction cl t
per cent mi the ore," and In ao impr^natiof
with air the msaa of ore and water used by
Sitation as to causa to rise to the aurfsos
the mass or pulp a froth peculiarly eo-
hcreut and persistent oompoaed of air bub-
bles with but a trace of oil In them, which
carry in mcehanieal suspension a very hlgb
percentage ol the metal and metalliferous
particles of ore which were contained In the
mass of craved ore snbiected to treatment
must ba deemed to eonstltute a new ana
patentable discovery, prior processes re-
quiring the use of so much oil that they
were too eipenslra to be uacd on lean ore^
to which they were Intended to have their
chief application, and the new proeeaa, be-
cause of its economy and simplloity, having
largely replaced all tha earlier procesaea.
rad. NDte.—^r other obms, as* Patanta, OMt.
'Dig. i (>; Dec. DIb. «s>41.1
Patkitts «=3B3— Who Bittitlxd n> Ite-
OOVBKT— EllPLOTXB ailD BMFLOTKBB.
2. Patentees were none tiis leas dl»
coverers of the process patented because an
employee happened to make tha analyses
and obaervationa which resulted inuna-
diately In the disoovery, where tha patentaas
«=9Por othw oaaaa sea a*
a topla * KMT-inntaxSi In aU Kaj-HtunbCNt DIcaata * laOOM
v*^iOOglC
UHXRALB BEPABATION t. WnO.
I «Kp«rfaiuBti !■ progrOM wImo
tka diaeorarr wu mada^ diraeud tha 1»
TMHgitloiw dA7 bj iaj, oondnotad than in
lugn part pancBally, and intnprtrted tb«
fwuta.
DH. Hotai— Tor othar ou*^ na Patant*. Cant.
DftTl IC ; Dae. DIk. «:3M^
pATBim «s2»-'DiKmpnoiT or PKooia»—
CksTAiim.
3. Tha SnIniaB-Piawd-Ballot pfttan^
Hoi S3S,IE0, for an impiorad proceaa for oil
•o&Mntntion of oraa, la not Invalid becanaa
iritaa different on* an treated preliminaij
taata mnct b« made to detennina Uie amotuit
of M and tlia exttmt of agitation naeeaHr^
In order to obtain the beat raanlta, the rang*
«I treotmnt withU the temu •( Ow eldma,
whilo lesTing BOBwtUng to the akiU of per*
' ' [ the iBTentiiM, being daarlj
S^f^2
tS^,
Hot*'— Tot othar oi
I, aaa Patent^ I>ae.
PAmn* ^3170— IirmrnoiT — rnnnrw
Pni(» Statx Of Anr.
4. ne prior atata of the art reqnlrea
fhnt the BuWn-Ploard-Ballot patent. No.
USfUO, for an improved prooeu for eil Cob-
Otntration of oroa, ba auataliied only ao far
■0 ft elaima the reaulta obtained by the
«M o( oil within the proportiona deaoribed
Oanln as "eritital propmrtlotta,'' "amonnt-
o a fraetian ei I per eeat on the ore."
dGIi
MS; I>ao. IMc teslTI.]
O".
"^K WBTT of Certiorari to tha United
I Cirentt Court of Ai^>eala for
» Ninth Cironlt to review a decree whioh
MOeraed » decree of the Diatriot Cotirt for
tk» DMriot of Uontana in favor of com-
^alnanta In ft patwt infringement suit, and
rmanded the eaaa with Inetmetlona to dia-
alaa the IhU. Deerea of the Ctrenit Court
•< Appeala revraed. Deoreo of Diatriot
Ooort Bodlfled. and as modiflod affirmed.
Sea aama eaa« Maw, UO O. 0. A. «7I,
CU red. 100.
The facta are atated hi tha opinion.
Ueaara. Henrj D. WUlluue, WUIlam
Eonaton KnTW, Undley M. Garriaon,
mderlo D. MoEennej', Jdin R Uiller, and
OdeU W. UeConnell for petltinMre.
Meaara. Wkltev A. BootC, Thomaa F.
Sheridan, Qeorge L. Willdnaon, K. R. Bab-
Utt, J. Bmee Kraner, aid John F. Kearjr
—Ux reapondcnt
s.
• Ur. Jnatiea CI»rk« ddlrered the opinion
ad tiie eonrt:
In thla anft (fae oomplainant^ fib* firrt
Snamed aa the owner and tho other aa gtn-
• aral lloenaee, claim an * Inf ringcnunt ol
tJnlted Statea letters pat«t Mo. 83S,120,
itanad on the tth daj of Horomba-, 1»0«,
to Hemj LMngstono Snlman, Hn^ Ftta*
alia Kirkpatriek-Pieard, and John BaUefc
The nanal Injnneticm, aceoonting, and da^
agea are priced for. Ae diatrlct aoort
1, 2, a, f, 0, 7, B, 10, 11, and 12; feoad
that the defendant had Infringed eoch ot
tlieae olalma, and granted the prayer of tho
petition. Hie elrenlt eonrt of appeala for
the ninth ^euit rerened the decree of the
diatriet eonrt and remanded the case with
inetmetkins to dismiss the WL The ease
is haio aa writ of eerUorari to review that
decision.
As atatad In the speBifluUon, the claimed
discovery of Uie patent In the suit relatsa
"to improvements In the process for tho eon-
aentration of area, the object being to atp^
rats metalUfwoos matter frmn gangne Ij
maana of oila, fat^ adds, or ether n]b>
stsaces which have m prefarential affinitj
for snoh metalllterons matter over gaBgns."
Tbe answer denlee all of tho allegationt
of tho bill and avera that fa twoity-firo
deaigBated United Statea and five British
patents tha process described In sait was
"fnllf and clearly deaoribed and elaimed;*
and It also areri that the elalmsd diseovaij
was invented, Icnow^ and need by manj
persona long prior to the time iriksn tho
application was made for the patent In
anlt. Notwithstudlng this elaboration o(
denial, oonnad fw tho defndant in tho
snwimarlKSd eonelarian to their brief re^
upon only five ot the many patoite referred
to aa ahowing that the patsmt Ik suit vaa
anticipated and la therefor* Invalid tor
want of novelty and Invention, via.! Ever-
eon (1S80), Vroment (Italy, 1902; Great
Britain, 1S03), Glogiin (10OS), Schwara
(applied for April IS, lOOS, leaned Deeem-
ber 19, 1B05), and Eirby (applied for Oe-
tober IT, 1903, Issued Deeambar IS, ISOt).
And the defendant, a man ofaviooaly is-j
perieaeed In the sabjeet, says that, in his^
opinion, the 'whole ba^ of flotation o«^*
osntration wu dIsoloseJ la the Everwu
United States patent No. HS.UT aad In tho
ITroment British patent.
It Is clear that in the prior art, aa It U
developed In this record. It was well knowm
that oil and oily sabstMiees hsd * sslecUvo
affinity or attraction for, and would nnlta
medianioally with, the nUnute partlclea of
metal and metallic sompoonda found ta
eroded or powdorad ores, bnt would not
BO unite with tite quarts, or rocky nonmo-
taJUc material, called "gangne." Hayneo
British patent {18«0), and United SUtM
patents, Kverson (1880), Kobson {I80T),
and Elmore (IBOl). It was alae weU
known that this salectfv* prt^rty ot ells
and oily snhstances waa Incieoaed when i^
>r athar caaaa aaaai
* leple * KBT-NUHBEB In aU Ear-Nnmbaraa Diiwti * IbIw
v*^C
^Ogk
37 SUFBEUB COUKT REFORTEB.
Oor. Tnui,
plied to some orea bj th« addition of %
■mall unount of BCid to th* ore uid water
Tiaed in proeeee of concentration. United
State* pfttente, ETeraon (lSS5)f Elmore
(ISDl), ud C&ttermole (1004)
Prior to the date of the patent in suit
ft number of patents Iiad been granted
tills and other countries for proceaEcs aim-
ing to maice practical usa of this propertj
of oil and of oil mixed with acid in tLa
treatment of ores, all of which, speaklnf
broadij, consisted in mixing flnel7 crushed
or powdered ore with water and oil, some-
times with acid added, and then in Tarlous-
Jy treating the mass — "the pulp" — thus 'flotation process, yei it differs so eaaentiallji
formed so as to separate the oil, when it
became Impregnated or loaded with ths
metal and metal-bearing particles, from the
valueless gangue. From the resulting eon-
centrate the metals were recovered in vari-
ous wajs.
The procesBes, of this general character,
described in the prior patents, may be
roughly divided into two classes. The proa-
«sa In the patents of the first class is called
In the record the "surface flotation proc-
ess," and it depends lor its usefulness en
the oil used being sufficient to collect and
hold in mechanical suspension the small
«particles of metal and metalliferous com-
> pounds, and li; its buoyaua7*to carr7 t^em
to the surface of the mixture of ore, water,
and oil, thus making it possible, bj methods
familiar to persona skilled in the art, to
float ofT the concentrate thus obtained into
any desired receptacle. The waste material,
or gangue, not being affected by the oil,
and being heavier than water, sinks to the
bottom of tJie containing vessel and may be
disposed of as desired.
The proceas of the other class, called fai
the record ths "metal sinking process," ra-
Terses the action of the surface flotation
process and is illustrated by the Cattermole
U. 6. patent. No. 777,273, in which oil is
used to the extent of 4 per cent to 0 per
cent to 10 per cent of the weight of the
metalliferous mineral matter, depending on
the character of the ore, for the purpose of
agglomerating the oil-coated eoneentrata in-
to granules heavier than water, so that they
will sink to the bottom of the eoutaining
vessel, permitting the gangue to be carried
•way by an upward flowing stream of water.
The process of the patent in suit, as de-
scribed and practised, conHtsts in the use
ot an amount of oil which is "critical,"
and minute as compared with the amount
used in prior processes, "amounting to a
fraction of 1 per cent on the ore," and hi
•o impregnating with air the mass of ore
and water used, by agitation — "by beating
the air into the mass" — •• to cauM to rise
to the Buifaoe of the b
. peculiarly coherent and perslstait In char-
acter, which is composed of air bubble* with
only a bace of oil in them, which eairy tM
mechanical suspensim a rery high percent-
sge of the metal and metalliferoua particles
of ore which were eontalned in the mass of
crushed ore subjected to treatment. This
froth can be removed and the metal re-
covered by processes with whldi the patent
is not concerned.
Jt is obvious tliat the process of the pat-
ent In suit, as we have described it. Is not
of the metal sinking class, and while it
may, in terms, be described as a surfaCM
entiaUyf
from all prior processes in its character, in
its simplicity of operation, and in the ro-
suiting concentrate, that we ara persuaded
that it constitutes a new and patoitable
discovery.
The prior processes which wa haT« de-
scribed required the use of so much oil that
they were too expensive to be used on lean
ores, to which they wers intended to have
their chief application, and the efforts of
investigators for several years prior to the
discovery of the process in suit bad been
directed to the search for a means or
method of reducing tbe amount of oil used}
and it is dear from the reoord tliat ap-
proach was being made, slowly, but mora
and more nearly, to the result which was
reached by th* patentees of the process in
suit in Uareh, 190S. The Froment Qreat
BriUin patent (1903) and the Kirby United
States patent (applied for in 1903 and
granted in lOOfl) are especially suggestive
of the advance which was being made
toward the desired result, but ths Froment
process was little more than a laboratory
experiment, and has never proved of valu*
in practice, and the Kirby process, thouf^
approaching in soma respects more nearly
to the end attained by the process of th«
patent in suit, found its preferred applica*
tion In the uee of an amount of oil eolutioa
equal to one fourth to three fourths in
weiglit of the ore treated, which was pro-
hibitive iii cost.
Into this field of investigation at thU
stage of its development came the patentee*
of the patent In suit. They were ex-
perienced metallurgists of London, ot in-
ventive genius and with financial resources,
and they entered upon an investigation of
the processes of oil concentration of ores
wliich was continued through several years,
and consisted of a very extended series <^
experiments in which the quantities of oil,
of water, and of acid used and the extent
and character of the agitation of the maas^
under treatment resorted to, were varied^
to an almost unparalleled extent as to each'
r pulp, a tretl^ factor, and the rsaulta n
• carefully tab»>
A^iOOglC
UI«.
UHTERAUS SEPASATION t, htdb.
Ut«d tJoA lnt«rprB(«d. It wtm while pnr*
■uing *. comprehensive inveatigfttion of thii
chiTictei, h&viug, as the eridenee ibowi,
the specifti purpose in mind at th« time to
trace the effect on the results of the process
of a reductioD to the TUiishing point ol
the quantity of oil used, that the diseorery
embodied in the patent in suit was made.
The ezperimentera were worldng on the
Cattermole "metal sinking proceas" as a
baeia when it waa discovered that the
granulation on which the proceaa depended
practically ceased nhen the oleie acid (oil)
waa reduced to about A of 1 per cent "on
tlie ore." It waa observed, however, that,
aa the amount of oleic acid waa further re-
duced and the granulation diminished, there
waa an increase in the amount of "float
frotb," which collected on the turface of the
maas, and that the production of thia froth
reached its maximum when about A of 1
per cent or slightly leas "on the ore" of oleic
MtiA was used. This froth, on eollectlon,
waa found to consist of air bubble* modified
by the presence of the minute amount ol oil
used, and holding in mechanloal suspension
between 70 per cent and SO per cent of the
total mineral content of the mass treated.
It was promptly recognized I^ tiie patent-
ees that this froth was not due to the liber-
ati<m of gas in the maaa treated by the
action of the dilute acid used, and its for-
mation waa at once attributed in large part
to the presence of the air introduced into
the mixture by the agitation which had been
resorted to to mix the oil with the particles
of cruahed ore, which air, in bubbles, at-
tached itself to the mineral particles, slight-
ly coated as they were with what was neces-
sarily an infinitesimal amount of oil, and
floated them to the surface. The extent of
the agitation of the maaa had been in-
creased aa the experiments proceeded until
the "aeries of Gabbett mixers, fitted with
^the usual balBea, were speeded at from 1,000
« to 1,1QD TBTolutions per minute."
• * A careful consideration or Uie record in
this case convinces us that the facta with
respect to the process of the patent in suit
are not overstated by the plaintiffs' wlt-
nesa, Adolph Uebmann, an expert of learn-
ing end (zperienee, when ha sayi in aub-
"The preeent tnTentlon differs esaeatially
from all previous results. It la true that
oil is one of the anlMtances used, but It is
used in quantities much smaller thui was
ever heard of, and it produces a result never
obtained before. He mineraJa are obtained
In ft froth of a peculiar character, coniist-
Ing of air bubbles whieh. In their covering
film, have the min««la embedded in such
noanner that they form a eomplete snrfaee
■U over the bubbles. A renarkaUe faet
with regard to this froth Is that, although
the very light and easily destructible air
bubbles are covered with a heavy mineral,
yet the froth is stable and utterly different
from any froth Ifnown before, being so per-
manent in character that I hare perBonally
seen It stand tor twenty-tour houra with<
out any change having taken place. The
simplicity of the operation, as compared
with the prior attempts, is startling. All
Uiat has to b« dons is to add a minute
quantity of oil to the pulp, to which acid
may or may not be added, agitate for from
two and one half to ten minutes, and then,
after a few seconds, collect from the sur-
face the froth, which will contain a large
percentage of tLe minerala present in the
It ia not necesaary tor ua to go into a
detailed examination of the process in suit
to distinguish it from ths processes ot the
patents relied on as anticipations, eon*
vineed as ws are that the small amounl
of oil used makea it clear that Qie
lifting force which aeparates the metallie
particles of the pulp from the other aul>>
■tancea ol It fa not to be found principally
in the buoyancy of the oil used, as was the
case In prior processes, but that this force
is to be found, chiefly. In the buoyancy ot^
the air bubbles Introduced into the mixtura*
by an agitation greater than and* different*
from that whloh had been resorted to be-
fore, and that this advance on the prior
art and the resulting froth concentrate so
different from the product of other proe-
eases make of it a patentable diacovery aa
new and original as it has proved useful
and economioaL It result* without more
discussion, that we fully agree with the
deeiaion ot the House of Lords, arrived at
upon a different record and with different
witnesses, but when dealing with the equiv-
alent of ths patent in suit. In Minerals
Separationa t. British Ore Concentration
Syndicate, 27 R. P. C. 33. In thia decision
Lord Shaw, speaking for the court and dis-
tinguishing the process there in suit es-
pecially from the Elmore oil flotation proe-
ess, which had gone before, but which was
typical of the then prior art, said: "They
(the patenteea ot the agitation troth pro»-
esa of the patent in snit) are not promot-
ing a ntethod of aepsration which had b»
fore been described, but they are engaged
upon a new method of sepsration. Tnatmil
ot relying upon the lesser speeifle gravity
of oil la bulk, they rely npoa the prodnetloa
of a troth by means of an agltatim whtek
not <HiIy assiats Uw proeaaa of t^ vlmto
qnantitiea of oil raftdtlag the miimta pal-
tielea of metal, b«t iems a multitude of air
ealla, the bncTUsy of which air mU^ IMb-
D,at,z.d>,.'^-.00'^IC
ST SUP&BaOi COUBT RBFORTKR.
Oct. Tmi,
bi( uatmd tlflgla putldM of tha metftl,
ftMta them to the mrfKco of the Il^aU."
And Lord Atkinson said : "la their proa-
OM thie mTsterious affinity of oil lor the
metallic particles of the ore is &Tailed of,
jet the oU ia used in mch relatively In-
flnitesinLsl qnantitieB that the metallic par-
ticles are only coated with a thin film of
it, and the lifting force is found not in
the natural buoyant of the mass of added
oil, but in the buoTancy of air bubbles,
idiich, introduced Into the mixture by the
more or leaa riolent agitation of it, enjelop
or become attached to, the thinly oiled me-
tallic particles, and raise them to the snr-
faccg where thsy are maintained fay what is
Satyled the surface tension ot the water."
? The record shows not only that the proe-
•w In suit was promptly considered by the
patentees as an original and important dis-
•orery, but that it was immediately gener-
ally aooepted as so great an adrance over
any process known before that, without puff-
ing or other bnaioesa azploltation, it
promptly came into extensive use for the
concentration of ores in most, if not all, of
the principal mining eountries of the world,
noUbly in the United SUtes, Australia,
Sweden, Chile, and Cuba, and that, because
of its economy and simplicity, it has large-
ly replaced all earlier proceases. This, of
itaelf, is persuaalTe eridenoe of that inren-
tlon which it is the purpose of the patent
laws to reward and protect. Diamond Bob-
ber Co. t. Consolidated Rubhw Tire Oo.
220 U. S. 428, CB I., ed. 627, SI Sup. Ct.
Bep. 444; Gambia Steel Co. t. Cambria
Iron Co. 136 U. S. 403, 429, 430, 46 L. ed.
BOS, 983, £2 Sup. Ct Ri^. 698; Barbed Wire
Patent (Washburn k M. Mfg. Co. t. Beat
Em AU Barbed Wire Co.) 14S U. S. 276,
M L. ed. 164, 12 Sup. CL Bep. 443, 460;
Smith T. Goodyear Dental Vulcanite Co.
M U. 8. 480, 2S L. ed. 962.
^e claim that the patentees of the pat-
ent in suit are not the original disoorerers
of the process patmted because an emjdoyee
of theirs happened to make the analyaes
and observations which resulted immediate-
fy in the discovery cannot be allowed. The
record shows rery clearly that the patent-
ees planned the experiments in progress
when the discovery was made; that they
directed the inveaUgations day by day, coa-
dnctjng them in large part personally, and
that they interpreted Ihe results. Agawam
Woolen Co. v. Jordan, 7 Wall, 6S3-603, 19
L. ed. 177-182, rules this claim against the
defendant.
Equally untenable is tha claim that tha
patent la invalid for tha reason that the
evidenoe shows that when different ores
are treated preliminary tests must be made
to determine the amount of oil and the ax-
tent of agitation ■eoessary in order to ob-
tain the best results. Bush variation of
treatment must be within the scope of the
claims, and the certainty which the law re-
quires in patents ia not greater than is rea-
sonable^ having regard to their subject g
matter.* The composition of oree varies in-<
finitely, each one presenting Its special
problem, and it is obviously impossible to
specify in a patent the precise treatment
which would be most succeeaful and econ-
omical in each case. Hie process is one for
dealing with a large class of substaDcea
and tha range of treatment within tha terms
of the claims, while leaving something to
tha akill of persona applying tha invention,
Is clearly auffleiently definite to guide tboee
skilled in the art to its aucceesful appltoai-
tion, as the evidence abundantly sbows-
This satisfies the law. Mowry v. Whitney,
14 WalL 020, 20 L, ed. 800; Ives r. HamU-
bm, 92 U. S. 420, £3 L. ed. 4B4; and Car-
negie Steel Co. V. Cambria Iron Co. 196 U.
B. 403, 436, 437, 40 L. ed. 903, 986, BBS,
22 Sup. Ct Bep. 683.
He eridenee of infringement is clear.
While we thus find in favor of the valid-
ity of the patent, we cannot agree with the
district oourt in regarding it valid as to
all of tha claims in suit. Aa we have point-
ed out in this opinion, there were many in-
vestigators at work in this field to which
tha process in suit rdates when the pat-
entees came Into it, and It was while en-
gaged in study of prior kindred processes
that their diaoovery was made. While tha
evidence in the ease makes it elear tiiat
they discovered the final step which con-
verted ezperimoit into solution, "turned
failure into success" (Barbed Wire Patent
[Washburn k U. Mfg. Co. r. Beat Em AO
Barbed Wire Co.] 143 V. S. 276, S6 L. ed.
164, 12 Sup. Ct Rep. 443, 460}, yet tha
investigations preceding were so informing
that this final step was not a long one,
and tha patent must be confined to the re-
sults obtained by the use of oil within the
proportions often described In the testimony
and in the claims of the patent as "critics]
proportions," "amounting to a fraction of
1 per eent on the ore;" and therefore the
decree of this court will be that the patent
is valid as to claims No. 1, 2, 3, 6, 6, 7, and
12, and that the defendant infringed these
claims, but that It is invalid as to claims
9, 10, and 11. Claims No. 4, 8, and 13 wera
not considered in the decrees of the two
lower courts and are not in issue in thls^
proceeding. ^
*lhe decision of tha Circuit Court of Ap->
peals will be reversed, and the decision of
tha District Court, modified to conform to
tha eonelusions expressed in this oplniosi
will ba affirmed.
A^^OOglC
1916.
(MID. B.»)
DETBOn UKITED RAILWAT, PUL
Err,
D£TBOII UNITED RAILWAY *. UICHiaAN.
n
PETSOrr UNITED RAILWAY, Plff. In
cnr OP DETRorr. (Ko. 4.)
CoDKis «=»3&4(e)— Bbxob to State Cottbt
— Fkdkrai. QnxsnoK — Iicpaikiko Gctn-
TRAOT Oblioatioiib— Dbcibiob on Nom-
ntDKSAI. GBOOKD.
1. A decision ot Ilia htghest court of &»
■tate tliat reduced ■ti'eet ndlway tares mait
be given in the territorj annexed to Detroit
bj Uich. Acta of Jone 16, 1006 (Loe. Acts
1905, No. eSS) June 19, 1907 (Loc Acta
1907, No. 665) and October 24, 1907 (Acta
fBls. Sen.] No. 1) on lines operated tliere
under Tillage and tomiBliip franchisee which
bad tliaretof(»a been acquired by the Detroit
TTnited Railway, under the antbority of HliA.
Comp. Lawa 1897, | 6448, neeeaaarlly givee
effect to the annexation acta eo aa to auataln
a writ of error from the Federal Suprenie
Court, where the Detroit United Bailwo? con-
tenda that it had a right, under anch Tillace
and townahlp tranchlaea, protected by the con-
toaet elanae o( the Vedu«] Conatitutfon, to
dtarge % higher far^ althon|^ the atate
wnrt raata ib deciiticn upon the theorj that
the t«nna of anch francUaea had been modi-
fled bf the aatent of the predeceaaora of the
Detroit United Bnilwa.; ba eity ordinancee
for the erteneion of their llnea in certain
other previonaly annexed terrltorjr, which
contain aUpulationa tor a lingle tare and
radnced rates over "iht entire route," or
ttrer "wij of It* lines In said ei^," and hj
the aubaeqnent aeqnlsftloD of these lines br
the Detroit United Railway, foUowed bj lU
aequUitton of the suburban lines in ques-
IBd. Not»-ror
;. DIK- <
• Coorta, Cant.
«(».]
CioDKTS «=>399(1)— Ebbob to State Coubt
— ^OFi or BxviKw — iHPAiKiifa Con-
TKAm OBLlaATIOITB.
2. When the Federal Supreme Court la
called upon, in the ^erefae of its appellate
Juriediction over atat* courts, to decide
whether itate legialatlon Impaira the obliga-
tion <rf a contract, it is required to deter-
gation arose from itt (3) Haa that obliga-
tion been impaired bj subsequent legisla-
tion!
[Ed. Nole^Tor other caaei. ee* CourU, Cent.
Die I lW>i I>«o. DlR. «aSgg(l).1
OOHSriTtnToiiAL Law «=al30 — Iufaibiko
COHTKACT OSLIOATIOfrB — STBEBT RAIL-
WAY Fabb IK Andexed Teboitobt.
S. Contract obligations of the Detroit
United Rwlwa^, which, under the authorit;
tf Mich. Comp. Laws 1BS7, S 0448, had
operating under Tillage and townehip grants
oont Tactual in their nature, fixing the fares
to be charged, were nnconatitutionallj im-
paired b; the effect givu to the Detroit
annexation acta <Hid. Acts of June 16,
1806, June 19, 1907, and October 24, 1607)
by a deciaion of the highest atata court re-
quiring reduced fares to be pat in force In
auch annexed territory on theae suburban
lines on the theory tut the terms of said
Tillage and township cranta had been modi-
fied by thB assent of 3m predecessors of the
Detroit United Railway to city ordinances
for the extension of taeii respective lines
in certain other previously annexed terri-
tory, which contain stipulations for single
fares and reduced ratea over the "entura
route" or "any ol its lines in said city,"
and by the subseqnent acquisition of these
lines by the Detroit United Railway, fol-
lowed by its acquisition of the suburban
lines in question.
[Ed. Note.— For otbar eaaes, aee Conitltutlooal
Law. Cent. Dig. 11 180-117 ; Deo. Dig. ^sm.]
[Noe. 1 nnd 4.]
State of Uichlgau to raview a Judgmuit
whieh affirmed a convletion of a steeet rail-
way company In the Recorder's Court for
the a^ of Detroit of having failed to ao-
oept workmen's tickets on its lines witliin
certain annexed territory. Reversed and
remanded for further proceedings. Also
IN ERROR to the Bnprcana Court of tho
State of Michigan to review a judgment
which affirmed a judgment of the Circuit
Court of Wayne Oounty, in that state,
awarding a mandamus to Mn^el a street
railway company to olMsrve the provialona
of the Detroit ordiuanoea respecting tares
upon its lines In certain annexed territory.
Reversed and remanded for furtlier pr^
ceeding*.
See same case below in No. I, 162 Ulob.
460, 139 Am. St Rep. 682, 126 N. W. 700,
127 N. W. 748; in No. 4, 173 Mich. 314, 139
N. W. 66.
The facts are stated In the opinion.
Meiers. CUlbii Root, John C. Donnelly,
WUliam L. Carpenter, Fred A. Baker, and
Henry L. Lyater for plaintiS in error.
Measra. P. J. H. Hklly and Harry J.
Dingeman for defendants in error. m
* Mr. Juatice Pitney delivered the opinion *
of the court:
These two eases involve Identical ques-
tions, were argued together, and may be
disposed of In a single opinion, ^ley con-
cern the rates of fare that may be charged
by plaintiff in error upon certain street
railway lines within the present limits of
the city of Detroit, and in both eases it is
insisted that the state court of last resort
has given such an effect to statutes enacted
in the years 1906 and 1907 lor extending
le topic * KET-KTUUBXR In all Ksr-Numbered DltsstS * Indi
'Coogic
37 SUPEEME COUET REPOBTER.
Oci. Tnu,
the corporate Ilmiti •• to Impair tha obli-
gation of the ooQtTacts contaiDed la fran-
chisea theretofore granted bj the governing
authorities of the aimezed territoiy to the
predeceeiore in title of plaintiff In cttot.
Flaintiir in error waa incorporated Decem-
ber 28, 1900, under the Street Railwaj
Act of 1867 and amendmenta tbereto (1
Mich. Laws 1607, p. 46; Comp. Iawi 1807
chap. 166), for the purpoae, aa ita corpo-
rate name indicates, of acquiring, maintain-
ing, and operating varioua lines theretofore
constructed h; other companies. Sectioa
Ifi of the Act (Comp. Lawa, | S448) pro-
vides that an; street railway compan? may
purchase and acquire any atreet railway
In any city. Tillage, or township owned by
another corporation, together with the
rights, priTileges, and franehiaes thereof,
"and may nee and enjoy the rights, privi-
leges, and franchises of such company, the
same, and upon the same terms as the c
pany whose road and franchi»es were so
quired might have done." Under this
thority It shortly thereafter acquired and
united under one organization certain lines
prerioualy conatructcd and operated inde-
pendently throughout the city and its sub-
urbs under different and distinct franchisea,
of which the following ia a annunary ;
In November, 1862, the city, by ordinance,
Sgranted to the iucorporatoia of the Detroit
f City Bailway the right *to construct rail-
ways in certain streeta, Including Jefferson
avenue, which eztenda from the center of
the city in a northeasterly direction to and
b^ond the city limits. All the lines au-
thorized were to commence at Campue Uar-
tius, and run thence on their several couraea
to the city limits, and the route along Jef-
ferson avenue to the eaateru limits waa to
be completed within six months after March
31, 1863. In 1873 a section waa added an-
thoridng the construction of a second track
along Jefferson avenue. In 1892 the city
limits on Jelfereon avenue were at Ut.
Elliott avenue. In 188S they wers extended
to a point 200 feet east of Baldwin avenue,
and while they remained aa thus fixed, and
in the year 1889, a supplemental ordinance
was passed granting to the Detroit City
Bailway, among other things, the right to
extend its double track along Jefferaon ave-
nue from its then present easterly terminus
to the easterly city limita, and fixing
time within which the same should be co
structed. There waa a provision that the
additional lines should be operated in con-
nection with and as parts of the then pres-
ent system of the Detroit City Bailway,
and that the company should agree, among
other things, to make arrangementa for
carrying passengers between the hours of
0:30 and 7:00 A. If., and between 6:1S and
• :1B P. iL, ovar any of it* lines la tha d^
for a single fare upon tickets sold at the
rote of eight for £S cent^ with apecifled
b'anafer rights.
In ISQl the ci^ limits were further ex-
tended along Jefferson avenue to Hurtburt
avenne, which was the easterly line of the
townahip of Homtramck. The railroad on
Jefferaon avenne in the territory covered by
thia extension was constructed under fran-
chises granted by the authorities of that
township, respecting which no question ia
now Tais«d.
From Hurlbnrt avenue eastwardly to tho
Country Club in the townahip of Grosse
Point— a distance of about 4^ miles — the
railroad on Jefferson avenue was eonstrust-?
ed under several grants made by the'town-a
ship and village of Qroase Point and thtt
village of Fairview, in the years 1801,
1603, and 1896, and further powers wera
conferred upon plaintiff in error, aftar ita
acquisition of these lines, by ordinance of
the village of Fairview, passed May 18,
ISOS. These several village and township
grants were for terms that have not yet
expired, and contain provisions for 6-cent
fares within the territory covered by them.
Hie Jefferson avenue lines are operated
together as a single system in connection
with lines leading from the city northwest-
wardly on Grand River avenue to and be-
yond the city limits, constructed under
rights derived by pred^easors In title of
plaintiff in error, as follows:
By ordinance of Uay 1, 1868, the city
granted to the incorporators of the Grand
River Street Railway Company the right
to construct lines on certain streets, in-
cluding Grand River avenue to its inter-
section with the Michigan Central Railway
at or near the then present city limits,
with the right to build a second track with-
in five years after the completion of the
first By § 8 this line was to be completed
t« a specified point contemporaneously with
the paving of the street, and thence to tiie
weBt«m city limits whenever public neces-
sity, as determined by the common council,
should require. By Acts of 1S7S and 1835
the limita were extended from the railroad
Intersection to a point just beyond the
Boulevard. By ordinance of Auguat 3,
1888, there was granted the right to eon-
struct single tracks on Grand River avenue
from ita then present terminus to the west*
erly city limits, and by ordinance of Janu-
ary 3, 1880, the city granted the right,
among othera, to conatruct a double track
railway on Qrand River avenue from Wood-
ward avenue to the city limita, and under
thia authority tracka were built to the lim-
ita Juat beyond the Boulevard. The latter
ordinance required the company to stipulate
that it wonid sell tickets, eight for 25 eenta,9
good over the entlr»ir^te of th» MmpaB7ir
1910.
DETBOIT UNITKD KAILWAY r. MICHiaAN.
whan offered during the momiiif Mid after-
noon houri apeeified in the ordinuiae pM«ed
-<« tbe tame date reipeoting the Detroit
City linee and already referred t«.
In 1S87 tbe township of Qreenfleld grant-
«d to the ineorporatori of the Grand Blrer
Eleetria Railway (a different corporation
from that lut mentioned) a franchiie for
tracks along the Grand River road from the
weiterlj line of the towniUp to the then
present city limits of Detroit, with a right
to charge not exceeding 5 cents aa the fore
for any distance in OreoiAeld, or six tick-
et* for 26 cents, with school ticket* at ten
for SO cent*. Under this franchise a rail'
rood was built along the Grand River road
Irom the than city limits near the Boule-
vard throughout the township of Greenfield.
As already indicated, all of these lines of
railway, with the appurtenant rights, privi-
I^ies, and franchises, were acquired by plain-
tiff in error shortly after its inoorporation,
under the authori^ of | IS o( the Act of
1807.
Afterwards, by sn act of the legislature
approved October 24, 1907 (Mich. Laws,
Ex. Seas. 1007, p. fiS) , a part of the former
village of Fairview, including Jefferson ave-
•ue for a distance of about 12,500 feet
northeastwardly from Hurlburt avenue, was
annexed to the city of Detroit. And by
AcU of June la, 190S, and June 19, ig07
(Mich. Local Acts 1006, p. 1144; Local
Acts 1907, p. 940), the city limits were ex-
tended northwestwardly along Grand River
avenue for a distance of about one-half
mile in territory previously part of Oreen-
fleld township. Each of these acts provided
that the annexed territory should be sub-
ject to all the laws of the state applicable
to the city, and to all the ordinances and
regulations of the city, with exceptions not
now material.
It is the contention of defendants In
error that the provisioni respecting fares
in the two ordinances of January 3, 1889,
■vasaented to by the predecessors of plaintiff
• in error In tbe ownership of the city lines
on Jefferson and Grand River avenues, were
intended to be applicable throv^hout the
city a* it might from time to time be en-
larged, and that plaintiff in error i* bound
by the limitations of those ordinaaoes as
to all its lines within the city, not only as
Its limits existed In ISeO, but also Includ-
ing the territory annexed in 1906 and 1907.
In ease No. 1, the anpreme court of the
state sustained the imposition of a flne for
failure to accept workingmen's ticket*, so
called, within the hours prescribed by the
ordinance of 1S89 upon Uie Jefferson ave-
nue line within the territory formerly part
of the village of Fairview, but annexed to
tha city by the Art Of Oetcrfwr Z4, IWT.
1S2 Mich. 460, IM Am. St Bep. SB8, 1£&
N. W. 700, 127 H. W. 748.
In No. 4, the court sustained a judgment
awarding a mandamus requiring plaintiff
In error to observe the provisions of the
ordinances of 1889 upon the entire Jefferson
avuue, — Grand River avenue rente, so far
aa included within the city limits aa ex-
tended in 1907. 173 Uioh. 314, 139 N. W.
sa.
In each ease plaintiff in error seasonably
and expressly insisted that the several
township and village grants above referred
to were subsisting and valid contracts at
and before the legislature of UitJiigan
passed the acts extending the city limits,
and that those acts, it so ctmstruad or ap-
plied as to affect or modify the eontroets,
were in conflict with g 10 of article 1 at
the Ck>n*titution of the United States. And
it is upon the overruliui of these contentions
that the cases are brought here, under |
237, JudicUl Code [30 Stat, at L. IISO,
chap. 231, Comp. Stat. 1913, | 1214].
Defendants in error challenge our juris-
diction, upon the ground that the judg-
ments of the state court of last resort were
based solely upon the meaning that Itattrib-
ated to the ordinance* of January 3, ISSB,
without reference to any subsequent l^i*-
It is true, as this court has many times,
decided, that the "cmtract clause" of the^
Cimstltution Is not addressed to* such im-*
painnent of contract obligations, if any, sa
may arise by mere judicial decisions in the
state eourta without action by the legis-
lative authority of the state. Cross lake
Shooting Je Fishing Club v. Louisiana, 224
U. 6. 032, 039, 60 L. ed. 024, 028, 32 Sup.
Ct. Rep. 677; Frank v. Mangum, 237 U. 8.
309, 344, 09 L. ed- 909, 087, 36 Sup. Ct.
Rep. 682.
But in this case there were state laws
passed subsequent to the making of the
alleged eontracts in question, in the form
of the legislation of 1905 and 1907 extend-
ing the corporate limits of the city. And
it is not correct to say that the deeiaions
of the state court turned upon Uie mere
meaning of the contracts without referenee
to these subsequent lawa Asauming what
in effect 1* conceded, that the village and
township franchises constituted eontracts
within the protection of the Federal Consti-
tution, the force of the deeielona was to
abn^ate the rights acquired by plaintiff in
error through its acquisition of tbe subur-
ban lines, not merely l^ecause of the assent
of the owners of the city lines to tbe ordi-
es of January 8, 1889, but because of
the combined effect of those ordinances and
the aeU of the legislature of Mlehlgan that
thareaftw extended the city limits. It is
A^^OOglC
37 SUFBSafE OOUBI BSFOItmB.
tout that no qnMUon ti or au be hora
iDftda mpecting th« aothotl^ o( th« lagU-
Utnn to mdd new torritorj to tha eftj;
uid It is llkewiH true that the umexAtion
acta contain no reference to existing con-
Iracti, nor any specific mention of the sub-
ject matter of street railway ri^ta. Bnt,
in cases of this ehsfaeter, the jnrisdietion
of this eonrt doec not depend upon the form
ill which Ute leglslatiTe scticn Is eipreved,
bnt rather upcn Its pimctieal effect and
operation ae construed and applied bj the
state eonrt of last resort, and tliis irre-
■pectlTe of the process of reasoning by which
the decision is reached, or the precise extent
to vhlch reliance is placed upon the enbee-
quent legidation. HcCuilouj^ *. Yir^ia,
172 U. B. 102, 118, 117, 43 L. ed. 3S2, S87,
S88, 19 Bup. Ct. Bep. 134i Houston k T.
0. R. Co. T. Texas, 177 U. B. 66, 77, M
L. ed. 673, 6S0, 20 Sup. CL Rep. S46; Terre
Haute i I. R. Co. -?. Indiana, 1B4 U. B.
^579, BSB, 48 L. ed. 1124, 1129, 24 Bup. Ot.
vBep. 7B7i Loulalaii* ei rel. Hubert v. New
vOrleana, S16*tJ. 8. 170, 176, 64 L. ed. 144,
147, SO Sup. Ct. Rep. 40; Tiaha t. New
Orleans, 218 U. S. 438, 440, 64 L. ed. lOM,
1100, SI Sup. Ct. Rep. 67; Carondelet Canal
ft NaT. Co. T. LouUiana, 233 U. 8. 388, 370,
68 L. ed. 1001, 1006, 34 Sup. Ct. Rep. 027;
Louisiana R. k NaT. Co. t. Behnnaa, 235
n. S. 1114, 170, S9 L. ed. 175, 180, 3S Sup.
Ct. Rep. 62. The necessary operation «f the
decfBions under review la to giTS an effect
to the annexation acta that substantially
impairs the alleged contract rights of plain-
tiff' in error as they theretofoTe stood ; and
it makes no difference that that result was
reached in part by invoking the proTlsIona
of another agreement supposed to be bind-
ing upon plaintiff In error. Whether tiie
agreement thus invoked, when properly con-
strued, has the effect attributed to It, Is
a question that touches upon the merits,
and not upon the jurisdiction of this oourt.
Coming, then, to the merits: Not only
Is It not disputed, bnt it Is not open to
serious dispute, that the original village
and township grants were contractual in
their nature. It appears that the recipients
of those grants, like their successor, the
plaintiff in error, became incorporated
under the Street Railway Act of 1867, of
which B 13 proTidea that consent for the
eonstruotion and maintenance of a itraat
railway Is to be giTcn by the corporate au-
thorities in an ordinance to be enacted for
the purpose, and under such rules, regula-
tions, and conditions as may be prescribed
by such ordinance, but that no suoh rail-
way shall be constmeted until the company
•hall have accepted in writing the terms
and conditions upon which they are per-
mitted to use the streets. By | 14, aitar
r towndiip shall fitua
■ay tOy, tUlacs, <
IuiT« emsented to
malatenanes ti street railways, or granted
rights and privll^ea to the company, and
such consent and grant shall have bean ac-
cepted by the company, the consent shall
not be revoked or the company deprived
of the rl^ts and privilege! conferred. And
bj I 20 the latea of toll or fare to be
charged by the wmpany are to be eita1>
Itshed by agreemcsit between it and the
corporate authorities, and ate not to be in-j
creased without consent o^iueh author itiea.*
It Is plain, as was pointed out hj this court
in Detroit t. Detroit Citizens' Street R,
Co. 184 U. B. 368, 386, 4C L. ed. 5»2. 607,
22 Sup. Ct. Rep. 410, that the l^islatui*
regarded tha fixing e( the rate of fare ■■
a subject for agieament between the munici-
pality and the company. And in these
oases, as in that, tha terms of the several
ordinances are such as clearly to import a
purpose to eontraot under the legislatlv*
auUiority thus oonferred.
But it la insisted — and to this effect was
the decision of the state court — that tho
terms of these contracts were In effect modi-
fled by the assent of the owners of the city
lines on Jefferson and Grand River avenues
to the ordinsnoes of January 8, 1889, and
the subsequent acquisition of these lines
by plaintiff in error, followed by Its ao-
quisitlon of the suburban lines. It is, in-
deed, argued that the construction placed
by Uie state eonrt upon the ordinances ot
1880 as contracts la not subject to the rs-
view of this court, and a declaration to
this effect is cited from Henderson Bridge
Co. T. Henderson City, 141 U. & 67», 680,
8G L. ed. 900, »04, 12 Sup. Ct. Rep. 114,
quoted in a subsequent ease of the same
title in 173 U. B. BBS, 002, 43 Ii. ed. 823,
826, 19 Sup. Ct. Rep. 663. But, notwith-
standing what was there said, it is too well
settled to be open to further debate, that
where this oourt ia called upon in the ever-
oise of its jurisdiction to decide whether
state legislation Impairs the obligation of
a contract, we are required to determine
upon oar independent Judgment these qnea-
tions: (1) Was there a eontractt (2) If
so, what obligation arose from it I and
(3) Has that obligation lieen impaired by
subsequent l^slatlont Houston k T. 0.
R. Co. v. Texas, 177 U. 6. 66, 77, 44 L. ad.
673, 680, eo Sup. CL Rep. 645; St. Paul
Qaslight Co. T. et Paul, IBl U. 8. 142, 147,
46 L. ed. 78a, 791, 21 Sup. Ct Rep. 676)
Terre Haute k I. B. Co. t. bdiana, 194
U. S. 679, 689, 48 L. ed. 1124, 1129, M
Sup. Ct Rep. 767.
Bnt of conrse la the present cases the
crucial queatlon la. What were the obliga^
tions of the contracts as they stood at ths
,A_.OOglC
101«.
DBTBOrr UNITBD RAILWAT T. mCBlQAX.
u
Unw of tkt mbMqtwnt l^laUtiont And
thenfora it becomM ai»t«riftl ta determine
whetlier, bf Tolunt&rj Action of tlio par-
Sties between th« maJcing of the auburbaii
?gT«itB and the pauage ol the annexation
acta, the obligationa arlaing out of thoae
granti had been modified. 7^ atats oourt
deemed that the aaient of the Detroit City
Bailwaj to that prorision of the Arat-men-
tiooed ordinanco of Jaouarj 3, 1B89, which
required it to carrjr pauengera at reduced
ratea "OTer any of ita linea in taid city"
applied to any and all linea it either then
ownad or might thereafter acquire, and
comprehended all territory within the limits
of the eity. Including any eztenaion of ths
municipal boundariea at of the compaiiT'B
line* within those boundariea; and that
by the acqniaition of the linea of the De-
troit City Bailway plaintiff in error became
bound by this agreement, and was obliged
to observe it, eren with respect to the lines
that it afterwards acquired as assignee of
the Groaaa Point and Fairview franchises,
■o far aa those linea were Inclnded In the
extended city limita. It was said (1
Mich. 462, I3B Am. St Bep. C8Z, 126 M.
W. 700, 127 N. W, T4S) that there wei
two methods of extending street railwayi
(Hie by coostniction, the other by purchase
under | 6446 (2 Comp. Laws 1897), being
i Ifi of tiie Act of 1S67; that "the pur-
diaaed railway becomes aa much a part «f
tiie aystem aa does the railroad as con-
structed;" and that the ordinance of 1880
was made In view of the power of the ]ag-
ialature to incteaae or diminiah the terri-
toiy within the city, and the real Intent
waa to provide for single farea within the
city limits aa they should from tlma to
time be fixed. In 173 Mich. 314, 130 N. W.
66, similar reasoning was applied to the
ordinance of 1899 reapecting the Grand
BiTer Avenue line and the obligation im-
posed upon the owner of that line to apply
the single fare and the reduced ratea "over
the entire route of aaid eompany," The
court considered (173 Hich. 32G, 320} that
eertain of the language used In the original
ordinance of 1SS2 to the Detroit City Rail-
way and In that of 1868 to the Grand Biver
Street Bailway Company showed that the
probable growth of tho eity and develop-
Smcnt of Its public utilities were anticipated,
?and*indicated a purpose Uiat the grants
should apply as far aa the ci^ might be
extended,
Notwithatanding our diapoaltlon to lean
towards concurrence with the view of the
state court of last resort in a matter of
this nature, we are unable ta aoeept Ita
eonatmctlon of the ordinances of 188S. In
the first placo, we are nnable to view the
original ordinances aa Intended to «xt<aid
the right* of ths reapeetlTo gtastaes iMfODd
the then vdating d^ limit* and as fur as
the limit* should be extended In the future^
Their language doe* not seem to us to ad-
mit of this interpretation, and tho prao-
tical eoDstrnctlon placed upon them by the
parties waa to the contrary. As the eity
limits on Jefferson avenue and on Grand
Biver avenue were extended, the respective
companies <Atained, and presumably were
required to obtain, new grants authorizing
an extension of the railways from their
then present termini to the new city limit*.
Both of the ordinance* of 1889 contained ex-
pres* grant* to this effect with respect ta
Jefferaon avenue and Grand Biver avenue
respectively. Each of the ori^nal dty
grant*, and each of the ordinances of 1889,
contained particular and comparatively
brief limitation* of time within which thb
authorized line* of railway were to be con-
atructed and placed In operation. For these
reasona, and becauae in other respects the
grants are quite specific In theb terms,
and becauae the oi^ at that time had no
authority to extend it* oorporate limit* nor
to make a grant of street railway right*
beyond them, we are compelled to conclude
that the ordinances of 1689 had no such
extensive meaning as that attributed to
them by the state eourL
Defendant* in error invoka th* estab-
lished rule that the term* of a municipal
grant or franchiae should be con*tnied
strictly as against ths grantee, and as fa-
vorably to the grantor as Its term* permit.
The state court deemed the rule to be ap-
plicable. 182 Mich. 4SGi 173 Mich. 323.^
It is at least doubtful, howevo', whether^
ths'rule, properly applied to the fact* of*
these cases, doe* not bear altogether la
favor of plaintiff In error. For of eoncH
It is not possible to adopt an extensive
construction ol the obligation* Imposed
upon the oity companies by the ordinance*
without adopting a lilce construction a* to
the extent of th* franchises thereby oon-
terred upon the companies. And can it b*
supposed that it either of these oompanie*
had claimed the right to lay down track*
and operate railwaya In the annexed terri-
tory t^ virtue of the ordinances of 188S,
they would not have been met with the rule
that municipal grant* are to be conatroed
strictly sgalnat the grantee, and cannot be
extended beyond their ezpreaa termat la
any view, tho ordinances, juat because they
were intended to be oontracti, and not
merely legislative enactments, ought to be
r^arded a* having reference to a Bpecifle
aubjeot matter.
But were we In error about the conatrtie-
tton of these ordinances, we still think that
the acquislUon of the eity linea by plaintiff
,A_.OOglC
37 SUPREUE COUBT REPOETEB.
Our. Teru,
in error, and lt« aubiequent Mqnisition of
the ■uburbui lines, did sot bind it to put
tile reduced fare proTiBiong in effect apon
the suburban lines if ftnd vhen the oit7
limits should thereafter be extended to in-
clude an; parts of the Utter. If the dt;
lines had been extended into the annexed
territorj by either of the wty railway com-
panies under sny authority conferred by
or assumed under the ordinances of 188B,
a very different question would be presented.
But such is not the case. And although
we may follow the itata court to the extent
of considering the acquisition of the subur-
ban lines under % 644S, Comp. Laws, as be-
ing in effect an extension of the eity rail-
Tvays, we cannot, without doing violence
to the provision a of that section, regard
such acquisition as abrogating any part of
the franchise rights that pertained to the
suburban lines; for the section itself de-
clares that upon such purchase being made,
Sthe purchasing company "may use and en-
• Joj the rigbts, privileges, and franchises^of
such company, the same and upon the same
terms as the company whose road and fran-
chises were so acquired might have done."
The rate of fare being among the most
material and important of the terms and
conditions referred to (Detroit t. Detroit
Citizens' Street R. Co. 1S4 U. S. 3SS, 384,
46 L. ed. 692, 600, 22 Sup. Ct. Rep. 410;
Minneapolis v. Minneapolis Street R. Co.
216 U. 5. 417, 434, 64 L. ed, ^9. 270, 30
Sup. Ct. Rep. 118), we Snd it impossible
to regard the purchase of the suburban
lines, with their rights, privileges, and fran-
eixiaea, as being in effect an extension of the
city lines, but at the same time an abro-
gation of an essential part of the righte
and privileges appurtenant to the acquired
The state court cited and relied upon In-
diana R. C«. v. Hoffman, ISl Ind. G93, 69
N. E. 399, 16 Am. Neg. Rep. 627, and Pet-
erson v. Takoma R. A P. Co. 60 Wash. 406,
140 Am. St. Rep. 936, 111 Pao. 338. In
their particular tacts and dr cum stances
those cases differ somewhat from the cases
now before us; and, without stopping here
to anal7ze them, we deem it sufficient to
■ay that we are unable to accept their rea-
soning so far as It is inconeiatent with the
Tiewa we have expressed.
It results that the provisions of the
township and Tillage ordinances respecting
the rates of fare remained in full force and
effect after tiie acquisition of the suburban
tines by plaintiff in error, notwithstsnding
its previous acquisition of the eity lines or
the previous assent of the city railway com-
panies to the ordinances of 1869. Because
of the provisiou of S 10 of art. 1 of the J
Constitution of the UniUd States, it was
not within the power of the state of Michi-
gan by any subsequent legislation to impair
the obligations of those contracts, and since
the Judgments of the supreme court of that
state gave such an effect to the annexation
acts of 1906 and 1907, in conjunction with
the ordinances of 1889, as to Impair tiiosa
obligations, the judgments must be reversed.
We have made no particulai mention of
an agreement entered into between the cityJE
and plaintiff in error in th«*year 1909, be-P
cause we agree with the state court (173
Mich. 321, 139 N. W. E6) that it was no
more than a temporary provision for a
modus operandi, and had not the effect of
waiving any of the rights of either party.
Judgments reversed, and the causes re-
manded for further proceedings not incon-
sistent with this opinion.
Mr. Justice Clarke, dissenting!
I greatly regret that I cannot concur In
the decision just announced. The opinion
of the majority of the court plainly regards
the act of the legislature of the state of
Michigan, extending the corporate limits of
the city of Detroit, as a valid law, passed
in the exercise of an undoubted power la
the legislature to deal as it does with the
municipal oorporations of that state, and
its validity for the purposes for which it
was intended is not questioned. It will re-
main a valid law after this decision as it
was before. In aubstance the decision ot
this court is that the supreme court ot
Michigan, in deciding that there Is an im-
plied condition in the contract between the
city of Detroit and the railway company
that the rates of fare therein provided for
shall apply within the city limits when ex-
tended, and in requiring the railway com-
pany to accept the same fare* throughout
the new city limits as were accepted
throughout the former limits, gives an ef-
fect to the extension act which impairs the
railway company's contract with the city.
I am of the opinion that for the state su-
preme court thus to interpret the terms of
the contract of the railway company with
the city is not to give an effect to the valid
extension act of the legislature which vio-
lates the provision of the Constitution pro-
hibiting a state from passing "any law im-
pairing the obligation of contracts." The
passing of the valid extension act merely
created a situation under which the im-
plied condition, t»i»Ung i» the fart oon-S
traot from* beginning, finds an application*
to the new territory, fliis is giving effect
not to the terms of the act of the legisla-
ture, but to the terms of the contract with
the city, and the most that can be said
against the decision of the supreme oourt
of Michigan is tliat it give* an erraneo«»
A^iOOglC
loia.
TANDALIA R. CO. t. PUBLIC 6ESVICB COMMISSION.
B3
ecnutmctlon to tha ooutract. But aince
H ia Kttled by manj dedsioiu of thU court
tlutt the contract claoM of the FederU Con-
■titutioD doa not protect contra«ta agaitut
Impairment by the decision* of courta ex-
cept where ncli decision! give effect to eon-
atitntiona adopted or laws pauod subse-
quent to the dat« of such eontracta (Croaa
lAke Shooting k Fishing Club r. Louisiana,
224 U. S. 632, 66 L. ed. 924, S2 Sup. Ot.
Rep. 677], I am of opinion that there ia
no Federal question before this court in
thia eaae and that the writ of error should
b« diamiaaed. This la a high and delicata
power which tiie court is exercising In this
ease, and it should be resorted to only In
ciaes which are clear; and, tor the reasons
thus brieflj atated, I am oonviuced Uiat this
it not «ncb a csae.
I am authorized to stata that Mr. Justice
Brandela eoneura in thia dissent
(Ml u. s. sm
VANDALIA RAILHOAD COMPAMT, Plff.
in Bir.,
PUBLIC SERVICE COMMISSION OP IN-
BIANA, u the Succeaaor of the Ballroad
Commiaaion of Indiana.
CmoaaoE «s9io-^TAn RaaTTUTioir —
OoNQUSSioirAi. IiTAonaR— Bxaui^TiND
Headliobts or Locouonvu.
1. Until Congreia acta In the matter
there is no unconatitutional inter ferenca
with Interstate commerce in an order ot a
■tate railroad eommission, made under leg-
(alative authority, requiring all enginea used
In the traniportation of trains over any
line of railroad within the state to be
equipped with hesdlighta of not leas than
1,600 candle power.
:. Hit. I t; Deo. Dig. (
[0.1
CoiTRTB «sb399<1}— Ebbob to State Ooqbt
— ScoFB or Review— Quvsn OR noi In-
volved iR Record.
i. Whether Congreaa haa ao far eov-
erad the aubject of headlights for locomo-
tivea by the amendment of March 4, 1916
(38 Stat, at L. 1192, chap. 169), to the
boiler inspection act of February 17, 1911
(3S Stat, at L. BIS, chap. 103, Comp. Stat.
1913, S 8630), aa to invalidate, when i^
plied to interstate commerce, an order of ■
state railroad commission, made under 1^
ialative authority, requiring all enginea
used in the transportation of trains over
any line of railway in the state to be
equipped with headligbts of not lest than
1,500 candle power, is not open to review
In the Federal Supreme Court on writ ot
error to a state court, whare the Btat«
eourf a decision under review, refusing to
enjoin the enforcemoit of the order, waa
Tendered, and Judgment thereon altered, be-
fore the paaaa^ hy Congreaa of auch amen-
datory act.
TSd. Not*.— Tor other caBes, sM Coorti, Cent.
Dta. I lOM; Dm-.DIS, ,tts>S>9(l>: Appeal and
'l ^.1
CoRSTiTirnoNAL Law «=2S7— "Due Peo-
CEsa or Law"— Notice and HxAEina.
8. The abaoice of any provision for no-
tice and hearing in Ind. Acts 1909, p. 32S,
empowerinf the State Railroad Commission
to Investigate the condition and efficiency
of headlighta then in use tat locomotive en-
ginea on the railroads in the atate to de-
termine the most practicable and efficient
headlight for all purposes, and to make and
enforce a^inst Ue railway companies t^e
necessary orders for the installation of such
headlights, does not make the Commission's
order requiring the installation ot head-
14th Amend., where the highest atate court
construes sucb act as supplemental to Ind.
Act of February 28, 1905 (Laws 1905. c. 53),
itliich, as amended by Ind. Act of March 9,
1007 (Laws 1907, C. 241) gave to any
carrier or other party disaatisfled with an;
order made by the Commission a right to
resort to the courta in an action to suspend
it or set it aside, and the order in question
was made after notice and full hearing, and
the complaining carrier had, and exercised,
the right to a Judicial review by action at
lav
[Bd. Note.— E^r other cuae. ■
I CenBtltutlaBSJ
„ Federal Quiwrioa—
'DiTE pBocESB or Law."
4. A carrier which has abandoned its
application for a modificstion of the order
of a state railroad commission requiring the
installation on its locomotive* of Deadlight*
of not lesa tiian 1,600 candle power la not
In a position to urge upon the Federal Su-
preme Court, on writ of error to a state
court, that the Commission's order is so
indefinite and uncertain in Its terms aa not
to furnish an intelligible measure ot the
carrier's duty, and is therefore a denial of
due proccas ot law.
[Ed. Note.— 7Ur attiar caics. eea Courti. Ont.
Dig. { IMO; Dec. Dig. (9=396(1).]
[No. 81.1
Submitted November 6, 1916. Decided De-
cember II, 1910.
IN ERROR to the Supreme Court of the
State of Indiana to review a decree
which affirmed a decree of the Superlol
Court of Marlon County, In that state, in
favor of defendant in a suit to enjoin the
enforcement of an order of the State Rail-
road Commission, requiring locomotives ta
be equipped with headlights ot not leu than
1,600 candle power. Affirmed.
See same eaae below, 1S2 Ind. 382, lOt
N. E. as.
The tact* are stated In the opinion.
Messrs. Bamnel O. Pickens, Frederlo
D. HcKenney, D. P. Willtama, and Owen
Pickens for plaintiff in error.
Messrs. Bert Winters, Burt New, Wilbur
T. Gruber, and Mr. Evan B. Stotsenburg,
Attorney General of Indiana, for defen4-'QIC
ant In error, '^'
uw MS umi topic h KET-NUUBER Id All Ks]r-Numl»r*d DIimU ft Induas
87 SUFBEUE COUBI BSFOBTBK.
Oor. TwaMf
f lb. Jnatloa Fltn«r dallrered tin opinion
9t the conrt:
The Ballroftd CommiHion of IndUn^ wu
emted And brood powwa were conferred
npon It bj kh act approred Februar; E8,
1906, and an amendatorj' act approved
^Mareb 9, 190T (Acta 1906, p. 83; AcU 1907,
?p. 464; BurDB'a'Anno. SUL [Ind.] 1908,
SS 6S31etB«q.). By a later act (Acta 1S09,
p. 323), the CommiEBion was apedflcally an-
tborized and directed to inTeatigate the con-
dition and efficiency of headlighta thai in
use on locomotive engine* on the railroads
in the atate, determine the most practicable
and efficient headliglit for all purpoiea, and
make and enforce againat the railroad com-
panies the neceaaar; ordera for the installa-
tion of auch headligbta. Pnriuant to tliia
authority it conducted an inveatigatlon,
upon notice to plaintiff in error and all
other eteam railroad companies operating
in the state, the result of vhich was an
order, made January 6, 1910, reciting the
Investigation, declaring that the oil heftd-
ligbta commonly in um were inadequate for
the protection of persona and property, and
ordering that all euglnea used in the trana-
portation of trains over any lins of railroad
in the state should b« equipped "with head-
lighta of not less than 1,600 candle power."
About one month thereafter plaintiff in er-
ror brought an action in a stat« court of
competent jurisdiction seeking to enjoin
enforcement of the order upon the ground
that the act of 1909 and tlia order made
pursuant to it were repugnant t« the "com-
merce elause" of the Constitution of the
United States and the statutes enacted
thereunder, and to the "due prooeaa clause"
of the 14 th Amendment. Among other
grounds of attack it waa sTerred that the
order was so Vkgu«^ IndeBnite, and uneer>
t^D in its description of the headlight re-
quired as to be meaningless and void, be-
oause it failed to ipteltj at what distanoe
from the aource of light the illuminating
power was to be measured, and whether it
was to be determined by averaging the in-
tensity of the light at a given distance from
its source, and if so, at what distance; that
the order did not specify the character of
the reflector, nor whether the required can-
dle power might be developed by reOectors
or lenses, or whether the light must be of
S 1,600 candle power independent of such
7lenses or'reflectors; it being averred that
each of these elements was an essential fao-
tor in the ascertainment and measurement
of the illuminating capacity of headlights,
and that there was no known standard by
which such capacity might be measured
and expressed In terms of eandls power in
the absence of those factors. From
sion'a anawv tliereto, It was made to i^
pear that, after the making of tha vtda^
]fr, Houston, ehairnmn of a committee ap-
pointed to represent the plaintiff and tha
other railioad oompaniea named in the M>
der with respect to presenting a petition to
the Commis^on for a modiSeation of its
provisions, made written application to the
Commission for a suapension of the order
and a further hearing npon the subject}
that the Commission replied that, under tlw
statute and the practioe of the Commission,
it had authority to alter, change, or modify
any final order made by it, and that tits
Commission would not suspend the order ia
question, but would treat Mr. Houghton'a
communication as an application for Ita
modification, and specifying a time for tha
hearing of that i^)plicatian; Umt oi tha
date q>eaified the carriers appeared liy Mr.
Houghton, chairman of the committee, and
by counsel, and withdrew the application
tor modification, whereupon tt was dis-
missed. Plaintiff demurred to Uie answer,
the demurrer was overruled, and, plaintiff
refusing to plead farther, final Judgmoit
was rendered against it, end, oi appeskl, this
was affirmed by the si^)rane oonrt of In-
diana; that court holding that plaintiff's
complaint did not show ground for the relief
sought. 182 Ind. SS2, 101 N. B. 86. Tha
ease comes here npon the Federal question^
under { 237, Judicial Code [30 Stat, at L.
lies, chap. 131, Comp. SUt 1918, g 1214].
6o far as the attack upon tha Act of IBOS
and the order made pursuant to it Is based
upon Interference with interstate commerce
it very properly ia nmeeded that, but for a
recent act of Congress, the oaaa would bs
controlled by Atlantic Coast Line R. Co. v.
Georgia, 234 U. S. 280, 200, SB U ed. U1X,S
1317, 34 Sup. CL Rep. e2S,'wh«re It wa^
held that, in the absence of Federal legisUf
tion, the states are at liberty. In the exer-
cise of their police power, to Mtabllsh regu-
lations for securing safety ia the physleal
operation of railroad trains within their
territory, even though such traina ars used
in interstate commerce; and that (p. 293}
the Safety Appliance Acts of Caagrea%
since they provided m) rc^lationa for looo-
motive headlights, showed no intent im
supersede the exerolse of state power witk
respect to this subject.
But It U insisted that this decision la am
longer controlling, because Congress has
since then "exercised Its power as to eqnl^
ment over tha entire locomotive and tsndar
and all parta and apportenancea thereof."
Tha reference is to the act of March 4, 191S
(chap. 160, 88 Stat at Ii. 1102), amend*-
tory of the act of February 17, 1911, raqoir*
ing oommon carriers engaged in interstata
amended complaint, and from tha Commiks- commerce ta aqolp their loeomoUrea witk
,A_^OOglC
UlS.
UKITED STAl-ES r. PENNSYLVANIA K. 00.
nfe and soitabl* boUen sod A^^urtotuncH
thereto (ehep. 103, SO SUt. at L. flJ3, Comp.
But. 19U, I 80S0). The latter act wae
aSKiiig thiMA nlerred to In the Qeorgia Caeo,
and held not to oiut the authority of the
ctato beeanee it did not appear either that
CongreM had acted, or that the Inter«tat«
Comnieree Commiaalon, under the authority
of Congreas, had eatabliihed enj r^ulatiooi
eoneeming Iieadltghta. The amendment of
ISU extends the proTiaiona reapecting in-
■pection, etc, to the entire looomotiTo and 'order let aside by the eourta. The general*
all Ita iqipnrtenances. Whether thoK pro-
viiiona aathorice the Interitate Commerce
Commiieion to pieacribe any partlcuiai type
of headlight, or other appliance, le a ques-
tion npon which we need not now pass, f«r
the reason that the decision of the sQpTeme
conrt of Indiana, refusing an injimeti<»i to
reetrain the enforcement of the state Com-
miasion's order, was rendered and judg-
ment tiiereon entered before the paiiage by
Congress of the act referred to. Obvioualy,
we onnot say that by that decision and
Judgment any right of plaintiff In error un-
«der a law of the United Statea was in-
7frlng«d, within the*meaning of | 237, Judi-
cial Code, when the law creating the
anppoeed right was not enacted until alter
Uie judgment. If, howerer, by flTtue of
the proriaione of the Aet of 1010, or of any
action heretofore or hereafter taken by the
Interstate Commerce Conunission under it,
piyntifT in error is entitled to an injune-
Uon againet the further enforeement of the
order of the state Commission, that right
may be asserted in another action and will
aot be prejudiced by our present deeUion.
With reqtect to the question of due proc-
ess of law, it is nnneceasary to determine
whether the 14th Amendment requires that
atate action, legislative in its nature, of
the character of the order of the Ballroad
Commission, shall be preceded by notice and
ui opportunity tor a hearing. In the ease
before us, the supreme court of IndiaiM
construed the sot of 1S08 as suppiemental
to the act of I90G, which, as amended in
1007 (Acte leOT, p. 460, | «; Bunis's Anno.
SUt. [Ind.] 1008, g BS36), gare to any car-
rier or other party dissatisfied with any
order made by the Commission a right to
resort to the eouiis In an action to sus-
pend It or set it aside. Since the ordw in
question was made after notice and a full
hearing, and plaintiff in error had and exer-
cised the right to a judicial review by ao-
tion at law, we concur in the view of the
•Ute eoort that there haa been In this re.
■pect no deprivation of property without
dne proeeas of law.
He only other point requiring mention Is
the insistence that the order la so ladeAnlU
•nd unoertaln In ite terms as not to furnish
an intelligible measure of the duty of plain*
tiff In error, and la therefore a denial ol
due process of law. Upon this point the
sUte court held, following lU previous de-
cielon in Chicago, L A L. B. Co. v. Bailroad
Commission, 176 Ind. 030, 838, S6 N. E, 364,
that the Railroad Commission itself, by vir-
tue of the act, had power to grant reiiel
through a rehearing, and that without flrst
resorting to that method of procedure plain-^
tiff In error was not entitled to have thee
rale Is that one aggrieved by the rulings of
such an admlnlstratlTe tribunal may not
complain that the Constitution of tlte Unit-
ed SUtee has been violated If he has not
availed himself of the remedies prescribed
by the stete law for a rectiflcation of such
rulings. Bradley v. Richmond, 2E7 U, S.
477, 46S, S7 L. ed. 603, 606, 33 Sup. Ct
Rep. 318. And since the record shows that
plaintiff in error and Ite associates were a»
corded a rehearing upon the very question of
modiScaUon, hut abandoned 1^ nothing
more need be said upon that point.
Judgment afBrmed.
(SU U. S. 208}
UNITED STATES and IntersUto Commeroa
Commission, i^pts.,
UNITED STATES, IntersUte Commeros
Commiaalon, and Crew-Levick Company,
Appte.,
PENNSYLVANIA RAILROAD COMPANY.
(No. 341.)
ComocBca ^aSG — Iiitbkbtatx Coiouckcb
OoUMissioiT— PowBBa — Requixino Oak-
BisB TO ruKHiaH Tank Ous — "Tkams-
POBTATIOH."
1. The IntersUte Commerce Commig-
rion was given no power to order a carrier
to provide and furnish to shippers tank
cars for lutcrsUU shipmente of petroleum
Jroducte by the amenoment of the Act of
une 29, 1B06 (34 SUt at L. S84, chap.
3601, Comp. SUt. 1913, | SGS3), to the Act
of February 4, 1887 (24 SUt. at L. 879,
diap. 104), % 1, defining tlie t«rm "trans-
portation" as Including "cars and other
vehicles and all instrumenUlitles and facili-
ties of shipment or earrlage. Irrespective of
ownership or of any contract, express or
implied, for the use thereof and all services
in connection wiUi the reoelpt. delivery,
elevation, and transfer In transit, ventila-
tion, refrigeration or icing, storsge, and
handling of property transported," and mak-
ing it the du^ of every carrier subject to
^sTor other ei
Ic * KBY-NUUBER In all Ker-I'umbersd DigMta A iDdeieB
-gic
37 8UFREME COURT EEPORTER.
Oct. Tom,
tli« provisions of the Act "to provide and
furnish such tranaporUtion upon reaaon-
ftble request therefor," although by | 12
as amended by the Act of March 2, 1889
(25 Stat, at L, 888, ehap. 382, Coinp. Stat.
1913, § 8678), the Commission was au-
thorized and required to execute and
1010 (36 Stat, at L. S50, chap. 309, Comp.
Stat, J913, g 8681), was given power to
enter orders not only regarding rates, but
regarding classittcations, reguleUoni, or
practices, whether affecting rates or not. If
any duty to furnish suc^ cars exists, It
la enforceable in the eourU, not by the
Commission.
[EM. Note.— For oUur casn, ta* OominerM,
Cent. Dl?. t IW; Dec. DIb. rft;=kS5.
For ottasT daflnltloni. '»• Ward> and Phruea,
Flnt ud Becoad Sarle*. Tnasportatlon.]
COMUEHCE «=>9S — INIVBBTATE COVUEBOE
CoMjiieaioH— JvDiciAL Review — Facts.
2. A finding of the Interstate Commerce
Commission that a carrier has held itself
out to carry oil in tank cars is one of law,
not of fact, and therefore is reviewable In
the courts, where it is based upon a rule la
the oHieial class! fl cat ion providing rates
for articles in tank cars, which states that
the carriers whose tariffs are covered by
such classification aasumed no obligation to
furnish tank cars.
quired to provide, on or tiefore August 19,
IS16, and thereafter to furnish, upon Tea-
eonahle request and reasonable notice, at
complainants' respective refineries, tank cars
sufficient number to transport said com-
plainant*' normal shipmeDte in into^tata
fNos. 340 and S41.]
TWO APPEALS from the District Court
of the United States for the Western
District of Pennsylvania to review a decree
•ajoining the enforcement of an order ol the
Interstate Commerce Commission, requir-
ing a carrier to provide and furnish to ship-
pers tank ears for interstate shipments ol
petroleum products. Affirmed.
See same case below, IZ! Fed. 911.
£ Statement by Ur. Justlee HoKennnt
• * On petition of the Pennsylvania Paraffin
Worka and the Crew-Ijevldc Company the
Interstate Commerce Commission made the
following orderi
"It is ordered, that the Pennsylva
Bailroad Company be, and it Is hereby,
^tlfled and required to cease and desist,
^or before August 16, 19IS, and thereafter
■ to'abstain, from refusing upon reasonable
request and reasonable notice therefor
provide and furnish tank cars to the c(
plainants herein for Interstate shipments
of petroleum products, which refusal has
I>een found fu said report to be In viola-
tion of the provisions of the act to regulate
commerce and amendments thereto.
"It is further ordered, that said defend-
ant be, and it is hereby, notified and re-
'And it is further ordered, that this order
shall continue In force for a period of not
less thaji two yean from the date when It
shall taks effect"
The time of compliance waa subsequently
extended to November 16, 1916, on whidi
date the railroad company brought this suit
to enjoin the enforcement of the order. A
preliminary injunction was prayed, and, up-
on a hearing by three judges, was granted.
227 Fed. 911. To review that action this
appeal is prosecuted.
The Commission made quits elaborate
findings, which, however, ws do not think It
is necessary to quote in lull. It found the
produotion of the oil companies, and the
following additional facta:
(1) That 91 per cent of the oil produced
by the Paraffin Company waa shipped in
tanks, 11 per cent in barrels loaded in car*
other than tank cars, and 7) per cent In
pipe lines, while of the shipments made by
ths other company 86.6 per cent moved in
tank can, 4.7 per cent tn barrels and 8.6
per cent In pipe lines.
(2) For a kmg time the bulk of refined
oil in the United States has been shipped
in tank cars and tX present 91 per cent is so
transported. The railroad has been using
tank can for twenty-five yeara The oapao-^
ity of the cars is found, and they are soJJ
constructed that they may be rap idly* loaded*
at the refineries, and johbers and dealera In
refined oil throughout the country have ths
proper and necessary faeillties tor unload-
ing ths ears by graTl^ at their varioua
Btatlona
(3) The only other method of transport-
ing oU Is in barrsls or simUar container^
the cost of which is from S} to 3} cents a
gallon above the cost of tzansportation In
tank cars, and this makes such method of
transportation practically prohibitive, and
the refusal of Uie railroad to fumiab an ad^
quate supply of tank cars would tend to
drive out of business refiners who are un-
able to supply themselves with enough ears
to move their own products; and witneasea
for the railroad admitted that tank cars
are an eeonomio necessity for the transpor-
tation ot refined products.
(4) In 1887 the railroad acquired 1,308
tank cars, some of which have since been
sold to Independent refiners, but it owned
at the tjme of the hearing 499 cars, ot which
482 ars furnished to ihlppen of oil located,
on itsUnsa.
®=3For other
In all Kor-Numbsred DisasU t Indexis
L',aii..-,.-)-,.*^-.OOglC
u:«.
UHTTBD STATES t. PEinran.TANIA R. 00.
(6) At Uie time ot the hUTing the Pftraf-
fliL Company vwned 64 taolc c»n and the
Crew-Levick Compuij GT; aod it wu teatl-
fled th&t thcM eompuiiee for five or biz
7«ua hare daily made tnquiry for the de-
liverf of care to tfaem, and that formal or-
derB for can have been. coDBtantly on flie
in the railroad '■ offices.
(6) On November 11, 1812, ehortly before
the filing of the eomplainU before the Com-
niuioD, compl BID ante served notice upon
the rMlroad company, requeatlng it to fur-
niih a BuiTicient number of tank care to «hip
respectively 460,000 gallons of oU per month
from the Paraffin Company's refinery at
TituBville, and SaO,000 gallons per month
from the Glade [Crew-Levick Co.) Oil
Works at Warren.
To the reqneat of complainants, tlie rail-
dFoad company replied:
JJ "We tK^ to say that the railroad company
■ Is not*prepared to increau its present tank-
car equipment, but is prepared to transport
the commodities in question when prop^ly
contained In barrels or other similar re-
ti^ners at rates that are fair, reasonable,
ftnd nondlaerlminatory."
Solicitor General DktIb and Mr. Robert
Bzold for the United SUtea.
Hr. Joseph W. Folk for the Interstate
Commerce Commission.
Messrs. Jobn O. Johnson, Thomas
Patlerson, Frederie D. McKenney, and
Henry Wolf BikU for the Pennsylvania
Railroad Company.
Mesars. Charles D. Chamberllu and David
Wallerstein for the Crew-Levick Company.
Messrs. Samuel B. Clarks and diaries
Atwater ss amiei curia.
• * Mr. Justice McKenna, after stating the
Mse as above, delivered the opinion of the
The question in the case is. Has the Com.
mission the jurisdiotion eiercised by the
orderT It la not doited that the Commii-
sion has power over Uie general equipment
of a carrier, but it Is denied that it baa
power to require "vehicles of a special type
having no reference to the safety of trans-
portation," and to this distinction the argu-
ment of counsel for (be railroad eompany
is addressed.
ig The judgment of the district court bad
jjaomewhat broader basis. The court sai^;
* "The act to reguTate*Mmmerc« does not con-
fer upon the Interstate Commerce Commia-
sion all power over oars and other instru-
mentalities of shipment.'' And that, aside
from special enactmento, "Federal l^isla-
tlon regulating commerce, in so far, at least,
as it is contained in the act of 1SS7 [24
Stat, at L. ST9, chap. 104, Comp. Stat. 1913,
87 S. a— T
I 8SS8] and Its amendment^ has thus Hx
left carriers free to exercise their own judg-
ment in the purchase, construction, and
equipment of their roads and In the seloe-
tion of their rolling stock." Indicating that
the law conferred upon the CoTnmisaion the
power to prevent and redress unfair prac-
tices and discriminations, the court further
said; "We find nothing in the law which
confers upon the CommisBion power to com-
pel a carrier to acquire facilities it does not
possess, or to acquire better facilities than
those it possesses, not with the object of
preventing discrimination and preference^
but in order that the shipper may have
larger, better, and perhaps mors economical
facilities."
And coming to consider the question of
power conferred by the Interstate Commerce
Act of ISST, as amended in 1906 [34 SUt.
at L. 584. chap. 3691, Comp. Stat. 191S, |
86S3], the eourt decided that the amen.d-
ment "added nothing to the original duty of
the carrier aa prescribed by the original
act and as interpreted by the Conuniu^on,
and vested In the Commission no Increase
of power over cars as instrumentalities of
shipment."
To this proposition the United States and
the Commission oppose the contentions that
"it is the duty of every interstate carrier
to provide and furnish upon reasonable re-
quest such cars as are reaaonably necessary
for handling the normal trafflo of which It
is a common carrier," and that the Commis-
sion is givoi jurisdiction to enforce tha
duty.
^e power of the Commission has been
given precedence and dominance in the argu-
ment, tiit extent of the duty of carriers
coming in secondarily, though important to^
be con^dered. In other words, the main''
queation*presaited is, whatever be the duty*
of carriers as to the equipment they must
have or furnish, whether the Interstate Com-
merM Commission is the tribunal to enforce
the duty.
A comparison of the act aa passed in 1887
with the amendment of 1900 becomes neces-
sary, and a consideration of the rulings un-
der the former aa an interpreter of the latter.
The Act of 1887 (24 Stat, at L. 379, chap.
104, Comp. Stat. 1913. | 8663) provided
thal^
"The term "raitroad' as used In this act
shall include all bridges and ferries used or
operated in connection with any railroad,
and alio aQ the road in use by any corpora-
tion operating a railroad, whether owned or
operated under a contract, agreement, or
lease; and the term transportation' shall
include all iasteumeatalities of shipment or
The word *Hr«nBportatlon" Is tho crucial
vA_iOOglC
ZJ SUFBXHE GODBT BSTOKTEB,
OOT. HmM,
wwi, and ita definltitni in Uw Mnendinent
of 190S ia M followa:
". . . ftnd the term truuportatlon*
■hail include cua uid other Tel^clea and
all mstrumentalitiei and f&dlitiM of aUp-
mMt or curiage, IrrespectWe of owneraliip
or at any contract, sxpresB or implied, for
tlie nae tiiereof aad all ■erriccB In eonnec-
tlon witli the receipt, delivery, eleritioa,
and transfer in traJiait, Tentilatlon, refriger-
ation or icing, atorage, and handling of
property transported; and it shall be ttie
daty ol erery carrier lubject to the prori-
wioTia of this act to provide and furnish auch
tnuiaportatioD upon reaeonable request
therefor. . . ." And this, it la contended,
mnat be read in conneotion with ) 18 as
amended March Z, 1889, aa follows:
". . . and the Commisiion is hereby
authorized and required to execute and eu-
foTce the proTlBiona of this set." (E6 Stat,
at L. 85S, 8S3, chap. SS2, Comp. Stat. 1B13,
it 8680, 8S7e.)
Section 1 of the Act of I8BT came before
the Commission for consideration, and the
Sdnty thereunder of carriers to furnish taok
^ ears for the transportation ot petroleum, in
* Soofleid T. Lake Shore & M. S. B. Co. 2 I.
C. 0. Rep. 90, 2 Inters. Com. Hep. 67. The
i^inion is too long to review. It Is enough
to say of It that it considered the conditions
of the oil trade, the different methods ol
■hipping oil in barrels and in tank cars, and
stated that the latter method had become
established, though very few of the rail-
roads of the country owned tank cars; com-
pared the cost and advantages of the
methods, and from this declared that it was
obvious that where the carriers did not
furnish tank cars, one shipper could not
oompete in all respects upon equal terms
with another shipper who furnished tank
cars for the transportatioQ of his oil, un-
less he also furnished tanlcs; and, following
a former decision, declared that it was prop-
erly the buuness of the carrier to supply
tha rolling stock for the freight he offers
or proposes to carry, and that if the diver-
sities of the traffic are such that this Is
'^ot always practicable, and consignors are
allowed to supply it themselves, the carrier
must not allow his ovm deficiencies In this
particular to be made the means of putting
at an unreasonable disadvantage those who
moke use in the same trafBc of the facili-
ties he supplies." To prevent scch dia-
advantages or preferences the Commission
decided it had powtf ; to enforce the duty
of supplying cars It decided it had not the
power.
Section S of the act was asserted against
the conclusion, and the Commission replied
that that section ai^Iied only to lacilities
faatweoi eonneotiog lines, and did not em-
brace ear equipment for the origination ol
frei^t; and, referring to | 1, it was said;
"Iha term 'Initmmentalities of ahipmeiii
or carriage,' as found in the first section rf
the statute, of eooise includes ears, but thcf
are such cars as are provided by the carrier
or used by It In interstate commerce, and
the statute nowhere clothes the Couuuiasion
with power to determine what kind of ears
the carrier should use lor this purpose andg
require the carrier to place upon its linsM
foT*Tue in this business such kind and num-*
ber of ears as the Commission may decide
will constitute a proper and necessary equip-
ment of car service. The duty of eveiy such
carrier Is none the less obligatory at com-
mon law, and fay its charter to furnish an
adequate and proper cor equipment for all
the business of this character it undertakes
and advertises in its tariffs it will do. The
statute does not undertake to dotha the
Interstate Commerce Commission with the
power by summary proceeding of compelling
a railroad company to perform all his com<
mon-Iaw duties, but leaves many of thess
to be^ enforced in the courts by suits for
damages and by other proceedings, . . -
"The powN, if it should be held to exist
at all, on the part of the Interstate Com*
meree Commission, to require a carrier to
furnish tank cars when that carrier is fur-
nishing none whatever in its business, wonM
apply equally to sleeping ears, parlor cars,
fruit cars, refrigerator cars, and all manner
of cars as occasion might require, and
would be limited only by the necessities ol
interstate commerce and the discretion of
the Interstate Commerce Commission. A
power BO extraordinary and so vital, reached
by construction, could not Justly rest upon
any less foundation than that of direct oz-
presslon or necessary implication, and we
And neither of these in the statute."
And it was declared that the lawmaking
power had not Itself undertaken the respon-
sibility or clothed the Commission with the
responsibility of directing a carrier to sup-
ply itself with any particular kind of equip-
ment or cars, or, in fact, any equipment or
cars at all for the transportation of freight
over its line. It will be observed, therefor*,
that all of the elements that entered into
the problem of (he power of the Commission
and the reasons which seemed to impel its
exercise were considered.
There was a repetition ot the elements
and decbion in Be Transportation A R*-
frigeration of Fruit, 10 Inters. Com. Kep.N
360, 373 (1S04). It was there said thatfi
the Commiarion was of opinlon^that it wat*
the duty of railroad companies to furnish
refrigerator cars for the traasportatiou of
fruit; that at one time carriers mi^t
hava declined to proride this spedol kind
,A_.OOglC
UlS.
DNITED 8IATH8 r. PENNSYLVANIA B. Oa
of equipment, but that Uia tnAt hMA w)
grown that the earrieri "might as well do-
dine to proTide atock care for the transpor-
tation of lire itoelc m refrigerator eari for
tha carriage of perishable Gommoditiea." It
waa, however, added: "But thii duty doea
not apring from the act to r^ulat« com-
merce, nor haa this CommiBBlon anj Jurli-
dietion of that matter. It ariaea out of
the common-law liability of the defendant
railwaj companiea aa common carrier*, and
redrew for failure to fulfil It must be
■ought In the courts."
Certain abuses were pointed ont in that
eaae and the tendency of the ownership of
ears by private car Ilnea to monopoly, and
as a consequence It was urged upon the
Commfasion that carriers should not be
permitted to make exclusive contraeta with
private car line* like those then under con-
■ideratlon, but should be compelled to pro-
Tide their own equipment. The Commission
replied, at page 377: "The facta before ub
call for no expression of opinion on that
mbject, and none is attempted-"
Thie, then, was the view of the Interatate
Commerce Commission of the duty of car-
riera and of ita power over them; that Is,
that It waa the duty of carriers to provide
■nd fvmish equipment for transportation
of commodities, and that this duty might
■ipand with time and conditions, the spe-
cial car becoming the common ear, and the
■hipper'a right to demand it receiving the
■auction of law. But the Commission de-
rided it was the aancUon of the common
law, not of the statute, and that the rem-
edy waa in the courts, not in the Commis-
■ion. With this view we start aa the first
•lement of our decision.
But a change in the atatute and remedy
b asserted, — a change, it is further assert-
?"ed, consequent upon a demand for a greater
k^inistrative power and remedy, To^sus-
teln the aaeertions the reporta of the Com-
misaion are adduced, the legislation it
recommended, and the commeuta of the 1%-
SalatoFB.
It ia especially to be noted Uint the
amendmeiit of 1900 la In the exact language
of the recommendation of the Gommiuion,
•a far aa eoncema that part which deflnea
"railroad" and "trauaportation."
The Senate committee on interatate oom-
nerce bad instituted an extended inquiry
■nd members of the Commission appeared
before the special committee which had
been appointed and presented a bill which
the Commiaaloners said embodied their reo-
(mimendationi, and which the Commission
•nbaequently made part of Its 19th annual
report. Significant erplanationa accompa-
ntod the bill. It waa stated : "The form of
tlM proposed meMore, aa will appear upon
inspection, Ii an amendment of certain aeA-
tiona of the present itatute. . . . Aslda
from the main queation — the grant of power
to the Commiaaion, after hearing, to ftx the
future rate — several other amendments are
proposed with the tIcw of improving the
law as a remedial measure, and thew
amendments will now be referred to under
appropriate headings, one of which waa u
*Tnlargamant of Jurisdiction.
*It will be seen that the changes proposed
In the firat section are designated (a) to
somewhat Inercaae the jurisdiction of the
law aa to the oarrlera subject to Ite pro-
viaions and (b) to bring within the scope
of the law certain charges and practice!
which are not now subject to regulation, or
respecting which there is dispute as to the
power of the Commission. The first pnr-
poae ia accomplished by leaving out of the
firat paragraph the phraae 'under a eommoa
control, management, or arrangement,* In
order to reach certain classes of carriera
which are now exempt from the obligations^
and requirements of the act. ^s seconds
■fiurpoae la sought to be accomplished by>
enlarging the definition of the term tran»>
portatlon,' so aa to include the charges for
various aervicea, such aa refrigeration and
the like, which are now claimed to be be-
yond our authority, ^e obligation to fnr-
niah and provide the serrlcea here referred
to Is also impoaed, which Is likewise a point
now in dispute. No other changes are pro-
posed in the first five sections of the act,
which are commonly spoken of as contain-
ing its principal or anbatantlve proviaiona.
In other worda, the only amendment ang-
geated in thia r^ard la an enlargement of
jurisdiction. In this connection, and aa il-
lustrative of the mattera here referred to,
the subject of refrigeration chargea may be
properly considered."
lien followa a eonalderatlon of refrigera-
tion charges, the dispute that existed aa to
whether the shipper or the carrier ihould
bear the ezpenae of refrigeration, and the
controversy over the jurladiction of the
Commission. It was aald that "the Con-
greaa ought to make that aerviee, by eipresa
provision In the law, a part ot the trauapor-
tation itself. We do not at this time rec-
ommend that carriers should be prohibited
from uaing private eara or from employing
the owucra of such cars to perform the
icing service If they find ttiat course to their
advantage, but we do recommend that these
chai^tes should lie put on the same basis as
all other freight chargea. They should bs
published and maintained the same aa the
transportation charge, and be mbjeot to
the same svperrialon utd aontrol.''
A^iOOglC
IM
S7 8UPREUE COUBT REPOBTEB.
Ooi. TwtM,
Under tli« heading; 'Tenniud Bo»da,
Elevator Chugei, and Friyato Can," the
following vas aaidi
"It hu been luggeetod that the Congress
should prohibit railwaje from employing
any agencj or nsing any facility In the
transportation of property which is fur-
0 nished by the owner of the property. We
S should hesitate to recommend at this time
• so drastic a measure as that.* Assuming
that such a law would be a constitutianal
exercise of authori^, it would serioualy in-
terfere with property rights which have
grown up under tbe present system. More-
over, there are many instances in which the
aerrice can be rendered or tlie facility fur-
nished more advantageously both to the
shipper and railway, and without injury to
the public, if provided by the shipper him-
self."
After commenting on the amendment to
I 18 and the added J 16a, the Commission
explained that —
"It will thus be seen that the substan-
tial amendments proposed are few in num-
ber and easily understood, the remaining
ohangea being merely snch as are needful
to harmonize other parts of the act with
tbe main amendments ... In brief, the
proposed measure amends certain sections
of Uie act to regulate commerce and is con-
fined to such recommendations as are
deemed neceseary to effect Its intended pur-
pose, and thereby furnish adequate protec-
tion against excessive and discriminating
eharges."
It will be observed that there ts not one
word in the report that indicates that there
was a necessity or desire tor the power eser-
clsed in the order under review. Indeed,
there was directly expressed an approval
of private cars, and the opinion declared
that they were a facility which could be
furnished more advantageously both to the
shipper and the railroad, without injury
to the public, if provided by the shipper
himself, and the recommendation was that
they be brought under the jurisdiction of
the Commiseion and thereby prevent oppres-
■ive and discriminatory practices; the prin-
ciple Iwing, to borrow from another, that
all services incident to transportation,
whether primary (carrying the goods) or
accessorial (caring for the goods in transit
whenever such care calls for special facili-
aties or special equipment), should be sub-
Sject to the same supervision and regulation.
* * But is there anything in the words of the
amendment which exhibits on the part of
Congress a larger knowledge of conditions
than the Commission had, and that Con-
gress, In a broader comprehension and
Judgment of the conditions and their
remeij, gave the Commission a greater
jurisdiction than that which In any way
occurred to it was necessary t
The act aa it was enacted in 1B87 defined
tbe term "rsilroad" and the term "trans-
portation," the latter aa follows: "And the
term 'transportation' shall include all in-
strumentalities of shipment or carriage."
The definition was very comprehensive, and
needed not the mobilization of its denotap
tion; but this subsequently wsa attempted.
Words, indeed, were multiplied — was mean-
ing changed t
In 1008 tbe term "transportation" was
defined to "include cars and other vehicles
and all instrumentalities and facilities ol
Eliipujent or carriage. . . ." The words
are not much less general than the words
of the Act of 1S87. There is no advanca
made by them or enlargement of meaning.
There was simply a useless tautology. But
granting it was not and that Congrew
deemed a special declaration of things t«
be accessary, such declaration did not alter
the relation of the companies ta them. The
duty which attached to "instrumentalities"
o{ the Act of 1887 attached to tbe things
covered by its comprehensive generality, —
to the things declared in the amendment of
1900, that is, to "cars," "vehicles," "facili-
ties." And this duty under the Act ol
1887, we have seen, had, in the opinion of
the Commission, the sanction only of the
common law. Under the amendment the
most that can ho said is that the duty is
particularized. Its sanction ia not en-
But otlier words occur which. It la con-
tended, have such effect. These words are:
"And it shall be the duty of every carrier
. . . to provide and furnish such trana-
portation upon reasonahLe request therefori,
'This, however. Is but the expression of a*
necessary implication. It was useless to
declare that whatever a carrier must do, he
must do "upon reasonable request." The
duty having been imposed, It uccessarily
could be demanded. But the expression of
the right, if it needed expression, adds
nothing of indication to the previous words
of tbe tribunal by which the demand was to
be enforced.
But it is said the duty having explicit
declaration, the power to enforce it waa
found in 3 12 as amended March 2, 1B99,
as follows: "And tbe Commission is here-
by authoriied and required to execute and
enforce the provisions of this act." [26
Stat, at L. 855, 8S8, chap. 382, Comp. SUt.
1913, §g 8569, 6576.)
But this casts us bade to our general
considerations, to which we may only add
that there was no question of the duty of
carriers either under the Act of 1S87 or
,A_.OOglC
1911.
UNITED STATES t. PENNSYLVjUJIA R. CO.
101
under tlie amendment of 190S. It wm their
dutj under both to fumiih the instnunen-
talitiea of trunportation. The question !•
whether, under the Utter, as under the
former, jurisdiction to enforce the duty was
at common law in the eourta, or under the
•tatute and in the Commlailon; and we have
wen that it nu the view of the Commieaion
that the remedy was in the eoorta, and
that the amendment of lOOS waa not in-
tended to and did not chaJige the remedy.
In other worda, that Congreu in effect ac-
cepted the explanation of the Commigeion
and approved ita declslona. We repeat, the
amendment of 1908 wns drawn by and rec-
ommended 1^ the Commiaaion, and It may
be aaaumed was not intended to have nor
given larger import in the law than it had
in the recommendation. United States v.
Louisville * N. R. Co. 236 U. S. 318, 333,
et acq., 59 L. ed. 698, 005, 36 Sup. Ct. Rep.
863.
There was amendment In 1010 [36 Stat.
at L. eSO, S61, chap. 309, Comp. Stat. 1B13,
H acsi, S683]. not of S 1 in any particu-
lar relevant to our diaeuadon, but of JJ 13
^and 16. It was said by the committee
S which reported them for eonaideration that
» under ) 16, as It then stood, the'authority
of the Commission to enter an order was
"conflned to the subject at rates tor trans-
portation and regulations or practices 'af-
fecting such ratea,' and the eatablishment
of through routes where "no reasonable or
•atisfsctory through route exists.' ** And
tlie committee added that as recommended
to be amended g 16 "will have its scope
largely increased and the jurisdiction of
the Commission will be much enlarged;"
and that "by the amendment the Commission
b given jurisdiction to enter orders not
only regarding rates, but regarding clasai-
fleations, regulations, or practices, whether
they affect ratea or not, and make orders
requiring conformity thereto."
"Practices^' were not otherwise or pre-
daely defined either in the report or in the
amoidment recommended and aa finally
passed. Regarding only its broad generality
anything may be asserted of it; regarding
its contest and the conditions which exist-
ed, an immediate limitation of it is Indi-
cated, made neceasaiy, as we shall present-
Section 16 provides that whenever, after
full hearing, as provided by 3 13t Uie Com-
mission should be of opinion that any in-
dividual or jrfnt rates collected by a com-
mon carrier or "that any individual or joint
classifications, regulations, or praoticea
whatsoever of such carrier or carriers sub-
ject to the provisions" of the act are "un-
just or nnreasonahle or unjustly discrimi-
natory, or nnduly preferential or prejudicial
or otherwise in violation of any of the pro-
visions of &e act, the Commission la au-
thorized and empowered to determine and
prew:rib« what shall be the just and re^
sonahle rata or rates and "what individual
or joint classification, regulation, or prao-
tiee is just, fair, and reasonable," and make
an order that the carrier shall cease and de-
sist from the oharging of excessive rates,
and shall adopt the classification and eon-
form to and observe the regulation or prac-
tice prescribed; the order to continue such
time, not exceeding two years, as shall beA
preacrihed by the CommissioD. m
• Applying the eection, it is contended that*
the neglect to provide or certainly the re-
fusal to furnish tank care is a "practice,"
and became especially so by the reply mads
by the railroad to the request to furnish
Let US teat the contention and see where
it takes us. The request was for a special
facility, a combination of package and
car, and the question, then, is whether the
neglect to provide it or to furnish it was a
"practice" within the meaning of S 15. The
far-reaching effect of an affirmative answer
is instantly apparent, and there must be
hesitation to declare it from the use of so
inapt a word aa "practice." Following a
well-known rule of construction, we must
rather suppose Its association was intended
to confine it to acts or conduct having the
same purpose aa its associates. And there
were many such acta for which the word
could provide, — practices which confused
the relation of diippera and carriers, bur-
dened transportation, favored the large ship-
per, and oppreased the small one. These
have illustrations In decisions of the Com-
mission. And this was purpose enough,
remedied all that was deemed evil in pri<
vately owned cars of any type. Beyond
that it waa not necessary to go; beyond
that there were serious impediments to go-
ing; and we cannot but believe that if be-
yond that it was intended to go, there
would have t>een explicit declaration of the
intent, with such provision aa to notice and
time and preparation as Its consequences
would demand; not ambushed in obscurity
and suddenly disclosed by construction to
turn accepted custom into dclinqueni^j, — a
construction that could be disputed and was
disputed.
Three aommlssloners out of seven dissent-
ed, they declaring that if the act couferred
power upon the Commission to order a car-
rier to enlarge its complement of cars it
would follow that the Commission had also
the power to order enlargement of terminal
facilities, increase in the number of locomo-
tives, and extension of tracks or branches. n
'In fa«t. It was said that no faolllt; of trana-?
.A^iOOglC
102
ST SUFRSiMIl COUBT BEPOBTBB.
Oct. :
p,trtation would ba taempt. Tha purpose
tA the provision reviewed wa* declared to
be the regulation of facilitiea poaaeeaed b;
the carrier, that there should l>e no uojuat
diRcrimination, and the plain intent to be
that tlie ahipper should Dot be required to
deaJ with anj other than the carrier. And
thia, BB far aa we can glean from the
extensive congreBBional literature, was the
end sought. In other words, it waa on ac-
count of the abuses of the private car ays-
tem, not in its uses, that legislation waa
There was some aentiment outside of the
Commission for the abolition of the priTate
oar system, hut abolition waa not attempt*
ed. It would have been a short cut to the
•olution of the problems and could easily
have been aocomplished by requiring the
railroada to furnish all of the equipment
necsBBary for taliing care of ail kindi of
traffic. But neither the government nor the
Conuniaaion contends for such an extreme,
and to forestall the charge that the order
baa Buch tendency represents that the duty
of the carrier to furnish special equipment
is not absolute, but relative to the condi
tions of trade and the business of the
shipper. This weakens the principle upon
which the duty is baaed. If there be a
duty, it would seem neccBsaiily to be un
veraal. And anch contention is growing.
A friend of the court appears in the form
of a salt company and presents an argu-
ment in support of the order of the Com-
mission and BSBerta the right to a special
equipment for the transportation of salt in
bulk.
Little more need be said. Private c
came into eiistenca SkS conveniencea
necessities to particular bueineases, dsTelop-
iiig by degrees and differentiating accord-
ing to conditions. It waa said In argu-
ment that there are different kinds of tank
cars for different oila and liquids, and there
are cars for live stock, fruit, live poultry,
^ milk, and, as we have seen, salt in bulk.
N What others tiiere are neither the record
* nor the argument baa given UB*lnfonnBtion,
nor the extent of their specializaUon. How-
ever, the information is not needed. The
facts of the present case illustrate the
dition of the carriers of the country. De-
scribing It, the Commission says:
"The bulk of the movement of refined oil
fa in tank cars owned by the shippers. In
188T the Pennsylvania Railroad acquired
1,308 tank cars, some of which have subse-
quently been sold to independent refineries.
Defendant now owns 49B tank cars, all that
remain of those purchased Id 1887, and 482
of which are furnished to shippers of oil
located on its lines. The other railroads
•■at of tha Hiasissippi river own, in the
aggr^ate, only 303 tank cara. Hie private-
ly owned tank cars east of the MiBsissippl
aggregate about 27,700, and the total num-
ber of tank can owned in tha United Statea
was given as approximately 40,000."
This, then, waa the situation of the rail-
road, not dissimilar to that of other rail-
roads, not therefore created in deliberata
fault, but in acconimodation to conditions
useful to shippers, a4vant«geous to the
railroad, bene&cial to the public, as tha
Commission had declared ; and yet a chang*
is suddenly required. The burden of th«
requirement we shall preacntly notice.
Of course, if there is a duty upon a car-
rier to fumjsh tank or other special can
upon request, its enforcement cannot bs
arrested by the burden it imposes; but hers
again the thought obtrudes, which we hava
already expressed — it may be to tiresoms
extent — that if Congress had Intended such
consequence with all that it implies of ex-
pense, directly and indirectly, it would not
have left ita intention to be evolved from
obscure language, but would have put it in
explicit declaration and with notice and
time for accommodation to It.
It is to be remembered that the tank
car is both package and car, muat have
special mechanical means of loading andg*
unloading. May these, too, be orderedlU
Are theynot a "method and manner of pre-*
sentlng, marking, packing, and delivering
property for transportation," to use the lan-
guage of S 1, aa amendedl
It is difficult to particularize all that thl
ruling of the Commission implies of power.
What of omission or commission in the car*
rier's relation to the public may not b*
said to be a practice or practices in the
broad sense attempted to be given to thoaa
words I A railroad's powers are its duties,
bearing, of course, obligationsi and all id
them by the asserted construcUou are airqtt
under the jurisdiction of the Commission,
— so swept by a single word, not of itself
apposite, and determined besides by its a*>
sociation against the contention. This waa
apparent to the dissenting Commiasionera
and repelled their concurrence. Well might
they have recoiled from going to such ex-
treme upon doubtful implication, and ban
been impelled to declare, aa they did de-
clare, that if Buch power was given, it logt-
cally and necessarily extended to ewaj
facility of transportation.
As to whether this is desirable, we ex<
press no opinion, and we only mean now
to say that it was not expressed as deair-
able in the statutes which we have con-
aidered, nor waa there a word or a line
from the Interstate Commerce Commission,
BO far as the record shows or intimatea, of
recommendation of such result. Indeed,
,A_.OOglC
ISIB.
UNITED STATES y. PENMSYLVANIA H. 00.
there is inUmatioii Uini snch result wonld
b« radicftl, mnd, as raid by tbe rmilroftd
compftDjr, "the Safety Appliance Acts indi'
cate that when Gongreas contemplates the
imposition of obligations with respect to
the equipment of carriers. It covers the sub-
ject by careful, speeifle rules." ABd
may further say with the company that "it
la pertinent to inquire why committees of
Congresa should consider, as they continue
to do from time to time, ths wisdom of de-
Tolving on carriers the dufy to furnish
steel coaches for passenger traffic, If al-
ready the provisions of the act to regulate
« commerce are broad enough to cover mat-
« ten of this kindT" And'there is strength
(n the obeerration of tbe railroad oompaoy
that if the argument baaed upon the word
"practica" or "practices" were sound, "it
could be contended with equal reason that
every detail of raiboad operation is a prac-
tice within the meaning of the act; why
should the Commission ask that it be em-
powered to require the use of the block sig-
nal systemT (Report of 1913, page B2.)
Why ahould the Commission moJce this re-
quest if, because of its jurisdiction with
respect to practloes, it is already endowed
with power to regulst« the details of opera-
tion of carriers!"
Tbe United States and the Commission
Insist that they have authority of eases for
Uieir two fundamental propositions, to wit:
<1) That it is the duty of the railroad to
fomish equipment for the transportation
of producte; and (2) that the Commission
has the joriBdiction to enforce that duty.
nie authorities upon the first proposition
we are not concerned to review. The duty,
■s far as this question Is concerned, may be
admitted, — certainly admitted in its general
sense. But we need not pause to distin-
guish its application in the cases to special
equipment as distinguished from common
equipment, or how much the decisions were
baaed upon the belief of the shipper, Justi-
fled or encouraged by tbe railroads, that
the equipment required would b« furnished.
WtUt tbe second proposition we are con-
cerned, and a consideration of the cases be-
comes necessary, as they are cases in this
eonrt and are cited to sustain tbe power of
the Commission. They are as follows : Chi-
cago, R. I. ft P. R. Co. T. Hardwiek Farm-
ars Elevator Co. 22G U. S. iZS, 57 L. ed.
284, 48 L.R.A.(N.S.) 203, 33 Sup. CI Kep.
174; Ellis V. Interstate Commerce Oommls-
■Ion, S37 U. B. 434, GS L. ed. 1030, S5 Sup.
Ct. Rep. B4S-, Yazoo ft U. Valltry R. Co. t.
Greenwood Grocery Co. £27 U. 8. 1, 67 L.
ed. 3B9, 33 Bup. Ct. Rep. 218; Missouri, K.
A T. R. Co. V. Harris, 234 U. S. 412, 68
L. ed. 1377, L.R^.I915E, 942, S4 Sup. Ct.
Bep. 700i Uenaaha Paper Co. t. Cbleago ft
N. W. H. Co. 241 U. S. 65, 00 L. ed. 886,
36 Sup. Ct Bep. 501. M
* The Hardwiek Elevator Case passed upon?
a law of Minnesota, known as the Minnfr-
sota Heoiprocal Demurrage Law, which
made it the duty of a railroad company on
demand from a shipper to furnish cars for
transportation at terminal points within
for^'Cight hours and at intermediate points
within seventy-two hours after such de-
mand, Sundays and legal holidays eieepted.
A penalty was imposed for each day's de-
lay. This court held that by § 1 of tbe
Hepburn Act Congress had legislated con-
cerning the delivery of cars in interstate
commerce by carriers subject to the act.
This was baaed upon the definitions of g 1
of the provisions of SS 8 and B. The quef
tioQs in the case were not those in the pres-
ent case. Hie kinds of equipment were not
involved nor the questions dependent upon
them. The only question was as to whether
Congress had entered the field of regnla-
In Yazoo ft M. Valley R. Co. v. Green-
wood Grocery Co. there was also involved a
statute which penalized delays in delivering
ears. It was held to be within the decision
of the Hardwiek Elevator Case, as It on-
doubtedly was.
In the Harris Case, the Carmack Amend-
ment [34 Stat, at L. 693, chap. 3591, Comp.
Stat. 1913, g 8692] was decided as not ex-
cluding a state statute allowing an attor*
ney's fee in certsJn actions baaed on claims
for sm&II amounts against railway com-
panies. It has no relevancy to the present
Hie Ellis Case grew out of a r^t assert-
ed by the Interstate Commerce Commission
to inquire whether Armour ft Company,
shipping packing-house products in com-
merce among the states, was controlling the
Armour Car Lines and using them as a de-
vice to obtain concessions from the pub-
lished rates for transportation. A series
of questions were put to a witness in regard
thereto which he refused to answer, and
proceedings to compel his testimony were
instituted. A question of the power of the
Commission was presented and that *as5
made to depend upon whether the Armour"
Car Lines was a*common carrier subject to
the Interstate Commerce Act. It was re-
plied that the Car Lines Company had no
control over the motive power and move-
ment of the cars and was not a common
carrier subject to the act. And this was
■aid; "It is true that the definition of
transportation in g 1 of the act includes
such instrumentalities as Oie Armour Car
Lines lets to the railroads. But the defini-
tion Is a preliminary to a requirement that
the canlera shall furnish them upon re»-
L',aii..,-)-,.*^-.OOglC
n SUPBEME COUBT REFORTEB.
Oct. Tan,
WMwlde nquest, ttot tlwt tho ownen and
builder* shall be regarded aa carrien, eon-
tnrj to the truth." The language waa
perfectly apposite to the question under
consideratioD, the relation of tho Armour
Car Line! to the Armour Company and to
the railroad. The cara the latter obtained
from the Car Lines Company conatituted
the equipment of the railroad company and
were, of course, subject to the provisions
of the Interstate Commerce Act.
The question with which the present case
ia concerned waa not presented to the court
nor intended to ba decided. Tha testimony
•onght by the Commlasion waa to expose
and prevent what were supposed to be dis-
criminatory practices, and the right to re-
quire the teatimony depended, it was the
effect of the decision, upon tlie relation of
the Armour Company to the Armour Car
Lines through the railroad, and whether
what was paid to the Armour Car Lines
was in effect paid to the Armour Company
and made a means of discrimination. This
view waa rejected and it waa said: "It
does not matter to the reaponsibility of the ]
loads whether they own or simply control
the facilities, or whether tbey pay a greater
or a less price to their lessor,"— the lessor
of that case being the Armonr Car Lines;
and, as it was not abown that it waa mors-
ly the tool of the Armonr Company, it had
immunity from the investigation, ^e ease,
therefore, is not authority for the proposi-
tion which It is urged to support.
M Menaaha Paper Oo. v. Chicago A N. W.
• S. Co. needa>no comment. It quotes but
att^npts no explanation of the words of
ttaa statute that is relevant to our present
Inquiry. Indeed, in all of the casea the
points of inquiry and decision were different
from the case at bar. They declared or en-
forced or recognized the general duty of
earriera under the particular facta and the
law to which the carriers were subject.
It is next contended by the United States
that the railroad has held itself out ipeciflc-
allj to carry oil in tank cars, and the
tact. It is said, has been found by the
Commission and is not reviewable, citing
United States v. Louisville t N. B. Co. 235
U. S. 314, 320, E9 L. ed. 245. 250, 35 Sup.
Ct. Bep. 113. We are unable to assent.
The railroad company in its answer to
the petition before the Interstate Commeree
CommiBsion alleged that rule £9 of the
official claasiflcation No. 39, providing rates
for articles in tank ears, stated that the
carriers whose tariffs were covered by such
classification did not asBume any obligation
to furnish tank cars. Tbera Is a conceesion
in the brief of the Interstate Commerce
Commission that such waa the publlahed
tariff, though contesting Ita efflcac7 to de-
veat the company of ita dnty as a oarrler.
This might be if there was a duty; but the
United States seeks to eatabliah the duty
from the offer of the company, and must
take the offer as made, and cannot, nor can
the Commission, ignore its explicit quali-
fication that the company assumed no obli-
gation to furnish tank cars. Hie finding of
the Commlasion, therefore, was one of law,
and not of fact, and is reviewable.
The railroad company, besides the conten-
tious of want of power in the Commission
to maka the order under review, object to
it (1) in that it Is defective because it
requires the company to supply cars for
movement over the lines of other carriers;
and (2) that It is not administrative in
character, but la uncertain, iudeflnita, and^
unlawful. n
• In support of the first contention the rait*
road company points out that the company
owns more tank cars than all of the other
carriers cast of the Mississippi river,
amounting at the time of the hearing to
499 cara. The total ownership of other cars
east of the Mississippi river amounted to
303, and tha privately owned tank cars to
27,700. It therefore appears. It is said,
that tha railroad ownership is less than 3
per cent of the total ownership, and that
of this S per cent the company Is furnish-
ing more than half. The company, tlier»-
fore, asserts that if It be oompelled to fur-
nish all of the tank cara required for the
transportation of oil on its line, Irrespee-
tive of their destination, it is obvious that
a burden out of all proportion is placed
upon it. It further complalna that although
the New York Central Bailioad serves the
oil companiea equally with it, no order ia
made against that company, but, on the oou-
trary, the entire burden la devolved upon
it.
In support of tha second contention, tha
company asserts that the order of tlie Com-
mission is not administrative is indicated
by decisions of this court in actions for
failure to furnish cara The cases are:
Louisville k N. B. Co. t, F. W, Cook Brew-
ing Co. 223 U. S. TO, Sfl L. ed. 356, 32 Sup.
Ct. Bep. 18fl (1912) ; Eastern H. Co. v.
Littlefield, 237 U. S. 140, SS L. ed. 876, SS
Sup. Ct. Bep. 480 (1S15) ; Pennsylvania R.
Co. V. Puritan Coal Miu. Co. 237 U. S. 121,
69 L. ed. 867, 35 Sup. Ct Bep. 484 (1816) ;
Illinois C. B. Co. r. Mulberry Hill Coal Co.
236 U. S. 275, 69 L. ed. 130B, 35 Sup. Ct.
Rep. reo (1916).
Again, It is charged that the order ex-
pressed by a legislativs principle has tha
generality of such principle without any
criterion of application. The order requires
the company to "provide upon
reasonable request and reasonable notion
,A_.OOglC
Ul*.
GOSHEN HFG. CO. t. UYEBS MFO. CO.
105
■I complftluAiits' respeetiT« refineriei, tuib
Mri in aufficient number to transport com-
plainMits' normal ihlpmenti in interatat*
oommarM." What ii a reuonabla request
or msonable notice, and what aro normal
^■hfpmental The order affords no uiBwer,
gand U tha railroad company venturei, how-
• ever honestly/any resiEtance to a request
or notice not deemed reuonable, or to ahip-
nenta not deemed normal, it mutt exereiu
this right at the risk of a penalty of (6,000
a day a^inst all ol its responsible officers
and agents. Hess considerations are Tory
serious (International Harrcatar Co. v.
Kentncky, 234 U. a ElS, fi9 L. ed. 1284, 34
Sup. Ct. Sep. 8S3i Collins t. Kentucky, 234
U. S. 634, G8 L. ed. IGIO, 84 Sup. Ct. Bep.
024), but tha riew yrt have taken of the
power of the Commisaion to make the
•rdar, however definite and eircumaeribed
it might have been made^ renders it nn-
necessaij to pass upon tha contentions.
Decree afBnned.
(W V. B. m)
OOSHEN iSASUF AUnmiva COMPANY,
Petitioner,
Vatkwtb ^=280— Eqti ITT— Juris DicTi dm—
Patent Suit— Remedt at Law.
A suit afnilnst a corporation for the
tatter's alleged infringement of a patent for
a hoisting device is justiciable In equity, al-
though the corporation bad sold its entire
plant and nroperty before the suit was com-
menced, where It still retained the owner-
ahlp of a subsequent patent under which it
asserted the right to Infringe, and deni(>d
complainant's rights, and asserted In such
•nit a conn terra il in g right, submitted for
legal judgment, and had, besides, shortly
before such suit was begun, sued complain-
ant's assignor la a state court for injury
to its business because of an advertisement
charging infringement, published a year be-
fore, and in that action had alleged that
it "is a corporation duly organized and ex-
isting under the laws of the state of In-
diana, and is now and has been for more
than five years last past engaged In the
bnaineaa of manufacturing hay ears," since
such conduct must be regarded as a con-
tinuing menace, the execution of which oom-
plainant had a right to arrest and to ta-
eorer as well any lost profits.
ON" WBIT of Certiorari to the United
States Circuit Court of Appeals for the
Seventh Circuit to review a decree which
affirmed a decree of the District Court for
tha District of Indiana, dismissing the bill
in a suit for the Infringement of a patent.
Beversed and remanded for further pro-
ceedings.
Bee same case below, 131 C. 0. A. SS2, 21S
Fed. 564.
The facta are sUted la the opinion.
Messrs. Fred L. Chappell and Otis A.
Eail for petitioner.
Mr. T, H. liockwood for respondenta. n
Mr- Justlea HcKenn» delivered the opta-*
ion of the court:
Suit for Infringement of a patent, brought
by petitioner, whom we shall call complain-
ant, against tha respondents, whom we shall
call defendants. In the circuit court for tha
district o( Indiana, October 3, 1610.
The device of the controversy Is a new and
useful improvement In hoistbg pulleys. It
Is alleged to have been invented by Hubert
A. Myers, one of tha defendants, who, after
his application for a patent, but before the
issue thereof, assigned all of his right and
title to one Allen P, Boyer, to whom a
patent was issued January 21, 160B. Boyer,
the 28th of September, 1910, sold and
assigned his right and title to the patent to
complainant, "together with all rights and
choses In action which had accrued to him,
well as those nhieh might accrue for in-
fringement thereof, and all rights to sua
for and recover damages or profits for the
It is alleged that after the issue of thcj
patent and before the commencement of theS
it defendants Infringed the'invention by*
eonstrncting and selling a large number of
the pulleys, the exact number not known, and
discovery is therefore ^ayed; and it is al-
leged that defendants have a large number
on hand which tliey aro offering tor sale.
It is further alleged that large profita
have been realized by defendants which
might have been obtained by complainant;
how much exactly, however, Is unknown,
and dlecorery la prnyed. An accounting is
also prayed and preliminary and final in-
junctions.
It Is alleged that Myers took part In
promoting and organizing the defendant cor-
poration, that he Is a large stockholder,
and Is actively engaged in directing and
aging the affairs of tha company, being
its general manager.
It is also alleged that the trade and pub-
lic Lava recognized the value and validity
of the patent.
The defendants answered separately.
Myers's answer Is not In the record. The da-
3For otbsr csset is* u
IC * KBT-NUMBER In ill Ker-N
mbetai) DUesU *
HHWogic
IM
ST SDPSBUE OOUBT EEFOB^BIL
Oct. Txbm,
fendant compuiT'i ia, uid deniu tluit tlie
eompany had in mj manner inirlnged tha
rigUa of the oomplsinaiit under the patent,
•r that any great lou at injury had ae-
erued or will accrue to complainant by rea-
■on of anything theretofore done by defend-
ant, or that complainant had been or ia
being deprived ol any gains or proflts to
which it is lawfully entitled, fay reaaon ol
kny act or any Tnanufacture, use, or sale of
hoiating devices by defendant.
And defendant alleges that ft has not
Bianulactured any hoisting device of any
kind ainee October, IfiOS, or aold or bad for
sala any hoisting device since March, IBIO,
and that complainant had knowledge of
ancb facts before bringing this suit; and
denies that it was receiving or enjoying
great gains or profits, or bad avowed ita
determination to continue manufacturing
and selling any such devices.
u It admits that Myers took part in organiz-
glng the defendant corpoTation, but denies
'that be is a stockholder or'in management
of ita affairs; alleges that he ceased to be
a stockholder on November 19, 1909, and
that he has not been a director or other
officer ^nce December ITtb of that year, or
connected with the company or Interested
ITis answer denies the other allegations
ef the bill, including the novelty of the de-
vice, speciUcally alleging that it was not the
result of invention, but merely of mechani-
cal skill in bringing together parte of hoist-
ing devices long previously well known and
described and publiahed in prior patents, a
list of which is given, and that hoisting de-
vices in all substantial and patentable re-
gpecta similBT to the alleged invention were
known and publicly sold and used in the
United States, the Inatances ol which are
Abandonment of the alleged Invention by
Uyers Is allied, that complainant is es-
topped by reason of actions had in the pat-
ant office from claiming a device other than
in the specific form shown and deaorlbed in
the patent, that Myers was not the first
Inventor or discoverer of a material and
substantial part of the device of the patent,
and that neither he nor the eomplainant has
evst made or filed a disclaimer thereof, to
the great Injury of defendants.
There waa a replication filed to the an-
Upon the issues thus formed by tlw plead-
ings proofs yrtre taken and a decree was
•ntered that the suit be dismissed for want
of equity. The deeree give* no iuformatlcai
upon which It waa based.
The complainant tocdc the ease to the elr-
enit court of appeals and that court affirmed
the decree. Stoting the question presented.
Hie court said; "He first and decisive
question raised In this appeal from a decree
dismissing a bill In equity after a full hear-
ing ia whether a court of equity or a court
of law U the proper forum In which to de-
termine complainant's righta." [131 C C.
A. ee2, E16 Fed. S94.]
It wUl be observed that defendant putSa
in issue the title of complainant, the noveltyg
of the device described iu the'patent, alleges*
anticipation, and precludes or narrows it by
the condition of the prior art. It denies in-
fringement and also irreparable loas or In-
jury to complainant by anything thereto-
fore done by defendant, or that complainant
was deprived or ia being deprived of any
great gains or profits to which it ia law-
fully entitled by reason of any act or any
manufacture, uae, or aale of hoisting de-
vices by defendant.
It appears from the facta found that
Myers was the inventor of complainant's
devies and tfaat he BUbsequcntly claimed to
have invented another different from and
superior to that of complainant, which he
aaaigned to Boyer, and that the defendant
company which Myers had helped to organ-
ize began to manufacture the device of the
;ed second invention of Myers and made
2fi in the spring of lOOS, and the following
fall prepared to make 600 more, SOO of
which were sold and the rest not completed.
In August, 1000, it {the defendant com-
pany) contracted to manufacture and sell
ne Diedrieh 600 additional carriera for
season of 1910. It was in testimony
that the SOO oarriers sold by defendant wers
sold through Diedrieh as Its agent.
In October, 1009, eomplainant published
a newspaper advertlsanent declaring defend-
ant company to be an Infringer of complain-
ant's device, and also sent a direct noties
to defendant to the aame effect. Ia eonae-
quence of this It Is testified that the defend-
ant company was unable to proceed and It
fulfilled Ita contract with Diedrieh by giv-
ing him permission to use its shop and ma-
terials to finiah the SOO uncompleted ear-
Tiers and to manufacture the 300 more called
for by his contract.
In December, 1B09, Myers sold bia stock
to the other etoekholders and thereafter
had no connection with the company, and
It Is testified that the company neither
manufactured nor sold carriers after tha
notice of Infringement, azcept as atated
above, and that Its president and generalt.
manager notified complainants In Febniary,fi
1011,* that the company waa practically*
dead. In March, 1010, It Is further testified,
it sold Its entire plant and all of Ita prop-
erty except only the letters patent Ho.
042,736, that is, the patent for tha aecond
inventicm of Myers, since which tima it baa
A^iOOglc
19IS.
been ont of hnslncs* find without (dctory or
Office. It is alBo testified tliat in the latter
part of lODO, after notice of infringement,
it had decided not to manufacture anj i
LOVATO V. NEW MEXICO. 107
(141 U. S. IM)
BENITO LOVATO, Plfl. In Err,
From this testimony the circuit court of
ftppeala deduced that clsarly as to Myers,
after December, 1900, and aa to the defend-
ant company, after March, 1610, at the lat-
eat, no infringement of complainant'! righta
had been committed or threatened.
We are unable to concur in the concIuBion
&■ to the company. It aold its plant in
March, 1010, but it retained the patent un-
der which prior alleged infringements had
been practised and justified, and the right
to proceed under it is neither given up nor
the intention to do so denied. Besides, in
September, 1910, the company sued Boyer
In tha state court for the injury to its
buaineea by the advertisement of infringe-
ment published a year before, and in that
suit the company made the following al-
legation: That it "is a corporation duly
organized under the laws of the state of
Indiana and is now and has been for more
than Ave years last past engaged in the
bnainese «t manufacturing hay can." We
cannot ascribe this to the inadvertence or
Improvidence of eoonael, for which the com-
pany woa not responsible, as an expression
of Its intention. It had Infringed (we as-
same this for the sake of argument only) i
it retained the patent under which it assert-
ed the right to infringe; there was injury
Inflicted, therefore, and the means retained
of further infringement; a denial of com-
plainant's right, and the assertion of a
Muntervalling right submitted for legul
judgment In the ease under review and be-
_aidsa in an independent action. We must
gregard this conduct aa a continuing menace,
■and we think* complainant had a right to
arrest its execution and recover as well the
profits of which it had been deprived, if any,
Hie case, therefore, does not fall within the
mlea of the cases cited by the circuit court
of appeals and those cited by defendants.
In other words, further infringement was in
affect threatened and could he reasonably
apprehended.
We Iwve assumed that there was infring-
ing done and threatened, and, of course,
both assumptions are based on the validity
mad novelty of the device and that the de-
fendant company's device — that is, the device
of patent No. 042,73B — is an unsuhstan-
tial variation of tt Whether the assump-
tion is justified is yet to be decided, and,
in the first instance, should bs decided by
the Circuit Court ol Appeals.
Ita decree dismissing tJie case ia reversed
and the ease is remanded for further pro-
ceedings in accordance with this opinion.
Baversed.
STATE OF NEW MEXICa
OoDBTs i8=3387(2)-Erboh to Stats Couht
—Case Tried in Tehbitorial Coubt—
ErFKCT OF Aduibsiom of Stats.
1. The denial of asserted rights based
on U. S. Const, 6th and tJtli Amendments,
presents questions within the appellaU
jurisdiction of the Federal Supreme Court
over the supreme court of the state of New
Mexico in a case tried in a territorial court
and appealed to the territorial aimreme
•ourt before New Mexico was admitted to
the Union.
tEd. NotiL— For other caaes. see Court*. Cent,
Dfi, I 108?: Dec. DlB. (8=387(21.]
CBimrfAL Law €=>1S2— Fohmer Jeopabdt
— "Twice Iw Jkopaedt."
2. The accused was not placed twice In
jeopardy, contrary to U. S. Const. 6th
Amend., because, after a demurrer to the
indictment which had be^ entertained after
a plea of not guilty had been entered and
not withdrawn was overruled, the jury,
which bad been impaneled and sworn, was
dismissed, and the accused was forthwith
arraigned aad required to plead, and this
having been done, and both sides a^in an-
nounning themselves ready for trial, th*
some jury previously impaneled was aworn
"nd the trial proceeded.
[Ed. Note.— For other cu». tat Criminal Law,
ent. Dig. (i 330-332; Dec. Dig. «=»1S2.
For other deflnlUoOB. lee Words and Phrases.
rlnt and SeconiJ Sterieg. Jeopard^.J
"ojTffnrtmoNAL Ia*w «=2G8-JtrBT i8=
"^**^hz^i^ PB0CS88 OF Law— Right to
Jury Tbial.
3. Neither due process of law nor th*
right to jury trial was denied, contrary to
" ". Const., Gth and 6th Amendments, bi^
e, after a demurrer to the indictment
which had been entertained after a plea of
not guilty had been entered and not with-
drawn was overruled, the jury, which had
been impaneled and sworn, was dismissed,
and the accused was forthwith arraigned
and required to plead, and this having been
done, and both sides again announcing them-
selves ready tor trial, the same jury previ-
ously impaneled was sworn ana the trial
proceeded.
[Ed. Note.— For otber CBsea, see
Law, Cent. Dig. ]f 7H. TKT ; Dec, Dig. a^^«o.
Jury. Cant. Dig. II J16, 219; Dec. Dig. e=g3l(U}.]
INo. 123.]
Submitted November 16, 1016. Decided Da-
comber 11, 1818.
IN ERROR to the Supreme Court of tho
State of New Mexico to review a judg-
it which affirmed a conviction of man-
■laughter in the District Court for the
County of Taos in the territory o( New
Mexico. Affirmed.
Bee same case below, 17 N. U. OSd, LJUA.
1W7A, la20, 134 Pac. 222.
The facts are stated in Hie opinion.
Mr. T. B. Ca(ron for plaintiff in error.
Mr. Frank W. Clancy, Attorney Gen-
eral ot Haw Mexico, for defendant in umr.
■I) — ■"•"' atbar cases see same tople A KBT-NIIIIBER li
U Esr-Nuinbered DIgesU * Indexes
i IDS
ST SUPREME COURT REPORTER.
Oct. Tnw,
■ Hr. Chief Jurtlee Whit* daHvered the
•jiinion of the coiui;
In tha diitrict court of tha twrltoTy of
Kew Mexico the accused, on May Qth, IS 10,
pleaded not guiltj to an Indictment for
minder. On Uaj 24, 1911, vithout vith-
drawing hia plea, he demurred to the Indict-
ment on the ground that it dtarged no of-
fense. The demurrer waa overruled, and,
both parties annouQcing themaetvea readj
for trial, a jury was impaneled and aworn
and the witnesses for I>oth sidea vers called
and nrom. The record then state*: 'Hliat
thereupon it appearing to E. 0. Ahbott,
Esq., district attorney, that defendant had
not l>een arraigned and had not plead since
the overruling ot defendant's demurrer, up-
on motion the court diunissed the jury and
directed that the defendsjit be arraigned
and plead." The accused wsa accordingly
again at once arraigned and pleaded not
guilty, and, both sides again announcing
themaelTea ready for trial, the aame jury
previously impaneled was sworn and the
trial proceeded. At the close of tha evidence
for the prosecutioD the defendant moved for
a directed verdict on the ground, among
othns, tJiat the record ahoved that he had
been formerly placed in jeopardy for the
aame offense, since it appeared that in the
aame case a jury had been in^ianeled and
sworn and thereafter had been dismissed
from a consideration of the case. The mo-
tion was denied and a conviction of man-
slaughter followed. The same ground was
relied upon in a motion in arrest of judg-
ment which wa« denied, and from the judg-
ment and sentence subsequently entered an
appeal was prosecuted to the supreme court
of the territory.
Pending the appeal New Mexico was ad-
mitted to the Union and the caae waa heard
by the supreme court of the state. In that
,. court, in addition to the contention aa to
g former jeopardy, tlie accused urged that he
■ bad beec'denied due proeess of law and had
been deprived of the right to a trial by jury
because from the record it i4>peared that al-
though a jury waa impaneled before he
waa arraigned and pleaded not guilty, that
jury was dismissed and It did not appear
that any jury was impaneled after his ar-
raignment and plea. The court held this
contention to be without merit and con-
cluded from a conaideration of the commoQ-
law doctrine of former jeopardy, in the
light of which it deemed the constitutional
provision on the subject waa to be con-
atmed, that the question concerning it was
raised too late, since It was Drat presented
to tha trial court after the conclusion of the
atate'a caae. To the judgment of afOrm-
ance giving effect t« Uieae aonelnslons this
writ of error waa proaecat«d. IT N. M.
666, L.R.A. 1017A, 1228, 134 Pac. 222.
As the ease was tried in a territorial
court, the denial of asserted rl^ts baaed
upon the 6th and flth Amendments presents
questions within our jurisdiction.
Without expressing any opinion aa to tha
correctness of the ruling of the court belov
concerning the failure to promptly raise the
question of former jeopardy, although ok
this record It may be conceded it presents a
Federal question, we pass from its considera-
tion, since we think the contention that tha
accused was twice put in jeopardy is wholly
without merit. Under the circumstancea
there waa, in the best possible view for tbs
accused, a mere Irregularity of procedure
which deprived him of no rlghL Indeed,
when It is borne In mind that the situation
upon which the court acted resulted from
entertaining a demurrer to the indictment
after a plea of not guilty had been entered
and not withdrawn, it is apparent that tha
confusion was brought about by an over-
cautious purpose on the part of the court
to protect the rights of the accused. Wheth-
er or not, under the ciTcumstonees, it was
a necessary formalltj to dismiss the jury
in order to enable tha accused to be again
arraigned and plead, the action taken wasn
clearly within the bounds of sound judicial^
discretion.* United States v. Peies, B Wheat."
ere, 6S0, « L. ed. leG, leS; Dreyei v. Ull-
nois, 187 U. 8. 71, BB, 86, 47 L. ed. 79,
ee, 23 Sup. CL Rep. 28, 16 Am. Crim. Rep.
2£3. See United SUtes v. Riley, S Blaboht.
204, Fed. Cas. No. 10,164, In which the
facts were In aubatooce idoitical with thoae
here presented-
Aa to the contention concerning tha denial
of due process and the right to jury trial,
it is not diaputed that in the first instonoa
a jury was legally impaneled. He argu-
ment is, however, that constituUonal rights
of the accused were violated because, after
the order of dismissal and the plea of
not guilty, there waa a failure to impanel
a jury, although the same jury previously
drawn was at once sworn and tried the esse.
But we think the absolute want of merit in
the propoaitian is manifest from its mere
statement, and U additionally demonstrated
by what we have previously said.
W. A. CISSNA, Plff. In Err,
STATE OF TENNESSEB,
COTTBTS 4£9S8(V-EBR0K TO StATE CODBT—
R£BUBl(ISaiOIf — E>ZNDK)TCT OF OBIOIKAIi
Suit Ihvolvinq Samc Qubbtion.
A case In the Federal Supreme Conrt
on writ of error to a state eonr^ which
M t^le * KBT-NSMBIE In aU Ker<HnmlMred QlCMU * IndaiW
UlL
CI8SNA r. ■nENmSSEK.
IM
•uiaot be dccidad on th« neriU wiUiont In-
volTlng » dedalon oi the qtiestion Infolred
In a boundary volt b«twe«n two stAtet,
pending on the orisinal oUendAT of tiie Su-
preme Court, ehonld not b« ecmeidered «r
paaied upon either ee to tlie joriadiction or
merit* iritliout at the eame time conHider-
ing and paeting upon the pending contro-
veraj concerning the boundary between the
two atatee, where >n affirmance of the money
judgment below will, in substance, be an
award for virtually the entire avails of the
lands in suit, as well aa of the greater part,
if not all, of the lands to be affected in
the boundary suit, and sudi com will there-
fore be restored to the docket and reae-
signed for bearing at the same time and
ImiDediately after the coming on for hear-
ing of the original boundary rail.
[M. NotiL— For otiier casea. im CoDrts, Oent
Ms. H nt-unt. lOM: Dec DIt «333M.]
INo. 88.]
IN ERBOR to the Supreme Court of the
State of Tennessee to review a judgment
which reverted a judgment of the Chanoery
Court of Shelby County, in that state, dls-
miuing a suit by the atate to recover cer-
tain lands, to restrain cutting timber there-
on, and for on accounting for timber al-
ready cut. Case restored to docket and as-
signed for hearing at the some time with
a pending original boundary suit involving
the tame question.
See tame ease below, 110 Tenn. 47, 104
S. W. 437.
The facta are stated in the opinion.
Mr. Csrutlien Ewlnc for plaintiff In
• *Ur. Chief JuaUee WIilt« delivered the
epinton of the court:
As owner in trust for the people of the
•tate of certain described lands, the state
of Tennessee in a state court commenced
this action in 1S03 against Cisena and
otbera to recover the lands, and to reatn^n
cutting timber thereon, and for an account-
ing for timber already cut. A temporary
injunction was granted against removing
and cutting timber, which was modified by
permitting, on the giving of a bond, the
removal of timber already cut, and was sub-
eequently ngain modified by allowing all the
timber on the land to be cut and removed ou
the giving of an additional bond. By pleas
in abatement and onewers the jurisdiction
o[ the court waa denied on the ground that
the lands were not in Tennessee, but La
Arkansas, and this wat sustained and the
rait dismissed for want of jurisdictiou. The
supreme court of the state, howerart !*•
versed this action and remanded the esM
for trial on the merits. US Tenn. 47, 104
8. W. 437.
The pleading! were amended in the triml
court, and while the case wat there undeter-
mined, the state of Arkansas filed In thiR.
court Its complaint against Tennessee toS
settle'Uie boundary line betwe«i the two.*
The bill made reference to the suit pending
in Tennessee and alleged that the lands em-
braced by that suit were in Arkansas, sub-
ject to its sovereignty, and denied the power
of the state of Tennessee in Its own courti
to interfere with the lawful authority of
the state of Arkansas. Thereafter the ex-
iatenee of the suit in this court was al-
leged in the state court, and that court was
asked to suspend proceedings until the ded-
slon in the boundary oaae. This was denied
and a judgment was entered In favor of the
state of Tennessee, holding that the lands
were in Tennessee and belonged to that states
and this judgment was subsequently af-
firmed by the supreme court of the state.
In that court also the pendency of the orig-
inal Buit between the two states In this
court was specially set up and an applica-
tion for tnspentlon of proceedings, based on
the fact, was prayed, but was refused. The
judgment of the supreme court of the state
not only decreed the lands to belong to Om
state of Tennessee In Its sovereign capacity,
on the ground that they w»e situated with-
in that state, but gave a recovery for the
amount of the timber eut before the bring-
ing of the suit, and also for the money value
of the balance of the timber on the lands
which had been eut and removed as the re-
sult of the modification ol the Injunction,
permitting that to be done.
At the threshold jurisdiction to review
the judgment thus rendered is denied on
the ground that no Federal question arises
for decision.
It is conceded in argument by both parties
that the decision of the merita of this ease
will ueceaaarily be the equivalent of a de-
cision of the boundary suit pending on «nt
original caleidar between the tvro atatee,
and that an affirmance of the money Judg-
ment below will in substance be an awa^
for virtually the entire avails of the lands
in suit in this cose, as well as of the greater^
part. If not all, of the landt to be afTeeted*
in the boundary suit * Moreover, In sub-*
stance it Is not disputed that the facts here
presented ore identical with those upon
which the solution of the boundary suit
must depend. Under these conditions we
think, without intimating an opinion on the
question of jurisdiction raised in this eaae,
or on tiie merits, that we ought not to eoo-
alder and pass upon this cose without at
le teplo « KIT-NUHBBR IB all K«r-14ambwed DlgMU * todaiM
L',aii..,-)-,.*^-.OOglC
lU
17 SUPBIMB OOUBI XZPOBTm.
Oct. Taut,
tli6 tftflie time consideriiw uid p&ninr up-
on Hie cwitroTersy eoBeeraiiig the bouudajy
between the two states, now pending on our
docket. Hie identity of the two issues, the
possible influence which the decision of the
one would have on the rights pending in
the other, and the fact that the actor, the
state of Tennessee, in this suit, ia the de-
fendant in the original mit, we think render
that conclusion necessary.
For these reasons we direct that this case
be restored to the docket and that it be
hereafter aadgned for hearing at the same
time and imniediately after the coming on
for kearlMg of the original boundary suit
betwea Uw two states. And to the end
that that twarlng may be expedited, we say
in adtUtlon, first, that If the tacU in the
boundary ease be stipulated by the parties
either by refwence ta the facts shown in
tills case or otherwige, both the cases will
be taken on subTnlssion on printed briefs, if
the parties are so advised; or second, if
th^ are not so advised, upon an agreement
and stipulation as to the tacts in the bound-
ary case, that ease and this will be ordered
advanced and assigned for oral argumoit at
an early day.
And it ia 10 ordere4.
>v Google
FOLLOWHSra ahe memorahda
oir
CASES DISPOSED OF AT OCTOBEB TESH, 1916,
HBnT F. MjiiunTjirT., Patltlonv, T. Bakdkl
W. Backus, Commlulwm «f Iromigr*-
Uon, etc [No. 003.]
Patition for & Writ of CeTtli>rarl to the
Oiited SUtee Circuit Court of AppMli for
Dm mntli Cir<niib
Mr. Henry Ach for petitioner.
No coimeel Appeared for reepondenk
NoremlMr 6, lOlS. Qranted.
TBOKAm Ewnio, Ccmmiatioiier of Piitenti,
Petitioner, t. UiimD Statsb BX txu
FowLEB Cab CouPAirr. [No. 721.]
Petition for a Writ of Certlontrl to the
Court of AppeiJe of the Distriot of Colnm-
bto.
Mr. Solicitor Oeneml D»Tla uid Mr. A«-
tffltant Attorney Oenenl Warrem for petl-
Messrs. HehUle Chnrch and Cbules C.
Unthicnm for reapondent.
November 0, 1910. Gisatad.
Ik A. WKSTEKicAint CoupAiTT, FetltloDer, t.
DiBPATOH PaiWTntO COKPAHT. ZSo. 742.]
Petition for a Writ of Certiorari to tlie
United Statei Circuit Court of Appeals tor
the Sixth Circvlt.
Ur. Curtis C. Williama for petititmer.
No counsel appeared for respondent.
NOTsmber 6, 191S. Giuted.
Xdoab W. LnOKKmAOH et al., Petitioners, T.
W. J. MoCasak Sdoax Bmnixe CoX'
FAifT et al. [No. 7U.]
Petition for a Writ of Certiorari to tbe
Aiited States Clrcnlt Court of Appeals for
the Second Circuit
Mesora. Peter S. Outer and Cbarles C.
Burlingham for petitioners.
Messrs. J. Parker Eirlin and Uark W.
Haclay, Jr., for respondent*.
~ r 4, ISia. Qrantad.
Yb Bur, Petitioner, t, T. W. BKUS&n^
Saperrlslng In^oetor of lumigratiaa,
ete. [No. 67a.]
Petition for a Writ of Certiorari to ttia
United Btates Circuit Court of Appeals for
tbe Fifth Circuit
Mr. Waters Darla for petitioner,
Mr. Solicitor General DaTls and Hr, A»
sistant Attorney General Wallaea Cm r»
Qwndent
November 8, 1918. Denied.
Bur fRAKKTUXT, Petitioner, t. XJimBt
States. [No. 6S3.]
Petition for a Writ of Certiorari to tiia
United States Circuit Court of Appeals tor
the FifOi Circuit.
Mr. James M. Edwardi for petitioner.
Mr. Solicitor General Davis and Mr. Aa-
■istant Attoniej General Warren for r^
ep on dent
Novembw 8, 1810. Denied.
Wnxuu B. Staati Coicpaitt et bL, Peti-
tioners, T. Ssuuui'i l^DBT t SAvnraa
Bank, m» Trustee, ete. [No. SM.]
Petition for a Writ of Certiorari to the
United SUtea Oircnlt Court of AppeeOa for
the Ninth Circuit
Mr. H. W. O^elveny for petitioners.
Hr. Jefferson P. Chandler for re^ondent.
Nonmber 0, IBIS. Denied.
ComcnotAi. Sboueitt OoicPAirT' rt bL, Feti-
tionen, t. Stevabt N, Dumnira, Trustee,
ete. [No. «11.]
PetlUon for a Writ of Ouilorari to ttie
United States (Mratdt Court of Appe«li tor
the Second' Circuit
Mr. Saitf A. Helser for petiUoneni
Mr. LuduB F. BoUason ft
Norembar 8. IBI8. De^
Ul
..Google
lU
37 SDPSIOfE CODET BEPOE'niB.
Oor. Tnu,
Katsam a. Eubbes et al^ PatitioDan,
Umni) States. [No. 6TT.]
Petition for a Writ of CerUonui to the
United SUte« Circuit Court of App«Kl« for
tlia Fifth Circuit.
Meaart. Theodore Msok and John Winlred
Pope for petitioners.
iix. Solioitor General Davis for reqiond'
•nt.
NovMnlMr 0, IQll. Denl«d.
WmnroBovss Eukhbio k HAirvwACTtm-
m CoicPAiTT, PetiUoner, t. Waohbb
Bunxnuo MAmrrAoruuKS Compakt. [No.
r«.]
Petition for a Writ of Certiorari to tbe
nutted States (Mrouit Court of Appeals for
Qie Eighth Cironit
Messrs Paul Bakoirell and Tbomas B.
Kerr tat petitioner.
IfessTS. Melville Church ud Edwin E.
nnffmsn for respondent
NoTcmber B, 191B. Denlsd.
Claxa p. Bobb, PlsJntifT In Emr, r. Air-
ran C. F. Metsb. [No. 4T3.]
In Error to th« Bupreme Court of the
Btate of Missouri.
Ur. Thomas J. Bowe for plaintiff in sr-
rer.
No oonniel appeared for defeodant Is er-
ror.
November 6, 1016. Dismissed with costs,
OB motion of counsel for plaintiff \a error.
Abthct J. McDoiTAis, as Bzeeutor, et al.,
Plaintiffs in Error, t. J. T. MoDoifAUi et
al. [No. BO.]
In Error to the Supreme Court of the
State of Arizona.
Mr. Rof D. Keehn for plaintiffs in error.
Ur. Seiim U. Franklin for defendants in
November 6, 191S. Dismlsaad with soats,
pursuant to the Tenth Bnl»
CzmsAL Tbust CoicpAin' or Hkw To^
as TruBt«es, etc.. Appellant, v. Uhitd)
States. [No. 7«8.]
Appeal from the Dietrlet Court ot the
United States for the Southern District of
CHiIo.
Mr. Arthur H. Van Brunt for appellant.
The Attorney General for appellee.
November S, ISIB. Dismissed with costs,
on motion of counsel for the impellent, and
mandate granted.
IkAifon J. ttmrnuum, TmstM, etc, «t aL,
Plaintiffs In Error, t. Faar-SiiooifD Na-
TTOItAL BaAK or PlTTSBUXOH. [No. S3.]
In Error to the District Court of the
United States for the Western District of
Pennsylvania.
Alvin A. Morris for plaintiffs in error.
No coiiDsel appeared for defendant in w
November 6, ISIS. Dismissed with coats
and mandate granted, on motion of onunul
f«i the plaintiffs in error.
P. P. DABinr «t aL, Plaintiffs in Error, t.
CiTX Laud Cohpaitt. [No. SS.}
In Error to the Suprems Court of ths
State of Oregon.
Messrs. Chules W. Pulton and Quj 0.
H. Corliss for plaintiffs in error.
Mr. Alfred E. Clark for defendant In w-
November 10, IK*. Dismissed with eoati^
pursuant to ths TtnUi Bule.
P. P. Dabtot et aL, PlalntilTa In Error, t.
JoHiT H. MioiMjCTOit et aL, as Executw^
etc. [No. 97.]
In Error to the Supreme Court of the
State of Oregon.
Messrs. Charles W. Fulton and Gi^ C. H.
Ctvliss for plaintiffs in error.
Mr. Alfred B. Clark for defendants la
Iiximna Subitt Coupakt, Appellant, t.
Fbahs Millbb et al. [No. 82.]
Appeal from the District Court of ths
United States for the Eastern District M
New York.
Messrs. L. Laflin Kellogg and Nelson L
Keach for appellant.
Messrs. PredericJc P. King and George W.
Bristol for appellees.
November 13, 1910. Per Curiam: IMs-
mlesed for want sf Jurisdiction, with S per
cent damages, upon the authoritj of Aspen
Min. k Smelting Co. v. Billings, 160 U. 8.
31, 87 L. ed. 986, 14 Sup. Ct. Rep. 4; Bnmk
V. Alton Water Co. 222 U. S. 32S, SB L. ed.
221, 32 Sup. Ct. Rep. 166; Metropolitaa
Water Co. v. Kaw Valley Drainage Dist
223 U. B. B19, H L. ed. 633, 32 Sup. Ct
Rep. 246; Union Trust Co. v. Westhus, 228
U. B. 619, 07 L. ed. 947, 33 Sup. Ct. Btp.
693i Shapiro v. United BUUs, 236 U. 8.
412, 69 L. ed. 291, S5 819. CL Rep. Ut.
A^iOOglC
Mil
lOaiORANDA OASEa
113
Tahiulu Raiukiad Ooxfast, FUintiff In
Error, v. Nathahik. Q. SmiTsn. [No.
U.]
In Error to the Snprtme Covit of tba
State of ludlmnA.
Mr. ChArlM W. UoorM for pkintlff In
H«Mn. Wfmond J. Beckett And Uartln
H. Hngg for defendant In error.
November 13, 1S16. Per Curiam: Dla-
Bissed for want of juriidlctiou, with S per
cent damagea, npon the aathoritf of Iowa
C. R. Co. T. Iowa, IW) U. S. 389, 40 L. ed.
««T, IS Bnp. Ct Rep. 3M; T«ik« ft N. 0.
R. Ca T. Hiller, 221 U. 8. 40S, 418, 65 L.
•d. TSg, 798, 31 Sup. Ct. Rep. 634; Waoh-
fngton V. Miller, 236 U. B. 422, 429, SB L.
«d. 296, 299, 36 Sup. Ct. Rep. 119; Wabaah
R. Co. V. Hayea. 234 U. B. 86, 68 L. ed.
1228, U Sup. Ct Rep. 729, « N. a C. A.
X. Q. Braix et al., PeUtl<mar% r. Hiob-
LAiiD Pake MAitnrAOTUxiKO CovPAin.
[No. 72B.]
Petition for a Writ of Certiorari to the
United Statee CIrcnit Court of Appeals for
the Fourth Circuit.
Ifeura. Joeepli A. UeCnllough and John
A. Ifarlou for petitioners
Heaara. Charlea W. Tillett and Thomaa C.
Onthrie for reapondeiit.
Movember 13, 1910. Denied.
EcLOiBK UoCenxt Wni^ Petitioner, t.
Samukl Haddoz et al. [No. 740.]
Petition for a Writ of Certiorari to the
Court of Appeala of the Dlatriot of Oolnm-
Ma.
Heeara R. R. Dickey, D. W. Baker, and
Ibrtin Conboy for petitioner.
UeMTB. A. 8, Worthington and H. Prea-
wtt Gatley for reapondenta.
Morember 13, 191L Dnded.
HoAii Chase, Appellant, t. Pr^ EAnSBT,
rNo. 102.]
Appeal from the Dlgtrict Ooort of the
United 8Ut«B for the DUtriet of Nebraaka.
Mr. Hiram Chaaa, ^pellant, pra ae.
Hr. Charlea J. Kappler for appellee.
November 14, 1918. Diimiaeed with eoeta,
pnriuant to the Sixteenth Rule, on motion
«f eounael for the appellee.
37 a C— 8.
Akkbhiait BoNoofa OoioAinr of BALmtonc,
FlaintiS in Error, t. Vwited States or
AuxBioA TO Tm Use of Cgsas F&Anoini
et aL [No. 689.]
In Error to the United States Circuit
Court of Appeal* for the Tliird Circuit.
Hr. Francis B. Bracken lor plaintiff In
Mr. WUliam iL Hargest for defendanU in
November 14, 1916. DiamiiMd per itipu'
Q. B. ITiOHCKS & COMFAITT et aL, PetitloB-
era, r. Uiirmi States. [No. 767.]
Petition for a Writ ol Certiorari to tba
United States Court of Customs Appeals.
Ur. Albert H. Waahbnm for petitioners.
Ho eounael speared for reapondent.
Norambar 20, IBIB. Granted.
Auz D. Bbav ft CoMFAirr et al.. Petition
en, T. UinntD States. [No. 7GS.]
Petition for a Writ of Certiorari to tba
United States Court of Customs Appeals.
Mr. W. P. Preble for petitioners.
No eounael appeared lor respondent
November 20, 1916. Qranted.
F. Tmj^ ft BoiTB, Petitioners, t. Uinns
States. [No, 760.]
Petition for a Writ of Certiorari to tba
United Statea Court of Customs Appeala
Ur. Albert M. QuuoIIno for petitioners
No counsel appeared for respondent.
November 20, ISIO. Granted.
F. ViTtLLI ft Soir, Petitioners, v. Uinr^
States. [No. 770.]
PetltioB for a Writ of Certiorari to th*
United States Court of Customs Appeals.
Mr. Albert M. GuEsolino for petitioners,
No counsel appeared for respondent.
November 20, 1016. Granted.
liAV Twa Ten, Petitioner, v. Q. Ouva
Feiok, United States Immigration In>
spector, ete. [No, 663.]
Petition for a Writ of Certiorari to Uia
Mr. E. J. Henning for petitioner.
No appearance for respondent.
November 20, 1B18. Denied.
dbyGoogle
114
17 StJPBEUB OOUKT RSPORTER.
oot. :
Cbavtamuva. Ikbtiitttior, Petitfoner, t.
Joan L. ZnucrajLur st bL [No. 731.1
Petition for a Writ <a OorUonri to tlM
United SUte* Circuit Coort of Appml* for
the Sixth CIronit.
Hr. Thtmitoi) M. Hltikee for poUtkour.
Mr. J. Warren Kdfer lor MBpondtnt^
November 20, 1910. Dauiad.
Jxuxa W. Gumxu, Petitioner, v.
it. GAitPBEU, et »t. pHo. 703.]
Petition for a Writ of Gertionri to the
Court of Appeals of the District of Colnm-
K*.
Mr. William Henrj White for pettUoner.
Mr. John Kldont for Teapondeota.
NoTeii^»er ZO, 1910. Denied.
Fetittoner, r. Tehba. H. Bdvp. ^o.
773.]
Petition for a Writ M Certiorari to the
United Btatea Circuit Court of Appeals for
file Second Circuit.
Messrs. Joseph P. Nolan and Jdu H.
Nolan for petitioner.
Ur. Frederle B. KjgM for mpaaSmA.
Horemlwr 0>, lUC Deslai.
UimB) SriiBB, AppaTlait^ t
aL [No. >M.]
.^tpaal from tiie VaUei Btmim CIniit
Court ot Appeals lor the Wf^th Olrsidt.
Hie Attorney Omwal for appelUot.
Hr. Bqira Boi^ for sippeDeea.
Nonmbar 20, ISIO. Dismissed, on mm-
Han of oomual for the appellant.
Wcxa F>iso Jt OmiFurT SxFms, Plaln-
tifT in Error, t. Baxm or Oki^asoiu,
[No. 91] ; AHXBiOAir Eztbsss Cokpakt,
Plaintiff in Brror, r. Sta^ or OKi.AH(nu
[No. S2]; and Uirms BiAJsa ExpiXBS
CoKPAST, Flaiutifl in Error, r. BtAim or
Omlaboka [No. S3].
In Error to the SugreBM Ooort of tta
State of Oklahoma,
Mr. B. T. Bledsoe for plaintiffs in error.
No oouusel appeared for defendant In w-
Norember 20, ISIS, Dtsmiased cm mnt^
of oouosd for Uw plaintUtk Id error.
>v Google
loia.
(Ul U. B. M)
CHRISTOPHER L. WILLUM8, U Heceiver
of First National Bank ol Minenl Point,
Wisconsin,
JOHN P. COBB.
Bakes aad Bahkihq ^=3246(3)— Nation-
al Banes— LiABiLiTT op Siockuuldbb
— ElTECI or TBANBFEB BT EXEaUTOBS.
1. A transfer of decedent's national
bonk stock by executors to themaelves sa
trustees, in the bona fide discharge of their
dutf under the wil] to invest a specified sum
in "interest-bearing securities, and pay
the income thereof to a designated person,
ii not void, but onlj voidable, and so long
as the transfer is permitted to stand with-
out direct attack the title must be deemed
to have passed, so as to relieve both the
estate and a le^tee, made liable bv statute,
after distribution, for debts of the estate,
from anj liabilitj for a subsequent asaesa-
ment Upon (he stock for the benefit of ered-
[Ed. Mots.— For other c&nei, iss Bsuki and
BanklnE. Cent Dig. ] 918: Dae. DIs. «=>M9(31.]
TnuffTB «=>lfl7— Ik Pkbsonal Pbopbsty—
Illzoal Tbaubfeb bi Tbustsx— Void ob
Voidable.
2. Trusts in personal property cannot
be deemed to be controlled by the provision
of Wis. Stat. 3 2091, that "nhen a trust
shall be expressed in the inatrument creat-
jnc the estate, every sale, conveyance, or
ouer act of the trustee in contravention of
tfae trust shall be absolutely void," in view
of the facts that this section is fotind in a
chapter devoted to "uses and trusts," under
the title, "Beal Proper^ and the Nature
and Quality of Estates Therein," and that
Uie highest state court has refused to make
applicable to personal property other sec-
tions of this same chapter, and that in the
statute dealing with "trust investments"
(Wis. Btat. Sup. j SlOOb] no such provision
lis found.
[No. 125.i
WILLIAMS T. CX)BB.
APPEAL from the United States Circuit
Court of Appeals tor the Second Cir-
enit to review a decree which afGrmed a de-
cree of the District Court for ths Southern
District of New York, dismissing the bill
In a suit to enforce on assessment on na-
tional bank stock. Affirmed.
See same case below, 134 0. a A. 217, 2ID
Fed. 663.
The facts are stated in the opinion.
Hessra. Jobn B. Sitiibom and dutun-
oer B- Blake for appellant.
_ llT. Knmee R. B»bbitt for appellee
s
P * Hr. Jnstice Clarke delivered the opinion
•f the conrt;
In 1004 Laura A. Cobb died testate at
of 92,000 of her e<tat« in "interest-bearing
aecuritiee,'' to pay the income thereof to
Catherine Monohan daring her life, and on
her death to distribute the trust fund to
certain persons designated in the will. Hie
defendant, John P. Cobb, and one Calvert
Spensley, were appointed executors of Mrs.
Cobb's will, and so administered her estate
that In July, 1908, they filed their final
account as executors, reciting that the es-
tate was wholly distributed, with the excep-
tion of twenty shares of Uie capital stock
of the First National Bank of Mineral
Point, which the account stated the execu-
tors had caused to be transferred to them-
selves and registered In their names u
trustees for Catherine Monohan,
The bank became insolvent, and the Comp-
troller of the Currency on the 3d day of
November, 1900, made an aBSesament of
9100 upon each share ot the capital stock
of the bank tor the payment of creditors.
The defendant was a son of the deceased,
and, as legatee and distributee, received a
snm of money greater than the amount of
the assessment on the twenty bank shares.
The foregoing facts are all derived fromS
the bill filed In'this case, to which the de->
fendant demurred. Hie district court sus-
tained the demurrer and entered an order
dismissing the bill. The circuit court o(
appeals affirmed this decree, and the case
is here upon appeal.
The theory upon which tlils suit was
commenced is that the transfer ot the twen-
ty shares of hank stock by Cobb and Spens-
ley, as executors, to themselves, as trustees
for Catherine Monohan, is void; that the
stock is as If it had never been transferred
at all, and Is therefore an undistributed
asset ot the estate of Mrs. Cobb, and that
the defendant, having received as legatee
and distributee muoh more than the amount
ot the assessment. Is liable under the Wis-
consin statute to the receiver for the assess-
ment, a debt of the estate, all the other
assets having been distributed before the
failure of the bank.
Obviously the question as to the liability
of ths defendant turns upon whether the
transfer of the stock to Cobb and Spcnsley,
as trustees for Catherine Monohan, is void
or voidable; for If it Is voidable only, tills
suit was im providently commenced. At
common law, and no Wisconsin statute Is
cited to modify the rule, an executor has
full power, without any special provision (rf
the will that he is administering or order
of court, to sell or dispose of the personal
assets of the estate, and thereby to pass
good title to them. Munteith v. Rahn, 14
ma. 210; Ex parte Oay, S Mass. 419;
■• topic t KET-NUMBSR In all Ker-Numbersd DIsmU ft IndeiM
lie
37 SUPREME COURT REPORTER
Leltdi T. Wells, 4B N. Y. BS6. Perry, Tr.
|] 2£G, SOS. A ui» bj an executor, even
to himself, is not void, but onlj voidable, at
the option of interaated persona. GTim'a
Appeal, 105 Pa. 3TG; Tat« v. Dalton, 41
N. C. (B Ired. L.) 562. And U, after such
pUTchsBe from hinuelf, an executor sella to
another, the purchaser from him acquire! a
good title. Cannon t. Jenkins, 16 N. C. (1
Dav. Eq.) i26.
No BUggeation ia made that the transfer
of the stock bj the executors to themselvea
^aa trustees was not made in good faith, and
^it was obviously made under the conviction
•'that it was, if not "an interest-bearing ea-
curity," at least the equivalent of such a
security. Very certainly this was the btiBiB
for the approval of the transaction by the
appropriate Wisconsin court more than a
year before the bank failed, and, for any-
thing that appears in the record, prior to
the time nhcc the bank became Insolvent.
The claim tbat the lower court failed to
give proper effect to | 2091 of the Wiacon-
ain statute cannot be allowed. The part of
this section which is claimed to be ap-
plicable reads :
"When a trust shall be expressed in the
inatrument creating the astate, every sale,
conveyance or other act of the trustee in
contravention of the trust shall be absolute-
This section is found in a chapter de-
voted to "Uses and Trusta," of the title,
"Real Property and the Nature and Quality
of Estates Hierein," and the claim ia made
that its drastic provision should be extend-
ed to trusts in personal property. No Wis-
consin eouTt has so applied it, but, on the
contrary, the supreme court of the state,
In Lamberton v. Pereles, 87 Wis. 449, 23
L.R.A. 824, es N. W. 776, refused to make
other sections of this same chapter respect-
ing real estat« applicable to personal prop-
erty, saying; "In this state we < have no
statute making the statute of uses and
trusts, or any part of it, applicable to per-
sonal property." It Is significant also that.
In ^ha statute dealing with "Trust Invest-
ments," no such provision Is found. Wis.
SUt. Supp. 3 2100b.
It results that, since the executors had
lawful authority to dispose of the bank
shares, assets as they were of the estate,
■0 long as the transfer is permitted to
stand unasHsiled directly the title to them
la In the defendant and Spenstey, as trus-
tees for Catherine Monohan, and that the
estate of Mrs. Cobb Is not liable to the re-
oceiver for the assessment claimed. If the
■ estate is not liable, the'defendant, as lci:atee
and distributee, ia not liable, and the claim
In auit, obviously without natural equity,
Is therefore without technical merit, and
JAUES T. WELSH.
OoHMESCE «=i27<5)— Ekplotsbs' Liabil-
rrr— When Servant la l<:MaAaED in Im-
TBBSTATE ColOtEBGK.
i. The true test aa to whether an in-
jured railway employee was engaged in in>
terstate commerce at the time he received
his Injuries, ao aa to make applicable tha
Employers' Liability Act of April 22, 190S
(SS Stat, at L. 65, chap. 14B, Comp. Stat.
1913, i 8667), ia the nature of the work
he was doing at the time of the injury, and
the mere expectation that he woula present-
ly be called upon to perform a task in
interstate commerce is not sufllcient Ut
bring the case within the act.
rSd. Nate.— For otbsr niea.
Dee. Dls. «=3lT(S).1
COUMERCK *=27(6)— EUPLOTEBS* LlABU,-
iTY— When Sebvant ib Khqaqbd in "In-
TBBBTATX COUUEBCE."
2, A yard conductor on an interstate
railway, injured while alighting from a
slowly moving freight engine for the pur-
nose of reporting to the ;pardmaster's of-
flee tor further orders, having executed all
previous orders, was not employed in in-
terstate commerce so as to render applica-
ble the Employers' Liability Act of April
22, 130S (35 SUt. at L. 65, chap. 140, Comp.
Stat J013, i 8657], although the orders
which be would have received had be not
t>een injured would have required him im-
mediately to make up an interstate train.
ISd. Note.— For otbar caiei. sea Commerce,
Dtti. DtS. ^stXtVi.
For Dtlier dsflnttloDi. ibb Words and PbrasH,
Flnt and Sscond Bsrla*. InUntats Commerca.!
OotTBTS «33399(2)— Ebbob to State Coubt
— -Foixowino Decision Bei»w — Qubb-
TioN FOB Jury.
3. A decision of a state court that tba
evidence did not require the submission to
tha jury of the question whether a yard
conductor on an interstate railway was, at
the time of his injury, employed in inter-
state commerce, should not be disturbed bjf
the Federal Supreme Court, where the tcati-
mony shows that such employee having,
under orders, taken from one yard to an-
other an inberstate freight car and a ca-
boose which, so far as appears, was not to
go outside the state, and having placed tha
'eight car on a siding, to be made up into
& train by another crew, and having taken
the caboose a short distance further and
placed it on another siding, next took the
engine to a water plug and took on water,
and then returned to the first yard, and waa
injured while attempting to alight from tha
locomotive for the purpone of reporting to
the vardmflster'a ofTjce lor further orders.
[EC. Note.— For other cnsei. xee Courts. Cent.
Via. I 1093: Dec, Dli;. i3=>^i93(2i; Appeal sod
Brror. Cent. Dig. it 3391. 33Si. 339G.1
[No. !9.]
i3=For
uaeeHm* topiv * KEy-.M;MlJL:R In all Kar-Numb«r*d Dliwt* A Isdsxas
,A_^OOglC
ESIB R. 00. T. WELSH.
U7
IN ERROR to the Supreme Court of the
Stat« of Ohio to roriev m judgment
which affirmed a judgment of the Circuit
Court of Haboning Couutj in tltat at&tc,
in favor ol plaintiff in an action brought
under the Federal Employers* Liability
Act. AfBrmed.
See same can below, 80 Ohio St. SI, lOS
N. E. 189.
The faota are itated in the opinion.
Metsn. Iieroj A. Mancbeater, C. D.
Eine, Jamea B. Kennedy, and John W.
Ford for plaintiff in error.
Mr. William R. Stewart for defendant
Ur. Judtice Pltncj dallvered the opinion
of the court;
^ The lupreme court of Ohio (BO Ohio St.
esi, 105 N. E. 189) affirmed a lAnait court
* judgment which HUatained a jndgment're-
covered in a court of common pleaa by
Welsh Bgainat the Erie Ballroad Company
for damage! on account of personal injnriea
Buffered by him while in it* employ aa a
yard conductor In the Brier Hill yard, near
YouDgstown, Ohio; orermllng the conten-
tion of the defendant (now plaintiff in er-
ror) that by certain mlings of tha trial
coart defendant had been deprived of rights
aeeured to it by the Federal Employera' Lia-
bility Act of April E2, 1908 (chap. 149, 33
Stat, at L. 86, Comp. Stat. 1013, | 80S7).
PlaintiCTs case waa that, on March 7,
1911, about II o'clock P. M„ while in the
performance of his duties, he attempted to
alight from the footboard of a slowly mov-
ing locomotive; that in so doing he stepped
upon a pulley wheel of an interlocking
meehaniem situsto between the tracka, and
then covered with snow, and the turning of
the wheel under his weight caused his foot
to become entangled in the Interlocking
wires, as a result of which he fell partly
under the locomotive and sustained serious
injuries. The negligence attributed to de-
fendant was the failure properly to guard
or cover the wires and the pulley wheel.
There was evidence tending to show such a
knowledge on plaintiff's part of tlie nature
and character of the interlocking apparatus
and its location between the trsjiks, and
such a L-nowledge and appreciation of the
dangers incident thereto, aa to bring into
play the defense of assumption of risk (Sea-
board Air line R. Co. t. Horton, 233 U. S.
492, 603, S8 L. ed. 1082, lOflO, L.ILA.101EC,
I, 34 Sup. Ct Rep. 636, Ann. Caa. lOIEB,
475, 8 N. C. C. A. 834 ; Jacobs v. Southern
V. Co. S41 D. B. E2B, 234, 30 L. ed. 070,
070, 38 Sup. Ct. Sep. 888), If the case cam«
withia the Federal act; and this depended
upon whether plaintiff was employed by
defendant in interstate commerce at the
time he received bis injuries. Defuidant's
fourth request was for the submiaBion to
the jury of the question whether plaintiff
was employed in such commerce, with an
appropriate inatruction embodying the rule
as to assumption of risk in oase tbey should
find him to have bean so employed. This
request, which in terms invoked the pro-
tection of the act of Congress, was reluaed.o
and the trial court, in the * instructions?
given, declined to follow that act or the
common law, and, on the contrary, in-
structed the jury that, under a state stat-
ute held to be applicable, the assumption
of risk was not a defense.
The rulings of the trial court were sus-
tained by the supreme court (and presuma-
bly by the circuit court) upon tha ground
that, upon the undisputed evidence, plain-
tiff was not at the time employed in inter-
state commerce. As to this question, there
was testimony tending to show that defend-
ant was a common carrier by rail engaged
in commerce between the states, and that
plaintiff was and for some time had been
a yard conductor engaged in night duty at
its Brier Hill yard, a mile or more west of
Youngstown; that he performed miscellane-
ous services in the way of shifting cars and
breaking up and making up trains, under
orders of the yardmaster, and had to apply
frequently to the latter for such orders;
that when any orders thus given had been
performed, or had "run out," he usually
reported at the yardmaster'a office for fur-
ther orders; that on the night in question
plaintiff, with a yard crew, took a freight
car loaded with merchandise destined to a
point without the state, and a caboose
which, so far aa appears, was not to go be-
yond the limits of the state, from the Brier
Hill yard eaetwardly to the "F. D. yard"
in Youngstown, where the freight car waa
placed upon a siding, ao that it might be
made up into a train by anotbeor crew; that
they then took the caboose a short distance
farther and placed it upon another siding;
that they next took the engine to a water
plug and took on water, and then returned
with it to the Brier Hill yard; that on
this return journey the engine was slowed
down near the yardmaster'a office, which ts
at the easterly end of that yard, lo as to
enable Welah to report for further orders,
all previous orders having been executed;
and that the injury waa received while he^
was attempting to alight for that pnrpoae.e
* It was in evidence, also, that the orders*
plaintiff would have received had he not
,A_iOOglC
lit
37 SUPREME COURT REPORTEE.
been Injured on hb w«7 to the Tardmaster'i
office would heve requ^ed him immediately
to make np an interstate train. Upon the
■trength ol this It ia argued that hii act
at tiie moment of hia injury partook o{ tlie
nature of the work that, but for the acci-
dental interruption, he would have been
called upon to perform. In our opinion,
this view is untenable, By the terms of the
Employere' Liability Act the true test is
the nature of the nork being done at the
Ume of the injury, and the mere expectation
that plaintiff would presently be called upon
to perform a task in interstate commerce is
not Bufflcient to bring the case within the
act Illinoia C. R. Co. t. Behrena, 233 U.
S. 473, 4T8, 68 L. ed. 1061, 1056, 34 Sup.
Ct Rep. 646, Ann. Caa. 1914C, 103, 10
K. C. C. A. 168.
There remains tlie contention that plain-
tiff's act In Bt«pping from the yard engine
was in completion of his trip to the "F. D.
yard" with the interstate car, and hence was
Itsell an act In furtherance of Interstate
commerce. This cannot be answered by
saying, in the words used arguendo by the
state supreme court (S8 Ohio St 88), that
"he was not tiien and there employed in
moving or handling cars engaged in inter-
stats commerce." The question remains
whether he waa performing an act so di-
rectly and immediately connected with his
previons act of placing the interstate car
in the "F. D. yard" as to be a part of it
or a necessary incident thereto. New York
C. 4 H. R. R. Co. », Carr, 238 U, S, 260,
£64, 5S L. ed. 1208, 1300, 36 Sup. Ct. Bep.
780, S N. C. C. A. I; Shanks t. Delaware,
L. t W. R. Co. S3Q U. a. 660, 669, SO L.
ed. 436, 438, L.Rjl,.10]eC, 797, 30 Sup. Ct.
Rep. IBS. And this depends upon whether
the series of acts that he had last performed
waa properly to l>e regarded as a succesHion
of sqiarate tasks or as a single and indivisi-
ble task. It turns upon no interpretation
of t^e act of Congress, but involTes simply
an appreciation of the testimony and ad-
mlasibte inferences therefrom in order to
determine whether there was a qnestion to
dbe anbmitted to the jury as to the fact of
• employment* in interstate commerce. The
state courts held there was no such ques-
Uon, and we cannot say that in so conclud-
ing they committed manifest error. It re-
sults that iu the proper exercise of the
Jurisdiction of this court in cases of this
character, the decision ought not to be dis-
turt>ed. Great Northern R. Co. v. Knapp,
240 U. S. 464, 466, 60 L. ed. 746, 751, 3S
8np. Ct Rep. 309.
Judgment affirmed.
(MI D. 8. M)
PENNSYLVANIA RAILROAD COMFANY,
Pld. in Err.
STINBMAN COAi MININQ COMPANY.
ConaTS «=>488(9) — Jubisdiotiow — Suit
AOAINBT INTEBSTATK CABBIElia— CAB DLS-
TEIBDTION— AdMINISTRAIIVE QuESTIOK.
1. A state court has jurisdiction irith-
out previous action by the Interstate Com-
merce Commission of a suit by a coal min-
ing company against an interstate carrier
to recover the damages arising in interstate
commerce out of the letter's failure to fui^
nisli such company with the number of coal
oars to which it claims to be entitled under
the carrier's own rule for car distribution,
since, the rule itself not being attacked,
there was no administrative question in-
[Ed. Nota.— Far otber cuu, see CoorU, Cut.
Dig. 1 ia££i Dm. DIs. «=)U3(R).)
Conara «=34S9(9) — JtrarBoicTiON— Suit
AOAINBT INTXBSTATK CABBIEBa — CAB DIS-
TBIBUnOM— ADUIMIffTKA'TtVa QUBSTIOHB.
2. The carrier's defense at the trial of
a suit brought by a shipper to recover the
damages arising in interstate commerce out
of the carrier's failure to furnish eudi
shipper with the cars to which it claimed
to be entitled under the carrier's own rule
for oar distribution, that the rule invoked
by the ahipper was discriminatory, and
therefore not an appropriate test of the
shipper's right or the carrier's dut^, did
not oust the state court of juriedictioo,
where the administrative question thus pre-
sented was not then an open one, such rule
Jiaving theretofore been found by the Inter-
state Commerce Commission, upon com-
plaint of other shigpers, to be unjustly di»-
sriminatory.
[&d. Nots.— For otbir cuse. ue Conrta, Ceat.
DJS. t 1326 ; Deo. Dl(. «=}4g8{S).]
OOUUEBCE ^=>8S — INTEBSTATS COUVEBCE
Ooimission " Judiciai. Respect por
FlKDINOS— DlBCBIltlNATIOK — CABBIKB'B
RUUt FOB OAS DlSTUBOTIOM.
3. No recovery may be had in a suit
brought in a state court by a shipper to
recover damnges arising in interstate com-
merce out of the carrier's failure to fnr-
nish a shipper with the ears to which it
claimed to be entitled under the carrier's
own rule for car distribution, where, b^
fore the trial, though after the period
covered by the suit, the Interstate Com-
merce Commission, upon complaint of other
ehippers and after a full hearing, had
foiuid that such rule was unjustly dis-
criminatory, and had directed the carrier
to give no further effect to it and, recog-
nizing that shippers who had been injured
through Its operation in the past were en-
titled to reparation, had proceeded to award
reparation to such ehippers as appeared and
adequately proved their injury and the
amount of damni^es sustained, the Commis-
sion's report making it plain thnt the find-
ing wfts not banpil upon any temporary
condition, but upon what inhered in the
ssFor other ci
■ SM same topic * KET-NUUBEH in all Ker-Numhered DliMts i Indexes
PEHHSTLTAHIA. R. CO. t. 8TINBUAK COAL lOH. 00.
119
ml«, mnd therefor* wm tme from th* tima
of itB adoption.
[Bd. Note.— For other eaM»», see ComniBrBB.
Cent. Dl». li 1», 1*1! Dee. Dig. «=8«,]
Argued Ua; 14, I91S. Restored to docket
for rearpimeiit June 14, 191G. Reargued
October 2S, 1&16. Decided December 18,
IBie.
IN ERROR to tbe Bnpreme Conrt of tbe
State of PemuylTania to review » Judg-
ment which afflmed a judgment of the
Court of CommoD Pleu of Clearfield Coun-
tj, in that etate, in favor of a ehipper In
an action agalnet an Interttate carrier to
recover damage* arising in interstate eom-
merce from the carrler'B failure to furnish
the shipper with the cars to which It
claimed to be entitled under the carrier's
awn rule for car distribution. Reversed.
See same ease below, 241 Fa. COB, SS Atl.
7«1.
The facts are stated In tbe oplnloo.
Messrs. Franole I. Oowen, John O.
Johneon, and F, D, MeEennef for plain-
tiff in error.
Messrs. A. H. Ltverlcbt and A. lu Cole
^for defendant Id error.
s
■ * Mr. Justice T«d Derautcr delivered the
opinion of the court:
In a state conrt in Pennsjlvania tbe coal
company recovered a Judgment against the
railroad company for damages resulting, as
was claimed, from unjust diacrimiuation
practised in the distribution of coal cars
ia times of car shortage; and the supreme
court of tbe state affirmed the judgment.
241 Pa. SOB, 88 AU. 701.
The suit related to both Intrastate and
interstate commerce, and whether. In respect
of the latter, it could be brought in a state
•onrt conslsttntly with the Intmtate Com-
merce Act is the first question presented.
The coal company waa engaged in coal
mining on the carrier's line in Pennsyt-
vanla, and was shipping the coal to points
.in that and other states. Other coal eom-
epanies were mgaged In illce operations in
■ the same district. A*rule of the carrier pro-
vided for a pro rata distribution of the
Available supply of coal cars in times of
ear shortage, but did not require or con-
template that individual ears, owned or eon-
trolled by the shipper, slionld be charged
■gainst his distributive share. Without
questioning the reasonableness of this rule,
but, on tiie otmtraiy, assuming that it
was onobjectlonable and became the tme
nsasnre of the shipper's right and the car-
rier's dnt7, the coal company claimed that
the CMTier had unjustly discriminated
against it to its damage by furnishing it a
smaller number of cara, and some of its com-
peUtors a greater number, Hun the rule
contemplated or permitted. In other words,
the claim waa not that tbe rule waa dla-
criminatory, but that it was violated or
unequally enforced by the carrier. Of such
a suit we said in Pennsylvania R. Co. t.
Puritan Coal Min. Co. 237 U. B. 121, 131,
132, 08 L. ed. 807, 873, 36 Sup. Ct. Rep.
484, where the provisions of the Interstate
Commerce Act were extensively considered:
"lliere Is no administrative question in-
volved, the courts being called on to decide
a mere question of fact a* to whether the
carrier has violated the rule to plaintiff's
damage. Such suits, though against an in-
terstate carrier for damages arising in inter-
state commerce, may be prosecuted either
in the state or Federal courts." Adhering
to this view, we think the suit was properly
brought in a state courL See Pennsylvania
R Co. V. Bonman Shaft Coal Co. 242 U. 8.
120, 61 L. ed. 188. 37 Sup. Ct Rep. 46.
But it is suggested that, in the course of
the trial, an administrative question — one
which the act intends the Interstate Corn-
court from proceeding to a decision upon the
merits. The suggestion is grounded upon
the fact that one of the carrier's defenses
at the trial wu to the effect that tbe rule
invoked by the coal company as Siing its
quota of the cars was unjustly discrimina-
tory, and therefore not an appropriate test,
of the shipper's r^ht or the carrier's duty.g
We think tli^ suggestion Is not well taken.*
The administrative question, which waa
whether the mle wss reasonable or other-
wise, waa not then an open one. It had
been theretofore determined in the mode
contemplated by the act. Upon the com-
plaint of other shippers, and after a full
hearing, the Commission had foimd tliat
the rule was unjustly diaeriminatory, and
had directed the carrier to give no further
effect to it. See Hillsdale Coal ft Coke Co.
V. Pennsylvania R Co. 19 Inters. Com. Rep.
358; Jacohy v. Pennsylvania R. Co. IB Inters.
Com. Rep. 3S2, 23 Intara Com. Rep. 1S6.
This was shown by the reports and orders of
the Commission, which were produced In
evidence. Thus there was no jurisdictional
obstacle at this point.
The Commission deemed It essential to a
fair distribution in times of car shortage
that Individual cars, owned or controlled by
the shipper, should be charged e^nst bis
diatributive share, and because the rule here
took no account of such ears the CommlBaion
found that It was unjustly dl scrim! natory.
This occurred two years before the trial, but
aftar the period covered by the suit. As
4S3FDr Dtbsr csms ■■• same topic A KET-
In all K>r-Numb«r*d DIaeeto * laisna
120
87 SUPREME COURT REPORTEH.
Oct. Tebm^
part of Its defenw the carrier claimed that
the cars distributed to the coal company
during that period included numj individ-
nsl cars controlled bj the latter, kud that
these nere not charged against its dUtribu-
tive shore. Eyidently intending to recog-
nize that this was so, and desiring to shorten
the trial, tha partiea agreed that a verdict
should be taliea tor the cqi.1 company in a
designated sum, subject to the condition,
among others, that "if, under the practice,
the law, and the rules," the court should
conclude that "the plaintiff company should
have been charged with Individual cars,"
then judgment should be entered for the car-
rier non obitante veredicto. The verdict
was taken and judgment entered thereon,
the court concluding that the rule should
be respected notwithstanding the Commis-
sion's finding. Complaint ia made of this
decision, and we think it was wrong. That
this shipper was not a party to the proceed-
e ing before the Commiaeion hardl j needs no-
• tice, no point being made of it in thVbriefs.
And it is not a valid objection that the find-
ing came after the period to which the suit
relates. The act contemplated that the pro-
ceeding should be conducted in the interest
of all the shippers who bad been, or i
likely to ht, affected bj the rule, and
merely in the interest of those who filed the
complaint. The purpose was to determine
the character of the rule for the equal
benefit of all, to the end not only that d:
crimination thereunder in the future might
be prevented, but also that such discrimi
tlon in the past might be redressed. Bo
deretanding the act, the Commission, upon
finding the rule unjustly discriminatory,
dered the carrier to cease giving effect to it,
and also recognized that shippers who had
been injured through Its operation In the
past were entitled to reparation. And the
Commiaeion proceeded to award reparation
to snch shippers as appeared and ade-
quately proved their injurj' and the amount
of damages sustained. Not only so, but the
Commission's report makes it plain that the
finding was not based apon any temporary
or changeatjle condition existing at the time,
but upon what inhered in the rule, and
therefore was true from the time of its
adoption. The legal propriety of the Ci
mission's finding is not questioned, but
only that it operates to discredit the car-
rier's rule as respects earlier transactions.
In the circumstances stated we are of
opinion that effect must be given to the
Commission's finding, even though It came
after the transactions in question, and that
K recovery by the coal company cannot be
permitted without departing from the uni-
formity and equality of treatment which the
aot is intended to secure. Only throuKh
enforcement of the discriminatory rule, and
of the particular feature which made It dis-
inatory, can a recovery be had. A right
icover independently of that is neither
shown nor claimed. In short, the coal com-
pany concedes that it received all the cara
to which it would have been entitled under
a reasonable rule, and yet seeks to recover
upon the ground that more cars were not
delivered to it under a rule which naa nn-
reaaonable, tiecause unduly discrimtnatory-
in its favor. Consistently with the act Uu»
cannot be done.
Judgment reversed.
(Ut tt. 8. 13B>
M>UISVILLE ft NASHVILLE RAILROAD
COMPANY. Pia. in Err..
OHIO VALLEY TIE COMPANY.
CouBTB «=>394(15)~Ebsob to Statk Coubt
—Federal Questiok— Rights Asserted
Undeb Imteb91'atb Comuercb Act.
1, A case in wbicb the defeated party
insisted at the trial court and on appeal
in the highest itate court upon its asserted
rights under the Interstate Commerce Act
of February i, 1887 {24 Stat, at L. 382,
chap. 104. I 8, Comp. Stat WIS. j 8572), and
in which those rights were passed uoon ad-
versely by the latter court, is witiiin the
appellate jurisdiction of the Federal So*
preme Court.
[Ed. Notp.— For other cteeB. sea Courla, Cent.
Dfs. t li'i^*; Dec- Dig. ®=>3B4(16).]
OoUMEBCE 4P=j8S — iNTERSTATe COMMEBCB
CoHHissioN— Befabation Obdbb— What
Daha<3es Included ~- Sitbsgquent Rx-
covbbt in Statb Coubt.
2. All the damages that properly' can
be attributed to a carrier's overcharge,
whether it lie the keeping of the shipper out
of its money, or the damage to its busi-
ness following as a rpmoter result of the
same cause, must be deemed to have been
included in an award by the Interstate
Commerce Commission of a sum of money
to a shipper as reparation for unreasonable
rates, pursuant to the provisions of the
Act of February 4, 1887 (24 Stat, at L.
382. cb:ip. 3(H. Coup. Stat. 1913, Jj 8572,
8573, 85S1) E! 8, 0, 13. which contemiiiate
the recover; of all damages sustained through
violations of the act, either before the Com-
mission or in the courts, requiring, however,
an election between the twQ methods of
procedure; and a satisfaction of the Com-
mission's award precludes any recovery in
a subsequent action In a state court for
any damages arising out of such overcharge.
[Kd. Note.— For Dtber cases. Bee Commerce.
Cent. CIS- II US. lUl Dto. Dli. «3SS.l
[No. 6fl.]
la topic * KBT-NUUBBR In all Kajr-Nnmbared Olnets * iDdaxsa
A^^OOglC
1016.
LOUISVIU^ A N. R. CO. t. OHIO VALLEY TIB Ca
Ul
IN ERHOR to the Court of AppMla of
the State of Kentucky to nriew ft judg-
ment which affirmed a judgment of the
Circuit Court of JeSereon County, in thftt
•tate, in favor of plaintifT in a init fay a
shipper against an interstate carrier to
recover damages for wilful and malicious
injury to the former's business. Beveraed.
See same case below, 161 Ey. 21S, 170
a W. 633.
The facts are stat«d in the opinion.
Messrs. Helm Bruce and Henry L. Stone
for plaintiff in error.
Messrs. Eldward W. Hinee, John
Bryce Baskla, and J> V> Normaji for 6a-
(eodant in error.
T 'Mr. Juatloe Hoimcs delivered the opinio
of the court:
This i* a suit brought fay the defendant
in error in ISll against the railroad com-
pany to recover for injury to business and
other damages alleged to have been caused
by the railroad's acts. The most important
feature at this stags is that the railroad
maintained and colleoted a higher rate for
crosstiea than it did for lumber when they
were carried between statea, although Uie
State Commission required tlie same rate
npon both for carriage within the state,
and although, as the railroad knew, the
Interstate Commerce Commission repeatedly
bad decided that the rates for crossties and
lumber should be the same. It is alleged
that these and the other acts complained of
were done for the purpose of getting rid
of the plaintiff as a competitive buyer, and,
in that sense, maliciously. The plaintiff
tried to meet the higher rata by directing
4elivery within the state of ties intended
to go beyond, which attempt the defendant
encountered by refusal to carry them except
on its interstate tariff, and hampered the
plaintiff by declining to let ita cars leave
Its road, by deliveries at points requiring a
liaul by wagon, and so forth; and, in short.
It may be assumed that the railroad did
Other acta to further th« alleged end, not
necessary to be stated here.
Shortly before bringing this suit the
plaintiff complained to the Interstate Com-
tnercG Commission in respect of charges col-
lected upon ninety-one carloads of tiea, and
ia 1S12 obtained an order that the railroad
pay to ft S6,1SS as reparation for unrea-
sonable rates, and establish a rate for ties
not to exceed its contemporaneoua one foe
lumber of the same kind of wood. This
order was pleaded by an amendment to the
petition, and It appeared at the trial that
the sum awarded had l>een paid. As the
damage alleged was attributed mainly to
fthe publiration and exaction of excessive
dtargea, the defeudaut insisted atHbe trial
and before tlte court of appeals upon Its
rights under the Act to Begulate Conunero^
and those rights were passed upon by the
court, so that there is no doubt of the juris-
diction here, although some questions were
raised that we thinlc it unnecessary to dia-
Tbe defoidant contended and asked for a
ruling that in this action no damages could
bs allowed "on account of defendant's hav'
ing charged to and collected from plaintiff
unreasonable rates of freight for the car-
riage of interstate shipments of crossties"
and other rulings to similar efTecL It also
asked an Instruction that, under the Act to
Begulate Commerce, it waa required to col-
lect the rates fixed by Its tariff on file and
in effect. These requests were refused, and
the jury were told that if they believed that
the rates found by the Interstate Commerce
Commission to be unreasonable were wilfully
and maliciously maintained with intent to
injure the plaintiff's business, and that the
defendant knew them to be unreasonable,
and that by its acts it tied up a part of the
plaintiff's capital, and so damaged the
plaintiff's business, then upon this, as well
as on several other possible findings stated,
they would find tor the plaintiff. The jury
found a verdict for the plaintifl' for certain
Itemized expenses and for $60,000 damage
to plaintiff's business and credit, as men-
tioned in the above instruction. Judgment
on the verdict waa affirmed by the court of
appeals. 181 Ky. SI2, 170 S. W. 633.
The court of appeals decided that the Act
to Begulate Commerce committed to the
Interstata Commerce Commission only the
granting of special relief against the making
of on overcharge, and that the satisfaction
of the Commission's award still left open an
action in the state courts to recover wbat
are termed general damages, — such ss are
supposed to have been recovered in this
case. In this we are of opinion that ths
court was wrong.
By g S a common carrier violating the
commands of the act is made liable to the*
person injured thereby "for the*full amount*
of damages sustained In consequence" of the
violaUon. [24 Stat, at L. 382, chap. 104,
Comp. Stat. 1013, 9 8672.] By g 9 any
person so injured may make complaint to
the Commission or msy sue in a court of the
United States to recover the damages for
which the carrier is liable under the act,
but must elect in each case which of the
two methods of procedure he will adopt.
The rule of damages in one hardly can be
different from that proper for the other. An
award directing the carrier to pay to the
complainant the sum to which he is en-
titled is provided for by g 16, By the same
section, if ths carrier does not comply in
,A_.OOglC
122
87 BUPBEUE COUHI BEFORTEB.
Oct. Tbii,
due time with the order, the oompl^oant
may eae in a atate coart, — which implies
that if the order hae been complied with ttnd
liie monej paid no suit can be maintained.
It ie to be noticed further that reparation
before answer ie contemplated as pouible
by 9 13, and In that case the carrier ahall
be relieved of liabUity to the eomplainant,
though only, of course, for the partlcnlar
Tiolation of law. The deciaione Bay that
whatever the damages were, they could bo
recovered (Pennsylvania R. Co. T. Inter-
national Coal Min. Co. 230 U. 8. 184, 202,
203, 67 L. ed. 1140, 1463, 1454, 33 Sup. Ct.
Rep. 893, Ann. Caa. 1B16A, 316; Meeker v.
Lehigh Valley R. Co. 236 U. 8. 412, 420, CO
L. ed. 844, 667, P.UJ1.1816D, 1072, 36 Sup.
Ct. Rep. 828, Ann. Caa. 1916B, 6fll); and
that the statute determines the extent of
damages (Pennsylvania R. Co. v. Clark
Bros. Coal Min. Co. 23S U. S. 466, 472, SS
L. ed. 1406, 1413, SG Sup. Ct. Rep. 896).
We are of opinion that all damage that
properly can be attributed to an overcharge,
whether it be the keeping of the plaintiff
out of its money, dwelt upon by the trial
court, or the damage to its business follow-
ing as a remoter result of the same cause,
must be taken to have been considered In
the award of the Commission and compen-
sated when that award was paid.
If, at a new trial, the plaintiff can prove
that the defendant unjustifiably refused
cars or caused it other damage not attribu-
table to the overcharge of freight, our deci-
sion does not prevent a recovery; but It Is
evident that the present judgment embraces
elements that cannot be allowed.
Judgment reversed.
(Ml D. S. m)
ILLINOIS CENTRAL RAILROAD COM-
PANY, Plff. In Err.,
ROBERT H. PEERY.
Commerce e=327(e)— Buflotxbs' Lubii,-
iTi — Whbn sbbvamt EnaAOED m
"InXEBSTATE COMMXBCB."
A freight conductor employed on a
round-trip run between two points in the
same stste cannot be said atill to be engaged
in interstate commerce, within the meaning
of the Employers' Liability Act of April 22,
1008 (35 Stat at L. 66, chap. 14S, Comp.
SUt. IB13, g S657), while making his re-
turn trip with a train devoted solely to do-
meetie commerce, because his train on the
trip out carried interstate freight.
[Ed. Note.— Tor other CBiai, sea Commerce,
Dec Dig. «=)ZT(e).
For othsr deBnlUons, sm Words and Pbrsse*,
FInt and 3ecoDd Ssrlas^ IntinUte Commarca.]
[No. 77.]
IN ERROR to the Supreme Court of tha
State of Minnesota to review a judgment
which, on a second appeal, affirmed a judg-
ment of the District Court of Ramsey Coun-
ty, in that etate, in favor of plaintiff in an
action based upon the Federal Employers'
Liability Act Reversed.
See same case below, on first appeal, 123
Minn. 264, 143 N. W. 724; on second appeal,
128 Minn. 119, 160 N. W. 382.
The facts are stated in the opinion.
Messrs. Blewett Ijee and W. S. Horton
for plaintiff in error.
Mr. Samuel A, Anderson for defendant
Mr. Justice Holme* delivered tilt opinion
of the court;
This is an action brought under the Fed-
eral Employer!' Ijability Act to recover for
personal injuries caused by a rear end eol-
liaion in Kentucky. The railroad company
denied that the case was governed by the
Federal act, contending that the train uponn
which the plaintiff was moving was engaged^
in local business only, between two'pointi*
within the state. Tha issue was important
as affecting the rules of law to be applied.
At a second trial the judge, intending to
follow the previous decision of the supreme
court of the state (123 Minn. 204, 143 N.
W. 724), ruled that the accident happened
in interstate commerce, and that the act of
Congress governed the case. The defendant
excepted and assigned as error that the
court determined the matter of fact instead
of leaving it to the jury, in accordance
with the intimation of the former decision
(123 Minn. 266), but the judgment was af-
firmed by the supreme court of the state
(128 HiuD. 119, 160 N. W. 382).
We are of opinion that the ruling was
wrong, as, we think, will be seen from a
short statement of the facts. The plaintiff
was a freight conductor on the defendant's
road, having his principal run from Padu-
cah, south, to Fulton, both in Kentucky,
and the same day bsck from Fulton, north,
to Paducah. According to bis testimony
be took back the engine, caboose, and crew
with which he started, and was allowed 100
miles of mileage in compensation for the
trip out and back. The train out generally
and m this occasion bad freight destined
to beyond the limits of the state. That on
the return depended on what could be picked
up, the engine and calioose sometimes com-
ing back alone. The accident happened
when the engine was returning to Paducah,
after having taken up a switch engine from
the Fniton yards seemingly in need of re-
pairs at the Paducah shops, and a pils
driver and outfit on three flat care, and
having in the rear, behind the last, the
H sea isms topic * KHT-NUUBDR In all Kar-Nnmbarad Dlcwta ft Induea
D,at,z.,i-.,'^-.00'^IC
1016.
BALTIMORE 4 0. R. CO. T. WILSON.
123
plaintiff's cabooM. The pile driver was
dropped on the w^, at UA^fleld, and the
train thereafter coDBiatad of tbe two engines
and the caboose. The plaintiff was sitting
in the caboose, making up a report of his
trip out and back, when the collision oc-
Of course tbe plaintiff treats the round
trip as one, and the return as merely the
necMsary complement of the trip ouL The
^eoDcluaion is drawn that tbe plaintiff still
Mwas engaged in interstate commerce because
the train out had cars destined to TeuneS'
see. But, on the other band, the trips out
and back were distinct, in opposite direc-
tions, with different trains. The plaintiff's
Jouine}' was confined wholly to Kentucky.
Only the circumstance that the south-
bound train from PadDCsh carried freight
destined to beyond Fulton caused him to be
engaged Id interstate commerce while on
Uiat trip. On the return, when he was in-
jured, all the freight had domestic destina-
tion*. It is true that the greater certainty
of getting traffle going south probably was
(he chief reason for tbe establishment of the
circuit; but they got what they could com-
ing back; generally a train or a part of a
train. It seems to ui extraTsgant to sub-
ordinate the northerly to the southerly Jour-
ney BO completely that if, on the latter,
there happened to be a parcel destined be-
yond tbe state, tlie conductor should be re-
garded as still engaged in commerce among
the states when going from Fulton to
Paducah, even though he had a full train
devoted solely to domestic commerce. For
it must be remembered that if the northerly
movement is regarded as the incident of the
southerly, that subordination is Independent
of the character of the commerce, and de-
pends solely on the fact that southerly mov-
ing business, no matter what, induced es-
tablishing the route. Therefore it does not
matter that the interstate traffic moving
south was greater than, tor purposes of
Illustration, we hsve supposed.
Judgment reversed.
C« tr. S. !8S)
BALTIMORE ft OTITO RAILROAD COM-
PANY, Plff. in Err.,
JAMES B. WII£0».
Master and SEBVAjrr «=>204(2), 228(2) —
Hours of Sebvicb— Emplotebs' Uabil-
rrT— CONTRIBUIOHY NaOLKJENCK — As-
BUiU-riON OF Bisk. , „ ,
A violation of the Hours of Service
Art of March i, 1307 (3* SUt. at L. 14J5,
chap. 2039, Comp. Stat. 1913, 5 8677), by
keeping a railway employee on duty for
more than sixteen consecutive hours, ex-
cludes, by virtue of the provisions of the
Emjployers' Liability Act of April 22, 1908
(35 Stat at L 66, chap. 149, Comp. Stat,
1913, a 8659, 8860) }{ 3, 4, tbe defenses ot
contributory negligence and aasilcilition of
risk in an action by such employee under tbe
latter act to recover for injuries received
after a rest ot fourteen hours, if the breach
of the Houri of Service Act was a cause con-
tributing to the injury, since no reason can
be given for limiting liability to injuries
happening while the violation of law is
going on, and the ten-hour rest period fixed
by the Hours of Service Act is a minimum
for rest after work no longer than allowed,
and has nothing to do with tlio question of
tjia varying rest necessary after work has
extended beyond tbe lawful time.
[Ed. Note.— For other cases, see Usetar end
Scrvanl, CcaC Dig. (1 645, 671; Dec. Dig. ®=3
IMli), 22812).]
[No. 375.]
JN ERROR to the Appellate Court for tbe
First District ot the State of Illinois
to review a judgment which affirmed a judg-
ment of the Circuit Court of Cook County,
In that state, in favor of plaintiff in an ac-
tion brought under the Federal Hours of
Service and Employers' Liability Acts. Af-
firmed.
See same case below, 194 111. App. 491.
The tacts are stated in the opinion.
Messrs. James B. Blieean, William J.
Calhoun, Will H. Lyford, and George B.
Hamilton for plaintiff In error.
Mr. Morse Ives for defendant in error .^
«
* Mr. Justice Holmca delivered the opinion*
of the court:
This is an action for personal injuries,
brought under the Hours of Service Act,
March 4, 1007, chap. 2039, g 2, 34 Stat, at
L 1415, 1410, Comp. Stat 1813, gj 8077,
8678, and the Employers' Liability Act,
April 22, 1008, chap. 149, 35 Stat, at L 05,
Comp. SUt 1»13, S 8G57. There is a count
alleging an improper construction of tracks,
and there are others, which alone are of
importance here, alleging that the plaintiff
was kept on duty for more than sixteen
hours, and subsequently (we may take it.
in fact to have been fourteen hours ]Hter)s
put on duty again and injured 'because he*
was so exhausted as to be unable to protect
himself in the work that he was attempting
to perform. At the trial the judge instruct-
ed the jury that if they found that the de-
fendant had been guilty ot the breach of
duty allef^d, and that the breach proximate-
ly contributed to the plaintiff's injury, then
they should not consider negligence, if any,
on the part of tbe plaintiff, in determining
the amount of tbe plaintiff's damages, it
any. In nibrr words, under S 3 of the Em-
■ SM same topic A KBY-NUHBBR la all Ker-N<uDber%d DlgMts * IndeiM
,A_.OOglC
124
37 SUPREME COURT REPORTER.
plojen' U Ability Act, be Allowed « viola'
tion o( a statute enacted for the ufety of
employees to be found to exclude contribu-
tory Qegligence, ttltbougb at the time ot the
accident the violatiou wa8 foorteen hoars
old.
It ia not ImportaDt to give the particulars
of 'Uic accident. Tlie plaintiff was a freight
conductor, and was intending to cut a car
with a hot box out of a train. He itood on
the running board at the rear of an engl
on a side tnkck until it drifted abreast ot
the car standii^ on the main track, when
be stepped off and was very badly hurt.
The first step in the railroad's real de-
fense was flat the plaintiff was not liept on
duty more than sixteen houri, — a proposi-
tion that there was substantial evidence to
maintain. But that having been overthrown
by the verdict, it contends that the injury
must happen during the violation of law,
or at least that the Hours of Service Law
Bxea the limit of possible connection be-
tween the overworlc and the injury at ten
hours by the provision that an employee,
after being continuously on duty for six-
teen houre, shall have at least ten consecu-
tive hours off. It also objects that the
plaintiff, if feeling incompetent to work,
should have notified the defendant. But nc
reason can be given for limiting liability
to injuries happening while the violation
of law is going on, and as to the ten hours,
the statute fixes only a minimum, and a
minimum for rest after work no longer than
^allowed. It has nothing to do with the
• question of the varying rest needed after
work extended beyond the lawful time. In
this case there was evidence that whether
technically on duty m not, the plaintiff had
been greatly overtaxed before the final strain
of more than sixteen hours, and that, as a
physical fact, It was far from impossible
that the fatigue should have been a cause
proximately contributing to all that hap-
pened. If so, then by the Employere' Lia-
bility Act, %i 3 and 4, qucstjons of negli-
gence and assumption of risk disappear.
Judgment aiHrmed.
an V. S. 183)
CHICAGO. TERRE HAUTE, k SOUTH-
EASTERN RAILWAY COMPANY, Plff.
In £rr^
CHAMPION S. ANDERSON.
AOHiotJi.TDBK *=8— CoKsrrruTiosAL Law
^s24I, 297— Bqual PBOTicnoiT or tiik
Laws— Dt^ PaooBsa or Law— RBQuia-
iita Rail WAT Ooupant to Bbuovi
Noxious Weeds— Pxitax,tt.
The requirement ot Indiana Act ot
Harch 6, 1889,i that railway companies cut
down and destrt^ noxious weeds "on lends
occupied by them," under penalty of fSS,
recoverable by "any person feeling himself
aggrieved" by the company's neglect or re-
fusal, will not be held to odend against the
equal protection of the laws or the due
process of law clauees of U. S. Const, lith
Amend., where the statute baa as yet been
given no broader conetruction by the state
courts than one which permits a single re-
covery by a contiguous landowner because
of a railway company's failure to cut and
destroy weeds on its right of way.
[Ed. Note.— For other cases, ire Aerlculture,
De^Dig. iE=i8; Conetllullonal Law, Cent. Ulj.
" ™ "" "" ■^l; Dec. Dig. «=33«. MT.J ^
[No. 34.J
I TOO. 701, S32-&
IN ERROR to the Supreme Court of the
State of Indiana to review a judgment
which affirmed a judgment of the Circuit
Court of Sullivan County, in that state, In
favor of plaintiff in an action to recover
a penalty from a railway company for its
failure to cut down and destroy noxious
weeds on its right of way. Affirmed.
See same case bekiw, 182 Ind. 140, 105 N,
E. 40.
Tlie facts are stated in the opinion.
Messrs. Wllllain F. Pet«r and James C.
Hntchins for plaintiff in error.
No appearance for defmdant in error.
Hr. Justice HcKenna delivered the opin-
ion of the eourt:
A statute of Indiana provides as follows :
"Sec 1. . . - That all railroad corpo-3
rations'doing business in this state shall,!*
between the Ist day of July and the 20th
day of August, in each year, cause all
thistles, burs, docks, and other noxious weeds
growing on lands occupied by them in any
city, village or township of this state, to b«
cut down and destroyed.
"Sec. 2. In ease any railroad company
shall refuse or neglect to comply with the
requirements specified in the first section of
this act, such company shall be liable in a
penalty of $26 to be prosecuted for in an
action of debt by any person feeling him-
self aggrieved. Said suit may be brought
before any justice of the peace in the county,
who shall require of the complainant surety
to pay costs in case he fails to maintain his
action. Summons may be served on any
agent or officer of the company." [Burns'a
Anno. Stat. 1914, I3 6524, 6525.]
The company was proceeded against un-
der this statute by defendant in error, who
alleged that the railroad company is a cor-
poration doing business in the state, and
that one of the branches of Its railway lines
intersects and rune throu^ his land for a
distance of } of a mile in the township ot
s a index** .
,A_.oogle
isie.
CHICAGO, T. H. & B. E. B. 00. t. ASDKBSOH.
US
CUTTjr, Sullhsn county, IndUna, aad that
the companj, between Julj 1, 1911, and
August 20, 1911, refused Mid neglected to
cauee all noxious weed* (following the
words of the Btatut«| growing on lands oc-
cupied by it in tlie township and county
desigaated above to be cut down and de-
■troyed, and especially on its lands iiuning
through the lands of defendant in error.
He also alleged that he felt himself ag-
grieved thereby and hod been damaged in
the sum of tZS, and should receive the st&t-
uto[7 penalty of t2S.
Tlie company demurred to the complaint
tor insufSciency to constitute a cause of
action, filing therewith a memorandum al-
leging, among other things, that the act was
unconstitutional.
The demurrer was overruled and the ooni-
^pany filed a general denial of the allegations
«of the complaint.
• 'After hearing a penalty was impoaed upon
the company in the sum of t2G. It filed a
■notion in arrest of judgment In which it
repeated that the law was unconstitutional.
The motion was overruled and judgment
entered against the company. It waa af-
firmed by the supreme court. In that court
the ground waa specifically urged that the
statute offended the equal protection and
due process clauses of tbs 14th Amendment
to the Constitution of the United States.
The court considered both eontentioni and
rejected both, and to review its deciaion
this writ of error is prosecuted.
Aa offending against the equal protection
assured by the 14th Amendment the com-
pany complains that occupiers of land ore
separated into two classes — "(1) railway
corporations, and (2) all others." This, it
Is insisted, is an unnatural and nnjusti-
flable classification with respect to the
obligation imposed of cutting down weeda
growing on lands occupied, aa there ia no
relation between the line of division of the
classes and the subject matter. Onlt, C. &
8. F. R. Co. V. ElIU, 166 U. B. 150, 41 L. ed.
Q6«, IT Sup. Ct. Sep. Z55, and Connolly t.
Union Sewer Pipe Co. 184 V. B. 640, 49
L. ed. 079, 22 Sup. Ct, Rep. 431, are cited.
Ws need not pause to review them or the
many eases decided since them, azplaining
the wide discretion a legislature has in the
classification of the objeeta of l^slatlou.
for immediately repellent to plaintiff in er- 'oBense, to be recovered in a civil action
Tor's contention is Uissourl, K. ft T. R. Co.
T. May, 194 U. B. 267, 48 L. ed. 971, 24
Sup. Ct Rep. 638. In that case a statute
of Texas Imposed a penalty on railroad
eompsnies for permitting Johnson grass and
Russian thistle to go to seed upon their
rights of way. A right of action for the
penalty waa gfven to eonUguous owners.
TbM act waa sustained, but certain diatino-
tions between tliat statute and the Indiana
statute are pointed out. These distinetiona
are: (1) ^e Texas statute gave the paa-
tltj to contiguona landowners; tlie Indiana
statute gives it to "any person feeling^
himself aggrieved." (Z) The Texas sUtuteg
required the* contiguous landowner to be*
free from the same neglect; the Indiana
statute does not impose this limitation. (3)
The Texas statute is limited to the rail-
road's rights of way; the Indiana statute
applies to all lands occupied by a railroad
"in any city, village or township."
How diacriminating and arbitrary these
distinctions make the Indiana statute aa
compared with the Texas statute, and re-
move the latter from authority, is variously
illustrated by plaintiff in error.
The supreme court of Indiana is not spe>
dOe as to these contentions. On the au-
thority of Pennsylvania Co. v. State, 142
Ind. 428, 41 N, E. 037, and Western U. Teleg.
Co. *. Ferguson, 157 Ind. 37, 60 N. E. 079,
the court decided that it was neither neces-
sary to aver in the complaint nor prove that
the person bringing the action had suffered
actual damages. The court said: "The
penalty imposed is for violation of a duty
required o{ appellant [the railway com-
pany] and it ia not in a position to com-
plain that the penal^ when collected shall
be paid to the complaining party, and this
la not available in defense of an action for
tiie recovery of the penalty prescribed."
[182 Ind. 144, 106 N. E. 49.]
In Pennsylvania Co. v. Btate the penalty
was imposed for failure of railroads to pro-
vide blackboards in their passenger stations
showing the time of arrival and departure
of trains, the act providing that one half
of the recovery should go to the prosecuting
attorn^. It was held that this was a meth-
od of compensating that officer and to
encourage Uie actual enforcement of the law
against its violators, and not intended to re-
quire him to become a party litigant.
In the aeoond ease a statute was consid-
ered that required telegrams to be trans-
mitted with impartiality and in the order
of time In which they were received, and
without diacrimination as to rates. It was
provided that any person or company violat-
ing the act should be liable to "any party^
aggrieved In a penalty of (100 for eachg
any court of competent jurisdiction."
won held that the "party aggrieved is the
person whose message the telegraph com-
pany has refused to receive or failed to
transmit on tlte terms or in the manner
prescribed by the statute," and that it was
not necessary for him to show that he had
■ustained any actual damages; that he
might reeover compensation tor damages in-
,A_^oogle
leo
S7 StTPREME OOUBT HEFORTSB.
QoT. Iteii,
d«pendei]U7 of Uie statute wbieh fomiahBd
K cumulative remedj.
Both cases illustrate tlie principle thtA a
penaltf imposed by a statute luaj be giTsii
to an informer or pToaeeutor as a meaus
of enforcing the statute, — as a meaua of
its public vindication, — and neeesBarily there
could be but one recovery in the designated
territory. But we cannot say whom, under
the atatute under review in tliii case, the
court would consider a "par^ aggrieved,"
or who could be considered as a "person
feeling himself aggrieved," to use the lan-
guage of the atatut«, whether a contiguous
landowner, or other landowner, or whetlier
an; person could be aggrieved within the
meaning of the statute if he himself was
guilty of the same neglect as the railroad
company. Nor can we say how the supreme
court would decide as to what wa« meant
by "ianda occupied by" railroad corpora-
tions; whether this would mean only their
rights of way, the deslgnaticm of "In any
ei^, village or township" being only for the
purpose of venue, or mean, which is difficult
to suppose, the corporation's "loundhouses,
shops, yards, repair tracks, turntables,
and other buildings used in conueotion"
with the iniHinesa of a railroad, which
secma to be the alarm of piaintifT in error.
At any rate, such construction has not yet
been given and may never be given, and
we cannot anticipate that it ever will be
given, and on that anticipation hold the
statute invalid. We have heretofore ez-
g^pressod the propriety of waiting, when a
Relate statute ia attociced for unconstitu-
* lionality, until the*Btat« court has given it
a construction which may justify the at-
tack. Plymouth Coal Co. v. Fennayivenis,
232 U. 8. 531, S4B, 58 L. ed. 713, 720, 34
Sup. Ct. Bep. 369. The statute has only
been sppticd in favor of a contiguous land-
holder, and only one recovery has been per-
mitted. So limited, we think its validity
must be admitted under the doctrine of the
May Case. But we ezpresa no opinion con-
eeroing the coneequenoes if a broader con-
struction should be accepted by the state
Judgment affirmed.
(24! u. s. ail
IN THE MATTER OF THE PETITION OF
TilE INDIANA TRANSPORTATION
COMPANY FOE WRIT OF PROHIBI-
TION.
Prohibitiok «=325— Fabtixs — Ebtubm—
Who Moot Maes.
Parties permitted to become oolibel-
lants in an admiralty cause pending in a
Federal district court hj en order which
Is asserted to hare bean beyond the jnrla-
diction of the judge to make may nol^ iqtOB
the failure of the Judge to make a return
to a rule to show cause why a writ of pro-
hibition should not issue to prevent th«
carrying out of auch order, Ite treated as
respondents to the rule, and aa sucii be per-
mitted to file a return.
[Bd. Nots.— For other casm. im Prohibltloa,
Cent. Dig. I Ti; Deo. ai%. -a — •"I
[No. 2S, Original.]
PETITION for leave to Intervene and
make return to rule to show cause why
a writ of prohibition should not iuue to
prevent the carrying out of an order per-
mitting petitioners to become colibellants
in an admiralty cause pending in the Dis-
trict Court of the United States for the
Northern District of lilinoii. Denied, and
time extended for Cling return.
Mr. Harry W. Stondldgo tor the peU-
tioD.
Munorandom opinion by Mr. Chief Jus-
tice White, by direction of the court:
Speaking in a general sense, on the
ground that in an admiralty cause pending
in the district eourt of the United States
for the nori;hem district of liliaoia, one of
the judges of that court had, by an order
whidi he was absolutely devoid of jurisdic-
tion to make, permitted more than 270 per-
Bons to l>ecome colibellants, an application
by the defendant in the cause was made on
the 16th day of October, 1916, for leave to
file a petition for prohibition directed to the
judge in question, to prevent the earrying^
out of tha order. On the S3d of Octobers
•penuiasion to flie the petition for proliibi-*
tion was granted and a rule to show cause
was directed to be issued to the Honorablo
Kenesaw M. landis, the judge by whom the
order complained of was made. On the day
upon which this rule was returnable, De-
cemtier 4, there was no response to the rule
made on Ijehalf of the respondent judge,
but bj oral motion a request was made on
behalf of the parties who, It was aaeerted,
had been mistakenly permitted to become co-
libellants, that they be treated as tha re-
spondents to the rule, and lie permitted in
that capacity to file a return to the rule, a
copy of which return was prepared to Im
filed and presented for filing in case the
permission asked was granted, and that re-
quest is the matter now before us for con-
sideration.
Ws are of opinion, howvver, that the sub-
atitntion of respondents asked for cannot b«
granted, ainee it is apparent that the jodg*
^=>For other ci
la topic ti KET-miHBBR In aU Ker-NnmlNr«d DlgMta * Indoaa
UlS.
RB INDUNA TRAHSP. CO.
187
who rendered the order and agaiost whom the
writ prayed for, U allowed, is to be directed,
tM the eteentUl party rsapondeDt, however
mncb, when hii retam to the rule ia made,
either hj his authority, or because ol their
interest in the result, or aa friends of the
court, the penons to be adreraelj affected
by the gnmting of the relief prayed may be
Iteard to aoatala the wifflcieiny of the re-
turn when that labjeet arises lor oonsider^
tion. We therefore transfer the date fixed
for the return in the original rule to show
cause from the 4th day of December, 191S,
to the ISth day of JsJiuary, 1917, io order
to afford ample opportuuity for the making
by the respondent judge of the reium which
the original order calls for.
And it la ao ordered.
■jGoogle
128 87 SUPSEMB COURT REPORTER.
(MI tf. 3. ie£)
ILLINOIS CENTRAL RAILROAD COM-
PANY et al.
Oct. Tebic,
GEORGE R. WILLIAMS.
CouHEBCB fl=s85— Safety Apfliawceb —
Handholds — SnsPKNSioN of Ddtt bt
iNtEESTATE COHUEBCK OOMMiaSIOM.
Tlie requirement of the Safety Ap-
Elianee Act cf April 14, 1910 (36 Stat, at
,. 208, chap. 160, Comp. SUt. 1913, % 8618) .
% 2, that cars havine ladders shall also ba
equipped with secure nandh old b or grab irons
on toe roofs at the tops of such Udders,
was not, and could not be, suspended bj an
order of the Interstate Commerce Commii-
■ion, loade pursuant to | S of that act,i
which, after directing Uie Commission to
ataiidardize the safety appliances called for
by 9 2, provided that the Conuuission, npon
full hearing and for good cause, might ex-
tend the period within which any common
carrier should comply with the provision*
of 8 3 with respect to the equipment of cars
actually in service upon the dat« of the pas-
sage of Uie act. The sole function of such
proviso is to give the Commission the dis-
cretionary power and duty of determiniuB
the length of time which the carrier ihall
be allowed to make the safety appliances
called for by { 2 conform to ths uniform
standards which the Commission, under | 3,
was to prescribe.
[Bd. Note.— For otler c»»m, ««•
Cant. Dlt- I US: Dbc. Dif. «S9».]
[No. 637.]
IN ERROR to the Supreme Court of the
Stat« of Mississippi to review a judg-
ment which affirmed a judgment of the Cir-
cuit Court of Hinds County, In that state,
in favor of plaintiff In a personal-injury
action. AfBrmed.
See same case below, — Miss. — , 72 So.
IBS.
The facts are stated In the opinion.
Messrs. Charles C. Im Forges, Blewett
Lee, Charles N. Burch, and Robert B. Mayes
for plaintiffs in error.
Meisre. William H. Watklns and U. F.
Harrington for defendant in error.
7 *Mr. Justice Clarke delivered the opinion
of the court;
It will contribute to brevity in this Opin-
ion to designate the parUes as they were
in the state circuit court, the defendant in
error as plaintiff and the railroad compa-
nies as defendants.
The plaintiff, a iwitehman in the employ
of the defendants, was in the act of mount-
ingi b? means of a ladder, to ths top of a
box car to set the bralce, when the hand-
hold or grab
ladder, and ii
to the roof of the car, gave way, causing him
fall to the ground and sustain injuries,
for which he instituted suit in a circuit
court of Klississippi. and recovered a judg-
ment, which was affirmed by the supreme
court of the state. This judgraMit is now
hers for review on writ of error.
Couneel for the defendants concede that
the plaintiff pleaded and proved a case which
entitles him to recover under the provisions
of the Supplement to tlie Federal Safety
Appliance Act, approved April 14, ISIO [30
Stat, at L. 20S, chap, leo, Comp. SUt. 1913,
S saiS], if g E of that act was in effect at
the time the accident to the plwntiff oc-
curred on the night of March ISth, 1913;3
but tbey'claim that this section of the act*
was not in effect at that time, because it
had been suspended until July 1st, 1016, by
an order of the Interstate Commerce Com-
mission, Issued on March 13, 1911, under
the authority contained in the proviso of
g 3 of the act.
Thus the sole question presented for de-
cision is, Doee the order issued bj the In-
terstate Commerce Commission on March
13, IBll, suspend the provisions of S 2 of
the act under discussion until July Ist,
19161
To answer this question requires an ex-
amination of 8S 2 and 3 of the Act of April
14, 1910, and of the order of the Interstate
Commerce Commission of March 13, 1011.
Section 2 of tfae act provides that on and
after July 1st, 1911, "all ears" used by any
common carrier subject to the act, "requir-
ing secure ladders and secure running
boards shall be equipped with audi ladders
and running boards, and all ears having
ladders shall also be equipped with secure
handholds or grab Irons on their roofs at
the tops of such ladders," and it makes it
unlawful to use cars not bo equipped.
A bos car could not property be used
without a secure ladder, and since, by ita
terms, all cars having ladders mnst ba
equipped with secure handholds, the appli-
cation of this section (if it was not suspend-
ed) to the case at bar, the neglect of its
requirements, and the liability of the de-
fendants to the plaintiff for the result to
him of such neglect, are too clear for dis-
cuesion. Texas ft P. R. Co. v. Rigsby, 241
U. S. 33, 60 L. ed. 874, 36 Sup. Ct. Rep. 482.
Section 3 of ths act provides that within
six months from the passage of the act the
Interstate Commerce Commission "aball
designate the number, dimensions, location
and manner of application of the appli-
ances provided for 69 S £ □/ this oot" . . .
and shall give notice of such designation to
carriers subject to the provl-
^s>For other ci
I s«e lame topic * KET-NUlf BBR In sU Ker-NanlMred Dlswts * Indoe*
'Comp. Bt.UU.iSVU. Liili^v; .A_iOOQIC
nuNois G. R. CO. T. wnxuus.
129
^■loiia of tbe act bj sach meuia u the Com-
■ miaBioB* may deem proper, and "there^fUi
•aid number, location, dimeneions, and man-
ner of application, as designated by aaid
Commission, ihail remain as the standards
of equipment to be u*ed on all care subject
to the provieione of this act;" and failure
to eonform its equipment to such atandards
shall subject the neglecting carrier to like
penalty as failure to comply with any re-
quirements of the act. Then follows this
proviso, upon which the defendants rely,
Tit!
"Frorided, That the Interetate Commerce
Cmumisaion may, upon full hearing and for
good cause, extend the period within which
any common carrier thali comply loitk tht
provitiont of tAtt leotion with reepect to the
equipment of ears actually in serrice upon
the date of the paesage of this act."
Pursuant to the command of this 3d sec-
tion, the Interstate Commeroe Commiesion,
on March 13, 1911, Issued an order desig-
nating "the number, dimensions, sizes and
manner of application of the appliances pro'
Tided for by § 2 of the act," and speciScally
deacrlbing the size, eharacto', and location of
ladders on "freight-train cars" and of hand-
liolds to be maintained at the tope of such
ladders. By the terms of this order carriers
were granted an extension of five years from
July let, 1011, in which to bring such safety
•pplinnces into compliance witli the stand'
ards by it prescribed.
The claim of the defendant railway com-
panies with respect to these two section*
la built up wholly upon the assertion, it
cannot properly be called argument, that
because, in the part of 3 3 Just quoted, ref-
erence is made to j 2 for a description of
tiie safety appliances to be standardized,
therefore the whole of | 2 must be treated
as BO incorporated Into $ 3 as to be com-
prehended within the expression of the pro-
Tiso giving power ia the Interetate Com-
merce Commieeion to extend the period
Switbin which any common carrier "tliall
■ oomply mith lh« provition* ofthia (the Sd)
mtetion," etc., and that 5 2 was therefore
■uapended until July let, 191S, by the Com-
miesion's order of March 13, 1011.
That this strained and artificial construc-
tion of the section cannot be allowed may
be made clear by a brief consideration of
the terms and purposes of the two seetiona
of the act.
The congressional purpose in enacting
§ 2 of the act ia very plain. At the time the
act was puaed railroad carriers had in serv-
ice many box cars, requiring for their prop-
er use secure ladders and secure handholds
or grab irons on their roofa at the tops of
■n<^ ladders, and the purpoae of this section
clearly Is to convert Uie general legal do^
37 B. &— 0.
of exercising ordinaiy care to provide aueJi
safety appliances and to keep them In re-
pair into a statutory, aa abaolute and
imperative, duty, of making them "secure,"
and to enforce this duty by appropriately
severe penalties. Chicago, B. ft Q. R. Co.
V. United Btates, 220 U. 8. GEO, 6S L. ed.
ES2, 31 Sup. Ct. Kep. 612.
It is equally clear that the purpose of the
3d section Is to require that the safety ap-
pliances "provided for by 3 2 of the act"
shall ultimately conform to a standard to
be prescribed by the Intentate Commeres
CommfesioQ; that Is, that they shall be
standardised, shall bs of uniform size and
character, and, so far as ladders and hand-
holds are concerned, shall he placed aa ne«T-
ly as possible at a correspcmding place on
every car so that omplq^ees who work al-
ways In haste, and often in darknesa and
storm, may not be betrayed, to their injury
or death, when they instinetively reach for
the only protection which can avail them
when confronted by such a crlEle as often
arises in their dangerous service. It is tor
such emergencies that these safety appli-
ances are provided, — for service in thoae
instant dectilons upon which the safety of
life or limb of a man so often depends in
this perilous employment, — and therefore S
this law requlrea'that ultimately the loca-*
tlon of these ladders and handholds shall
be absolutely fixed, so that the employee
will know certainly that night or day he
will find them In like plane and of like bIm
and usefulneaa on all can, from whatever
line of railway or aection of the eonntry
they may come. This highly important and
humane purpose must not be defeated by
flnease of construction such as la pressed
upon our attention in the argument of this
To this primary purpoae of protecting
the life and limb of employees Is added the
purpose of protecting the lives of passengera
end of securing the safety of property by re-
quiring uniform standards as to otiier
equipment of cars, sutih as coupling appli-
ances, brakes, and the like.
To change these safety appliances on all
the care in the country from what they
were as contemplated by % 2, — "secure,"
but differing "in number, dimensions, lo-
cation and manner of application," — to
what they must be when standardized to
meet the requirements provided for in g 3,
was regarded by Congress as a work so
great and so expensive that it wisely com-
mitted to the informed discretion of the
Interstate Commerce Commission the power
and duty of determining the length of time
which the carriers should bs allowed In
which to accomplish it. To give this dis-
cretion to the Commission is the function,
,A_.OOglC
87 SUPREME COURT EBPURTEB.
3, and ths claim Uist, bj conitruction, pow-
er toMj be found lu It to lUBpend g 2, U too
forced tuid Tumatiml to be »eriouslf con-
■Idercd.
ThlB reading of the two aections makea
tfaem itend together u an exprewion of a
consistent congreBiicnal purpose "to pro-
mote the safety of employees and travelers
on railroada" on and after July 1st, 1011,
by requiring that the safety appliances de-
scribed in § 2 of the act shall ba secure and
efficient from that data, and by requiring, as
f 3 provides, that these appliances shall ba
• brought as speedily as may be to a uniform
r standard of location, siie,*snd usefulness, to
be prescribed by the Interstate Commerce
Commission.
While the question we have considered
has not been presented to this court before
in precisely the form in which we have it
here, yet 8 2 of the act was treated by this
court as in full force as of September 4,
3B12, in Texas 4 P. E- Co. v. Rigaby, 241
U- S. 33, 60 L. ed. 87*, 38 Sup. Ct. Rep. 482,
and the supreme court of the state of Min-
nesota in Coleman v. Illinois C. R. Co. 132
Minn. 22, 166 N, W. 7B3, and the supM
court of Iowa in Cook v. Union P. R. Co.
Iowa, — , 168 N. W. 621, while arriring at
their concluslona by somewhat different an-
alyses of the lections of the Act of April
14, 1810, have given to thera precieely the
meaning and effect which we are giving
them in this decision. It results that the
judgment of the Supreme Court of Idissis-
dppi il affirmed.
CLAUDE H. DEAN, Appt.
■R. BEAUe DAVIS, Jr., Truetee, etc
Baitkeuptct «=3l6B(3) — PairEiiMOK»-
Tbansfkb to Thibd Feb son.
1. No preferential transfer forbidden by
the Bankrupt Act of July 1, 1898 (30 Stat,
at I- 502, cbap. 641) | 60b, as amended by
the Act of Feb. 6, 1908 (32 Stat at L. 800.
chap. 4S7, I 13, and Act June 2S, 1910, 36
Stat. 812. c 412, i 11. Comp. SUt. 1913,
{ 9644), when made within lour months of
the bankruptcy proceedings, results from the
glvins of a mortgage by the bankrupt to
secure notes representlDg moneys contempo-
nneonsly advanced by the mortgagee to take
up other notes given by the bankrupt, which
the bank discounting and holding tbem claim-
ed bore forged indorsements, although the
mortgagee knew that the mortgagor wea in-
Bolvent. If anyone was preferred, it was the
bank, not the mortgagee.
[Bd. Noto.-S'or otber oum. sea BankrnplEy.
Cttit. DlS. H ». HO; DM. Dig. «Z9lUU).l
DEB. Dklat OB Dbisaud."
2. A mortgage of all the mortgagor's
property, given to secure notes, orerdus
when the mortgage was recorded, which
represent moaeys advanced to take u^ other
notes given by the mortgagor, bearing in-
dorsements that the bank diacounting and
holding them claimed to be forgeries, must
be deemed to be one to hinder, delay, or de-
fraud the creditors of the mortgagor, with-
in the meaning of the Bankrupt Act of July
1, 18B8 (30 Stat at L. 684, chap. 641,
Comp. SUt 1913, S !)661), | 67e, avoiding,
"except as to purchasers in good faith and
for a present fair consideration," every
transfer made by the bankrupt "within four
months prior to the Sling of the petition,
with the intent and purpose on his part to
hinder, delay, or defraud his creditors, or
any of them," where the mortgagee knew
that the mortgagor was insolvent and was
making a preferential payment to avoid a
threatened criminal proeecution, and must
have known that Buspenaion of hia busineea
and bankruptcy would result from giving
and recording such mortgage.
[Efl Nota— For otbrr c»«eB. »ee BsnkmpIsT.
Out, Dig. It W7, MS: Dm. Dig. *=m.
For othar deflnltlam, aee Wardg and PlinDea.
S«coad Series. Hinder, DsIbt or Delraud.l
BANKnurrcT «=30ft— Appbal — Revebsi-
BLK IObbob — lasuEa — Objection not
Raised Below.
3. A decree granting relief under the
provisions of the Bankrupt Act of July 1,
1898 (30 Stat, at L. 664, chap. 541, Comp.
Stat 1913, S 9831), g 67 e, avoiding fraudu-
lent transfers by a bankrupt, will not bo
disturbed by the Federal Supreme Court on
the ground that the bill was framed under
g 6(^ of that act, aa amended by the Act
of Feb. G, 1003 (32 Stat, at L. 800, chap.
487, { 13, and Act June 25, 1910, 38 Stat
642, c. 412, i 11, Comp. Stat. 1913, { 9644),
avoiding preferential transfers, where this
objection was not raised in either of the two
lower courts, and the issue of fraudulent
transfer was presented by the pleadings, was
fully tried, and waa found against the appel-
lant
red. Note.— For other easM. ••• Baskmptcr.
Dec Dig. «=>30e.]
[No. 70.]
Argued end submitted November 6 and 7,
1916. Decided January 8, 1917.
APPEAL from the United States Circuit
Court of Appeals tor the Fourth Cir-
cuit to review a decree which affirmed m,
decree of the District Court for the Eastern
Diatriet of Virginia, setting aside a mort-
gage given by a bankrupt within four
months of the bankruptcy proceedings. At-
See same case below, 128 C a A. 6S8,
212 Fed. 88.
The facta are aUted in the opinion.
Messrs. Wyndhftm R. Heredltb and 0.
V. Meredith for appellant.
Messrs. Richard B. Davlc and Bwtl«tt
Roper, Jr., for appeltea. ^QIC
isFor other caia ii
le topic * KBT-NUUBEB In all Kay-NumtMrCd Dlgesta * laOnm
isie.
DEAN T. DAVIS.
ISI
7 * Ur. Justice BFandolB delivered the opin-
ion of the court:
The Bankruptc7 Act (a« amended Feb, B,
1903 ^ Stat at L. 800, chap. 487, | 13, and
Act Jun« 2fi, 1910, se Stat 842, e. 412, f 11,
Comp. Stat. 1913, | 96441) provides In | 60b
that if a debtor baa, within four months be-
fore the filing of ths petition in bankmptcy,
made a transfer which the person receiv-
ing the eame has reason to believe was in-
3 tended to give a preference, the tranafer
7^all be voidable, and the truatee In bank-
rnptcf may recover the proper^ or Ita
value. The act alao provides in § S7e, 30
Stat at L. S04, chap. 541, Ckimp. Stat 1S13,
I MSI, that if a debtor, within four montba
before the filing of the petition in bank-
ruptcy, make* anj tTanafer "with the intent
and purpoae on hia part to hinder, delay ot
defraud his credttora, or any ol them," it
■hall be null and void except as to puToha«-
era in good faith and for a present fair con-
sideration; and that it ahall be the du^ of
the truatee to recover the aante.
K. Crawley Jones was a fanner and owner
of a conntry store. A bank, having die-
eonnted his notes bearing indoraemeuta
which it later concluded had been forged,
demanded that Jonea take up tlie notes.
Fearing arrest, he appealed through bis
father to hia brother-in-law. Dean, for a
loan of $1,600, promising to aecure it by
• mortgage of aD his property, which he
represented waa worth more than five
times that amount Dean provided the
mott^, asd on September 3, liKIB, acting
Id conjuncUon with Jones's father, "took
vp" the notea. Most ot them were not yet
dne. A mortgage deed of trust dated
September 8 waa eKceuted September ID,
and recorded September 11. It covered
practically all of Jones's property, including
the stock in trade and accounts, store fur-
nishings and flxturea, hoosehold furniture
and goods, live stock, crops standing and
cut, and the farm itself, t^e laat subjei '
a prior deed of trust Four mortgage notes
were given, payable respectively in seven,
thirty, sixty, and ninety days; with a pro-
viso that upon default on any one all should
beoome payable. The first note — and hence
all — was overdue when the mortgage
recorded. On that day Dean directed that
possession of the property be taken, which
was done on Septembier 13 (the 12th being
Banday). Jones was at the time deeply in-
aolvent and had many misecured creditors.
Borne of these immediately challenged tlie
^Talidity of the mortgage. Within a ■
Jdays an involntary petition in bankruptcy
' was filed and*Jonea was adjudicated a bank-
rupt The mortgaged property was convert-
ed into cash under an agreement with gen-
eral creditor! that it should be deposited
to await the ultimate determlnaUon of &m
righta of the parties. It yielded only fl^
034, — leaving nothing for the generid credi-
tors iC the mortgage la held valid.
Davis, the trustee in bankruptcy, brought
bill In equity to set aside the mortgage.
The district court granted the relief prayed
for; and ita decree was affirmed by the cir-
cuit court of appeals. Both courts found
the facta to be In aubatance a* above stated
and held the mortgage void under 9 <l7e as
having been made 1^ Jones "witit the intent
and purpose on bis part to hinder, delay or
defraud his creditors," to one not a "pur-
chaser in good faith" within the meaning
of the act. The circuit court of appeals
held the mortgage void also aa a preference
under g OOb (128 C. C. A. 858, 212 Fed.
88). The case comes to this court upon
appeal; Dean contending that the mort-
gage is not Invalid under either | 60b or |
87e.
The mortgage was not voidable as a pref-
erence under S SDb. Preference implies pay-
ing or securing a pre-existing debt ot the
person preferred. The mortgage waa givm
to secure Dean for a aubetantially contem-
porary advance. The bank, not Dean, was
preferred. The use of Dean's money to ac-
complish this purpose eontd not convert the
transaction into a preferring of Dean, al-
though he knew of the debtor's insolvme]'.
Here circuity of arrangement will not save
a transfer which effects a preference from
being invalid aa such. Kational Bank v.
National Herkimer County Bank, 225 U. 8.
178, 184, 6S L. ed. 1042, 1046, 32 Sup. OL
Rep. 633. But a transfer to a third per-
son is invalid under this section as a pref-
erence only where that person was acting on
hehalf of the creditor, as in Re Beerman,
112 Fed. 668, aud Walters v. Zimmerman,
208 Fed, 62, 138 C. C. A. 400, 220 Fed. 805.
Here Dean acted on the debtor's behalf In
providing Uie mon^ and taking np tbs^
notes. J
* But under | 67e the basis of invalidity is*
much broader. It covers every transfer made
by the bankrupt "within four montliB prior
to the filing of the petition, with the intent
and purpose on hia part to hinder, delay or
defraud hia creditors, or any of them" "ex-
cept as to pnrebasere in good faith and for
a present fair eonaideration." As provided
in I 67d, only "licna given or accepted In
good faith and not in contemplation of or
in fraud upon this act" are unassailable.
A tranafer, the Intent (or obviously neces-
aary effect) of which is to deprive creditors
of the benefits sought to Iw secured by the
Bankruptcy Act "binders, delays or d*-
frauds eredltore" within the meaning of |
e7e. Van Ideretins v. National Disoount Co.
227 U. S. fiTS, S82, 57 Ik ed. ess, M4, tt
A^iOOglC
IT 8UFRBME COITBI REPORTER.
0«. 1
Snp. Ct. Kep. 343, polnta out the dUtJnctlon
betveeu tha intent to pietar kad the intent
to defr«.tid. A tranBoction Bia,j be invBlid
both *• a prefeiencfl and m a fraudulent
trtmBfer. It may ba invalid only u a prefer-
floce or only aa a fraudulent transfer. Mak-
ing a mortgage to secure an advanoe with
which tbe insolvent debtor Intend* to pe.J a
pre-existing debt does not neceasBrilf imply
an intent to hinder, delaj, or defraud credi-
tors. The mortgage may be made in the ex-
pectation that thereby tlie debtor will
extricate himself from a particular difScuIty
and be enabled to promote the Interest of all
other creditors by continuing his busineaB.
The lender who makes on advance for that
purpose with lull knowledge of the facts
may be acting in perfect ''good faith." But
where the advance is made to enable the
debtiiT to malte a preferential payment with
bankruptcy in contemplation, the transac-
tion presents an element upon which fraud
may be predicated. The fact that the money
advance is actually used to pay a debt does
not necessarily establish good faith. It is
a question of fact in each case what the In-
tent was with which the loan was sought
and made.
We cannot say that the facta found by the
^district court and afHrmed by the circuit
• court of appeals werentot supported by the
evidence, nor that these courts erred in con-
cluding upon this evidence that the mortgage
waa made with the purpose and Intent to
hinder, delay, or defraud Jones's creditors,
and that Dean was not, aa against general
creditors, "a purchaser in good faith."
Jones knew that he was insolvent. He knev
that he was making a preferential payment.
He must have known that suspension of his
business and bankruptcy would result from
giving and recording a mortgage of all his
property to secure a note which had ma-
tured before the mortgage was executed.
The lower courts wers justified in oonclud'
Ing that he intended the necessary conse-
quences of bis acti that he wlUtogly
flced bis property and bis other creditors to
avert a threatened criminal prosecution;
and that Dean, who, knowing the facts, co-
operated in the bankrupt's fraudulent pur-
pose, lacked the saving good faith.
The conclusion reached by the 1i
courts is supported by many decision
the several district courts and circuit courts
of appeal, which are referred to in the mar-
gin.l It is in harmony with both the Van
1 Cases holding that a mortgage Is a
fraudulent conveyance where taken as se-
curity for a loan which the lender knows Is
to be used to prefer favored creditors. In
fraud of the act: Parker v. Sherman, 129
C. C. A. 437, 212 Fed. 917 (C. C. A. 2d C.) ;
Re Soforenko, 210 Fed. 662 (D. G. Mass.) ;
Iderstine'Case, and Coder t. Arts, 213 V. 8.7
223, 244, S3 L. ed. 772, 781, 29 Sup. Ct. Rep.
436, 10 Ann. Cas. 1003, upon which ap-
pellant particularly relies. In each of these
oases this court refused to hold fraudulent
In law a transfer which the circuit court of
appeals had found to be innocent in fact.
In the Van Iderstine Case, where a pledg*
was held valid, the circuit court of appeals
had expressly found that the pledgee was
without knowledge of the debtor's fraudn*
lent intent, if such there was. In Coder v.
Arts, where a mortgage was held valid, the
circuit court of appeals had found that, in
making the mortgage, the debtor had no
intent to hinder, delay, or defraud creditors,
and this court said that, "in view of the
finding of the circuit court of appeals, it
may be that [he] though Including in the
conveyance a largo amount of his property,
good faith, with a view to preeerv-
ing his estate and enabling him to meet his
indebtedness." This court, while declaring
itself l>ound by the facta so found, was care-
ful to express Its dissent from the view^
"that the giving of the mortgage and its^
effect up<Hi other creditors could not be'eon-*
~ as an item of evidence in determin-
ing the question of fraud."
Dean contends also that relief should not
have been granted under J 67e because the
bill was framed under S 60b. The objection
was not taken in the district court, althou^
the question of Invalidity under S 67e was
elaborately discussed on demurrer to the
hill as well as upon flnal hearing. Twen^-
flve other errors were assigned on the ap-
peal to the circuit court of appeals. This
objection was not raised then. It was in-
sisted only that the evidence did not war-
rant the Dnding of fraudulent intent. Seo>
tion OOb seems to have been mainly in the
mind of the pleader when the bill of com-
plaint was drafted, but not exclusively, for
it alleges that the plaintiff as trustee wsa
entitled "to recover property transferred by
said bankrupt in fraud of his creditors."
The answer expressly alleges that the mort-
gage was accepted "without any intent or
purpose of aiding said Jones to defraud, de-
lay, or hinder his creditors, and not in con-
templation of or in fraud of the Bankruptcy
Act, or any of Its provisions, believing him
to be solvent, and that he would continue
his business." The issue of fraudulent
transfer was presented by the pleadings,
Johnson r. Dismukes, 122 C. C. A. 652, 204
Fed. 332 {C. C. A. 6th C.) ; Lumpkin v.
Foley, 122 C. C. A. 642, 204 Fed. 372 (C
C. A. 6th C.)i Re Lynden Mercantile Col
166 Fed. 713 (D. C. Wash.); Roberta y.
Johnson. 81 C. C. A. 47, 161 Fed. 687 (C.
C. A. 4th C.) i Re Pease, 129 Fed. 446 (D.
CMiUi:,
.A^iOOglc
WESI'EBN TSAK8IT CO. w. LESLIE ft Ca
WM full; tried, and wu found agalnat the
appellftut. No error was wnmmtted.
Decree affirmed.
A. C. LESLIB & COMPANT, Limited.
Cabriebs ^»1S8<1)— LnnTiRQ Liabilitt
— Agbixp Valdb— LuBiLirr as Waek-
HOUSUIAH.
1. A re) eased- valuation clauie in an io-
teratate bill of lading, based upon a differ-
ence in the carrier's tariffs on Bis with the
Interstate Commerce CommiBaion, is talid
and controlling, although the loss occun
while the freight Is in the carrier*! ware-
house at an intermediate point, conform-
ably to the provisionB of one of such tariffn,
which confers the ri^t in transit of trea
storage and diversion at that point, the
bill of lading recitinf; that the shipment is
to be held at that point for orders, and pro-
viding that everv service to be performed
thereunder is auoject to all the conditions
therein contained.
[Ed. Note.— For Mlm cases, see Oarrlsra,
Cent Dlt. g W; Dec Die «S9US(1).]
Cabbirbs ^=>141 — LiABiUTX AS Wabx-
iiousBUAN— Biu. or Ladino—New Con-
2. No new contract of warehoasing,
whol); independent of the contract of car-
riage, was created by a letter from tiie car-
rier to an interstate shipper, who had then
enjoyed nearly two months' storage at an
intermediate point, vliich stated that the
goods were held there in storage subject
to a circular therein inclosed, which was a
copy of thr carrier's tariff on flle with the
Interstate Commerce Commission, giving the
riglit in transit to free storage and diver-
sion at that point.
[Ed. Note.— I^r otbsr cases, »■ Carrlars,
CcDL Dig. H Ell, «UH; Dae. Dig. <8=3H1.]
C. Mish.). See also Walters v. Zimmerman,
•. & on appcftl, 20S Fed. SZ (D. C. Ohio),
13S C. C. A. 409, 220 Fed. S06 (C. C. A. 6th
C).
Cases upholding the mortgage security
because the lender did not Icnow that the
insolvent borrower intended to make fm-
(iroper payments to favored creditors — thus
ndicating that the mortgage would he
fraudulent tf such additional fact were
shown: Grinstead v. Union Sav. A T. Co. Ill
C C. A. 3SS, 190 Fed. 543 (C. C. A. 0th
C.) J Powell V. Gate City Bank, 102 C. C. A.
65, 178 Fed. 800 (C. C. A. 8th C); Re
KuUbcrg, 178 Fed. 585 (D. C. Minn.) ; Ohio
Valley Bank Co. r Mack, 24 L.Il.A.(N.S.)
184. 80 C. C. A. fl06, 163 Fed. 155 (C. C. A.
Sth C.}; Stedman v. Bank of Monroe, 54
C. C. A. 289, 117 Fed. 237 (0. C. A. 8th
C); Re Soudan Mfg. Co. 51 C. C. A. 478,
113 Fed. 804 (C. C. A. 7th C).
In accord with this view are also the de-
ebions which hold that a general aaeignment
tor the benefit of creditors, though without
3. A recovery at the ratio of $100 per
ton for the lost freight Is the limit of the
damages recoverable for the loss of a part
of an interstate shipment of 25 ton* of cap-
per, under a hill of lading which contains a
released- valuation clause of $100 per net
ton, based upon a difference in the carrier's
freight rates on file with the Interstate
Commerce Commission.
[Bd. Kot*.~-7or other ouss, ks Carriers,
Cent. DiB. | 708; Dsc Dig. «=>15S<1).1
[No. 104.]
Argued and submitted December IB and 20,
lele. Decided January 8, 1917.
IN ERBOR to the Supreme Court, Appet*
late IMvirion, Fourth Department, of the
State of New York, to review a judgment
which afSrmed a judgment of a ^wcial
Term of the Supreme Court in and for the
County of Erie, in that state, affirming a
judgment of the City Court of Buffalo In
favor of an interstate shipper, for the full
value of a freight toss, notwithstanding a
released-valuation clause in tlie bill of lad-
ing. Reversed and remanded for further
proceedings.
See same case below in appellate division,
IHB App. Div. 947, 150 N. Y, Supp. 1073.
The facts are stated In the opinion.
Hr. L«8ter F. Gilbert for plaintiff in
* Ur. Justice Brand els delivered the opln-<
ion of the court:
The Western Transit Company, operating
steamers between Buffalo and other points
on the Great Lakes, formed, with the New
preferences, is void under g 67e because its
necessary effect is to hinder, delay, or de-
fraud creditors in their rights and remedies
under the Bankruptcy Act. Ke GutwLllig,
00 Fed. 478, 34 C. C. A. 377, 63 U. S. App.
101, 92 Fed. 337; Davis v. Bohle, 34 C. C,
A. 372, 92 Fed. 326; Rumaey A S. Co. v.
Novelty & Mach. Mfg. Co. OS Fed. 699. See
Randolph v. Scruggs, 100 U. S. 633, S38,
47 L. ed. 118S, 1189, 23 Sup. Ct. Rep. 710;
George M. West Co. v. Lea Bros. 174 U. S.
600, 696, 43 L. ed. 1008, 1100, 19 Sup. Ct.
tep. !
It i
t is difflcult to reconcile the following
..«*H or dicta in them with the great weight
of authority and the decisions of this court;
Re Baar, 130 C. C. A. 202, 213 Fed. 828
(C. C. A. 2d C.) ; Re Hersey, 171 Fed. 1004
(D. C. Iowa) ; Sargent v. Blake, 17 L.R.A.
(N.S.) 1040, 87 C. C. A. 213, 180 Fed. 57,
15 Ann. Cas. 58 (0. C. A. 8th C.) ; Re Bloch,
74 C. C. A. 250, 142 Fed. 874 (C. C. A. 2d
C.) ; Githcns v. Shiffler, 112 Fed. 605 (D. C.
Pa.).
■ iM same topic * KET-NUUBER Id all Kej-Numbered Dlnsta A Inaeus ''
-gic
lU
»7 SUPREME COUKT EEPORTBH.
Oor. Teuc
York Centra! Bailroad, a. "lake and rmil"
line between Klichigan oad New York city.
Among the privileges and facilitlEs offered
by this line was the right "in traneit of free
storage and divergion at Buffalo." That is,
the shipper, inatead of sending his gooda
from Michigan through to New York city,
waa entitled, without the payment of any
extra charge, to have them atored at Buffalo
for a period, to await further orders, and
be forwarded later to New York. The
shipper was also given the privilege of "di-
rersioc," — that ia, of changing the ultimate
destination of the stored gooda upon proper
adjustment of the rate. On September 23,
1008, A. C. Lealio ft Company, Limited,
the plaintiff below, delivered to the Weatem
Transit Company, the defendant below, at
Houston, Michigan, for shipment orer tbb
line to New Yoric city, £S tons ot copper
ingots, wltb direction to store the same
upon arrival at Buffalo to await further
shipping directions. The copper arrived
there September 30, and was placed in the
Transit Company's warehouse. Nearly four
months later about one ton of it was stolen
from the warehouBe. An action was
brought by the shipper in the city court of
Buffalo to reeorer its value. The Transit
Company denied all liability: hut the court
found that the loss was due to iti negli-
gence, and held the eompany liable tor the
full value of the copper lost. The judg-
|ment of the city court was affirmed by the
• supreme court of New York at special term,
and also by the appellate dlTisioo of that
conrt (lee App. Div. S47, ISO N. Y. Supp.
1073.) Applications for an appeal to the
court of appeals of New York having been
denied, both by the appellate division and
by the chief judge of the conrt of appeals,
a writ ol error to this court was granted
on the groand that the decision below in-
volved a Federal question, namely: the con-
struction and effect of the bill of lading and
of tariffs filed under the Act to Begulate
Commerce as amended. <Act Jnne 29, 1906,
chap. 3591, 34 Stat at L. S84, Comp. Stat.
19X3, I 8563.)
The queation before this court relatM
■olely to the measure of damages. The
diipper contends that It is entitled to the
full value of the coppar lost, which was
<271.3B. The carrier contends that the
damages recoverable are limited to $94.10;
that is, the value not to taceed flOO a ton.
In support of this limitation it relies upon
the fact that freight was paid at the rate
of IS cents per ton under a bill of lading
and a tariff which names the following
rates from Houghton, Michigan, to New
York city:
"Copper Ingota . . . Talne not to szeeed
noo a ton, 18^ per Vm,
Copper ingota . . , value not expreesed
, , . 30# per ton."
The shipper insiats that it is enforcing the
liability ot the Transit Company not ai
currier, but as warehouseman; and that the
terms of its obligation as warehouseman are
fixed, not by the bill of lading and the
tariff provision quoted above, but wholly by
the letter of November 26, I90S, and the
circular therein referred to, which are
copied in the margin.* S
* The Transit Company filed wltb the In-7
terstale Conunerce Commission, in addition
to its general tariffs covering "lake and
rail" rates, a separate tariff known as I. C.
C. No. 2 SB, covering specifically storage
and diversion privileges at Buffalo, as seta
forth in the circular copied in'the margin.*
The filing of this tariff was required ))y the
act {see Goldenberg v. Clyde a & Co. 20
Inter. Com. Rep. 527 ) , since the gen-
eral tariff did not specify the det^l of the
storage and diversion privileges. The Act
to Regulate Commerce, as amended, pro-
vides expressly (g 1) that the term "trans-
portation" includes atorage. And { 6 (Comp.
St 1913, f 8589) provides that n carrier most
file with the Interstate Commerce Commis-
sion Urifta "showing ail the ratea, fares, and
charges for transportation," end "shall also
stata separately all storage charges,....
all privileges or facilities grant«d or al-
Buffalo, N. Y, Nov. ZB, 19D8.
Messrs. A. C. Leslie & CoDutany,
Montreal, Qoa.
Gentlemen; —
Replying to your letter of 24th, Instant^
would advUe you that wa have in store here,
lot 1038 ingot bora of copper, marked M. M.
102, as well as lot of B79 bgot bars, marked
M. M. 97.
This copper came forward in our steamer,
BuffaJo, which unioadsd here September
30th, and will be held here subject to anr
storage circular L & C. No. 236, oopy of
which I inclose.
Yours truly,
(Signed) Edwin T. DougfaM,
D. Qfneral lunoger.
I. C. C. No. £30, Superseding I. C. Q. No.
231.
The Western Transit Companr, New York
Central k Hudaon River R. R. Line. Gen-
eral Office.
Copper and Copper Matte, Pig Lead and
Spelter for Storage and Diversion at Buf-
falo.
The Western Tranrit Company will M-
siott at Buffalo, under the following rulea:
1. The Western Transit Company, at re-
qnert of owners, will fumiah free itorage
A^iOOglC
WESTERN THANSIT CO. ▼. LESLIE t CO.
1S9
lowed Mid any rules or regnlatioiig which
in mnj nise ehan^, affect, or detennfue any
part or th« tgpegaXt at auch aforeuid
The bill of lading. In a form ainiilBr to
that approred and recommended by the In-
terstate Commerce Oommlieion (14 Inters.
Com. Rep. 34S), oontaini the following,
among other proTisiona:
"It is mutually agreed in consideration
of the rate of freight hereinafter named,
■a to each carrier of all or any of said prop-
erty over all or any portion of eaid route
to destination and aa to each party at any
time intereated in all or any of said prop-
taty, that every service to be performed
hereunder shall be nibjeot to all the «od-
ditions, whether printed or written, herein
contained, and which are hereby agreed to
by the shipper, and by him accepted for
himself and his assigns aa Just and reason-
able."
To be held at Bflo. for orders.
"^alue not to exceed $100 per net ton.
Limited by written agreonent.
"The oonsignor of this property has the
option of shipping same at a higher rate
without lltnitation as to value in case of
loss or danuige from causes which would
make the carrier liable, but agrees to the
Sspecified valuation named {n case of loss or
■ damage from causes which would'make the
carrier liable, because of the lower rate
thereby accorded for traneportation."
Conditions.
"Tht amount of any loss or damage for
which any carrier beoomes liable shall be
computed at the value of the property at
the place and time of shipment under this
bill of lading, unless a lower value has been
agreed upon or ia detennined by the olasslfl-
cation upon which iJie rate is based, In
either of which events snch lower value
shall be the maximum price to gorem such
computation."
The release valuation clause in an inteT'
state bill of lading when based upon a dif-
ference in freight rates ia valid. Adams Exp.
Co. r. Croninger, 226 U. & 401, 609, 67 L. ed.
on shipments of oqiper and copper matte,
pig lead and spelter in transit, at Buffalo,
for a period not exceeding four months.
2, If held loDga than four months, it
will be subject to a charge of one-hall H)
eeot per 100 pounds for each thirty (30)
or part thereof so held.
9, Shipments held under this arraogement
will be at owner's risk, and will not be ao-
oepted for storage unless arrangements are
made with the nnderalgned previous to for-
warding from western lake ports.
4. Shipments ordered out of store will
314, 321, 44 L.II.A. (K.S.) 2S7, 33 Sup. CL
Rep. 14S. The limitation of liability by
means of such valuation contained in the bill
of lading continues although the service of
carrying has been completed and the goods
are held by the carrier strictly as ware-
houseman. Cleveland, C. C, ft St. L, R. Co.
V. Dettlehach, 239 U. B. GSS, 60 L. ed. 453,
36 Sup. Ct Bep. 177. The provisions of
the bill of lading govern even where the
goods are allowed to remain in the carrier's
warehouse after giving receipt therefor and
payment of freight. The carrier and the
shipper can make no alteration of the terms
upon which goods are held under a tariff,
until there has been an actual delivery of
the goods to the consignee. Southern R. Co.
T. FresoDtt, 240 U. S. 032, 60 L. ed. B30, 36
Sup. Ct. Sep. 469. The reasons ore even
more persuasive (or holding that the terms
of a bill of lading govern storage in tran-
sit, like that at Buffalo. The contention
of the shipper that the letter of November
2S, Inclosing the circular, created a contract
of warehousing wholly independent of the
contract of carriage, is contrary to fact.
The Transit Company's circular states
"that free storage is furnished on ship-
ments in transit," and that shipments "wilK
not be accepted for storage unless arrauge-|o
menta are nude with* the undersigned pre-*
vious to forwarding from western lake
porta." Obviously, free storage in transit
was granted only to those who shipped over
this "lake and rail" line, nie shipper had
enjoyed nearly two months* storage when
the circular was received In answer to a
letter of Inquiry. It stated only what was
contained In the tariff filed, which every
shipper waa bound to take notice of.
Tie contention was also made that the
Judgment below was correct, even if the
bill of lading be heM to govern the ware-
housing at Buffalo; because the agreed
valuation clause, properly construed, fixes
an amount far greater than the actual
value for which Judgment was rendered.
The "released" or agreed valuation is "$100
per net ton." There were 2B tons in this
shipment. It Is insisted that, as the 25
tons constituted a singls lot, $2,G00 is re-
coverable for loss of or damage to the
be charged at the through rate in effect at
time the shipment originated, to points to
which through rates are published by the
Western Transit Company.
fi. Shipments ordered to points to which
no through rates are in effect via the West-
Issued May IGth, ISOS.
ESectiva June I6th, 1008.
Edwin T. Douglau,
General Uanager,
Buffalo, N. Y.
A^iOOgle
ISO
87 SUPREME COUflT SEPOETER.
Oct. Tiaii,
whole or to any part of the lot. This
■tructioD does Tiolence to ths language used
tad is unreason able. The valuation clause
fixei not aa arbitrary limit of recovery,
but a ratio. In Kaneas City Southern R.
Ot. t. Carl, 227 U. S. Q39, S50, 57 L. ed.
683, 689, 33 Sup. Ct. Rep. 331, where the
released valuation clause was applied to a
shipment consisting of two bodies and a
barrel, end one box was lost, this court said
the consignor and carrier must have under-
stood the agreed valuation to mean that
the package contained "household goods of
the average value per hundredweight of CS."
The ratio is more naturally applied where
the whole ahipment is homogeneous. Under
this bill of lading the shipper is entitled ta
recover not more than $100 a ten for e«eh
or any ton damaged or lost.
Judgment reversed and cause remanded
for further proceed inge not inconsistent
with this opinion.
THOMAS T. SHERMAN.
CouBTfl «=>3S2(5) ~ Ebbob to CiBcniT
COTIBT OF APPKALa— JD BIS DICTION— B^D-
EBAi. OmmroK— Scope or Rbvuw.
1, The contention in a suit between eltl-
lens of dilTerent states, insisted upon in
both of the lower courts, that certain orders
of a state court upon which defendant re-
lied as justifying hia custody of plaintiff's
property were void as having been entered
witDout due process of law, contrary to the
Federal Constitution, gives the Federal Su-
preme Court jurisdictioa to review t}ie
whole case by writ of error to a circuit
oourt of appeals.
CoNBTITUTlONAt, T.AW «=>255— *'DWB PBO-
OEas or Law"— NOTiCB and HxABiNa.
2. An order made conformably to N. Y.
Code Civ. Proc. Sg 2320 et aeq., adjudging
a person incompetent, and appointing a com-
mittee of his person and estate, is not want-
ing in due process of law where, at each
stage in the proceedings leading up to such
order, the alleged incompetent, then under
commitment to a private hoepitsl, was per-
sonally served with notice and was given
an opportunity to be heard.
[Bd. Note.— For other cases, sse Oonrtltntlonal
Law, Cent Dig. 1| T»-TJ«, 7«-WS; Dee. Dig.
For otber dcflnltloe
Flrrt and Second Sei
Insane Persohb *=>26— J udgmbni— Col-
lateral Attack— Adjudication of Ih-
coktetenct.
3. An adjudication of incompetency,
made conformably to N. Y. Code Civ. Froe.
SS 2320 et scq., after notice and an oppor-
tunitr to be heard, is not open to collateral
fttta^ because the alleged incon^etcnt wa%
' at the time, under commitment at a private
hospital.
[Kid. Note.— far athar cuot, see Intana Vn-
sons, Cnil. Dig. || is. W; Dec. Dig. «=32a.]
COKEriTXTTIONAL Law «=3255— Dub PM-
CEBS OF Law— NoncB and Hbabinq.
4. Uue process of law does not require
that notice and an opportunity to be beard
be given before a court may accept the resig-
nation of a committee of an adjudged in-
competent and appoint another person aa
his
Insane Pebsons «=»28— Judgmbnt^-Col-
LATBRAL ATTACK— ADJCOI CATION OF In-
comfbtemct — Apfointubnt of Comm-
TEE.
5. Orders made by a court of competent
jurisdiction adjudging a person to be in-
competent, appointing a committee, accept-
ing the latter's resignation, and appointing
his successor in proceedings in which the ea-
sentials of due process of law were met,
may not be collaterally attacked on the
^ound that they were entered corruptly,
irregularly, or Inadvertently, or that, be-
cause of a change In the eondition of the
adjudged incompetent, a committee was no
longer required, — especially In an action
which merely seeks damages for the alleged
wrongful withholding of his property.
[Ed. Nots.~-Far otbar csMS, see Inaane Per-
>ns. Cent. Die H M. U: Dso. DIB- »32«.]
[No. 121.1
Argued November 16 and 17, IB16. Decided
January 8, 1017.
TNI
1 Co
ERROR to the United Statei rarenlt
Court of Appeals for the Second Circuit
a judgment which affirmed a judg-
ment of the District Court for the Southern
District of New York in favor of defendant
in an action in which an adjudged inecODpe-
ttat seeks damagei from hi* committee for
withholding his Beeurities and mon^a.
Affirmed.
See same case below, 1S2 C a A. M,
ai6 Fed. 8e7.
The facts are stated in the opinion.
Messrs. Edward F. CoIIadar, Sidney
J. Dudley, and Mr. John Armstrong Chal-
oner, in propria persona, for plaintiff in er-
Mr. Joseph H. CboalA, Jr., foi delend-
*Mr. Justioe BrBndels delivered the opin-?
ion of the court:
This is an action 1b which the plaintiff
•eeks damagei for withholding his seeuri*
ties and moneys. The defendant aets up as
justification Uiat he received and held the
property by virtue of two orders of the to-
preme court of New York, appointing him
sPor other ci
I* topic ft KET-NUUBBR Id all Kar-Mombered Dliasta ft Indaea
CEALONBS T, SHEBUAN.
137.
coDuiutt«a of QiB person and estate of the
plaintiff aa one "incompetent t« manage
himaelf and his affairs." Th« validity and
alleged effect of these orders were denied
bj plaintiff. The action was brought in
1004 in the circuit court of the United
States for the Boutheru district of New
York; was transferred to the dietrict court
January, 1012, by virtue of Judicial Code, 3
800 [36 Stat, st L. 1167, chap. 231, Comp.
Btat. 1Q13, S 1267], and was tried before a
jury in that year. A verdict was directed
for the defendant at the dose of the plain-
tiff's case; and the judgment entered there'
on was affirmed t:^ the circuit court of ap-
peals. The ease cornea here upon writ of
error.
The complaint alleges that the plaintiff Is
a citizen and resident of Virginia and the
defendant a citizen and resident of New
York; but Federal jurisdiction was not
rested solely on diversity of citizenship,
ttThe complaint alleged aUo that the orders
• of the supreme court of Nen'York upon
which defendant relies ore void as having
been entered without due process of law. In
violation of the Federal Constitution. The
contention was iuBisted upon in both the
lower courts. This court has, therefore,
jurisdiction to review the whole case. How-
ard Y. United States, 184 U. S. 678, 681,
4S L. ed. 754, T67, S2 Sup. Ct. Rep. 543.
The orders under which defendant justt-
ftes were that of June 23, 1900, adjudging
plaintiff incompetent, appointing a com-
mittee of his person and estate, snd naming
one Butler as such; and that of November
IS, 1001, appointing defendant as bis suc-
cessor. These orders were mods under stat-
utes of New York, the material portions of
which are set forth in the margin.l The
proceedings were 'held in New York eity,>
where much of plaintiff's property waa
located. For over two years prior to the^
entry of the earlier order plaintiff had heeD|J
an inmate of Bloomingdale,*a private hoa-*
pital near that city. At each stage in the
proceeding leading up to the order of Juno
23, he was personally Mrved there witlt
notice and was given an opportunity to be
heard. Thus he had notice of the motion,
on May ID, to appoint the commission de
lunatico inquirendo; of the inquisition onS
June 12; and of thti>motion to confirm t^e*
inquisition and for appointment of a com-
mittee on June 23. Such notice and oppor-
tunity to be heard at the inquisition was
required by the law of New York, though
not expressly recited in the statute; tto
Blewitt, 131 K. Y. E41, 30 N. E. 687; Grid-
ley V. College of St. Francis Xavler, 137 N.
Y. 327, 33 N. E. 321 ; Be Fox, 138 App. Di*.
43, 122 N. Y. Supp. 880. Plaintiff was
physically able to be present at this hear-
ing. But he did not appear, did not send
anyone to represent him, nor ask for an
sdjournment. At the inquisition the com-
mission and the jury, after hearing wit-
nesses, concluded that bis attendance was
unnecessary, snd did not require him to at-3
tend. There was evidence>that his enforced*
attendance would be detrimental to his
mental health.
As the plaintiff had notice and oppor-
tunity to be heard at each stage of these
proceedings, the essential elements of dua
process of law were fully met, and the court
had jurisdiction to enter that order. It is
not open to collateral attack, although
plaintiff was then under commitment at
Bloomingdale. See Simon v. Craft, 182 U. S,
427, 46 L. ed. 1166, 21 Sup. Ct, Eep. 838.
iCode av. Proo, "2320. Jurisdiction; con-
current jurisdiction,
"The jurisdiction of the supreme court
extends to the custody of the person, and
the care of the property, of a person incom-
petent to manage himself or his affairs, in
consequence of lunacy, idiocy, habitmtl
drunkenness, or Imbecility arising from old
age or loss of memory and understanding,
or other cause. . . .
"2322. Committee may be appointed.
"The jurisdiction, specified in tlie last
two sections, must be exercised by means of
a committee of the person, or a committee
of the property, or of a particular portion
of the property, of the Incompetent person,
appointed as prescribed in this title. The
committee of the person and the committee
of the property may be the same individual.
or different individuals, in the discretion
of the court.
'%SZ3. Application for committee; by
whom made,
"An appIicaUon for the appointment of
•oeh a committee must be made by petition.
which may bo presented by any person. Ex-
cept as provided in the next section, where
the application is made to the supreme
court, the petition must be presented at a
special term held within the judicial dis-
trict, or to a justice of said court within
such judicial district at chambers, whers
the person alleged to be incompetent re-
sides; or it he is not a resident of the state,
or the place of his residence cnnnot be as-
certsinij, where some of his property is
situated, or the state institution is situated
of which he is an inmate.
"2325. Contents, etc., of petition; pro-
ceedings upon presentation thereof.
"The petition must be in writing, and
verified by the affidavit of the petitioner,
or his attorney, to the effect that the mat-
ters of fact therein stated are true. It must
be accompanied with proof, by affidavit, that
the case is one of those speciBed in this
title. It must set forth the names and reel-
dencea of the husband or wife, if any, and
of tha next of kin and heirs, of the persoa
,A_^OOglC
138
87 SUPEEME COURT REPOETEE.
Ooi. Tkuc,
The order of NoTember 19, 1001, accepting
Butler's reiignatloa aa ccmmittee and ap-
pointing defendant In Iiis place, was made
by the court without notice either to the
plaintiff or to the other parties to the
original proceedings. But this was a mere
anbetitution of one ofBcer of the court for
another. No aubetantial riglit of the plaiu-
tiff was affected. Due process does not re-
quire notice and opportunity to b« heard in
•neh a proceeding; and the irregularity, if
any, was not euch as to prerent the court
from excrciaing jurisdiction to determine
the matter.
The validity of t)ie orden was assailed
and their effect contcBted alao on other
grounds. It was contended that plaintiff
had been corruptly lured from his home in
Virginia to New York In March, 1807, and
then illegally committed to Bloomingdale,
and that he could not otherwise hare been
aenred in New York at all in the 1890 pro-
ceedings; that In 189B plaintiff was a resi-
dent of Virginia; that the adjudication of
incompetency in 1830 was made on perjured
evidence; and that the plaintiff was then of
sound mind and competent to manage his
affaire. It was also contended that about
NoTember 6, 1901, the plaintiff, being a
citizen and resident of Albemarle county,
Virginia, waa adjudged by Its county court
to be of sonnd mind and capable of man-
aging hla person and estate; tliat he was
such at the time of the commencemfut of thU
action and haa been since. Much evidence
was offered to support these contentions; g^
but the facts, if establiehed, could not over-<^
come the defense presented by the ordera'Dl*
the supreme court of New York. That court
bad jurisdiction because the plaintiff and
bis property were in New York; and the
cHseiitialB of due process of law were met.
The orders, consequently, are not void; and
they are not subject to this collateral at-
tack. If it be true that the order* ought
to be set aside, either because they were, as
alleged, entered corruptly, irregularly, or
inadvertently (see United States v. Throck-
morton, 98 U. S. SI, SB L. ed. 93; Hilton
V. Ouyot, 159 U. 8. 113, 207, 40 L. ed. 95,
123, le Sup. Ct. Bep. 139), or because,
owing to a change In plaintiff's condition, a,
committee is no longer required, the remedy
must be sought by a direct proceeding to
that end (Re Curtise, 137 App. Div. 684,
12B N. Y. Supp. 468, IW N. Y. 38, 92 N.
E. 36S). No evidence was introduced to
prove that even an attempt was made to
vacate or modify the orders. In this action
of trover, which seeks merely damages tor
alleged wrongful withholding of plaintiff**
property, the eiisting orders constitut* a
alleged to be incompetent, as far as the same
are known to the petitioner, or can, with
reasonable diligence, be ascertained ij him;
and alto the probable value of the property
possessed and owned by the alleged incom-
petent person, and what property has been
conveyed during said alleged incompetency
and to whom, and its value and what oon-
slderation was paid for it, if any, or was
agreed to be paid. The court must, unless
sufficient reasons for dispensing therewith
are set forth, In the petition or accompany-
ing affidavit, require notice of the presenta-
tion of the petition to be given to the hus-
band or wife, if any, or to one or more of
the relatives of the person alleged to he In-
competent, or to an officer specified In the
last section. When notice is required, it
may be given in any manner, which the
court deems proper; and for that purpose,
the hearing may be adjourned to a subse-
Juent day, or to another term, at which
Ite petition might have been presented.
"2327. Order for eommisalon, or for trial
by jurv in courts.
"Unless an order Is made, as prescribed
in the last section, If it presumptively ap-
pears, to the satisfaction of the court, from
the petition and the proofs accompanying
It, that the case is me of those specified in
this title; and that a committee ought, in
tlia exercise of a sound discretion, to be ap-
S Dinted; the oonrt mnst make an order,
IreetiDg, either
"1. if at a oommisatoB iwna, as pre-
aeribed In the next aeetlon, to one or mora
fit persons, designated in the order; or
"i. That the queatlon of tact, arising up-
on the competen<^ of the person, wit& re-
spect to whom the petition pr^s lor the
appointment of a committee, oe tried by a
jury at a trial term of the court.
'^328. Contents of commission.
"The conunission must direct the eom-
missianers to cause the aheriff of a county,
Seoified therein, to procure a jury; and
at they inquire, by the jury, into tiis
matters set forth In the petition; and also
into the value of the real and personal prop-
erty of the person alli^ed to be Incompetent,
and the amount of his income. It may con-
tain such other directi(Mis, irith reapeet to
" ■ - ■ ' r Uie B
"2330. Jury to be procured; proceedings
thereupon.
"The eommiasloners, or a majority of
them, must Immediately issue a precept to
the aheriff, designated In the commission, re-
quiring him to notify, not less than twelve
nor more than twenty-fonr Indifferent per-
sons, qualified to serve, and not exempt from
serving, as trial jurors In the same court,
to appear before the commissioners, at a
specified time and place, within the county,
to make Inquiry, as commanded by the com-
mission. . . .
"2331. Proceedings upon the hearing.
.A^^OO^IC
UK.
KNAUTH, HACHOD, & KUHNB t. LATHAM A 00.
•ompleU defenie. The evidence offered m
properly excluded, and there wi.b no error
directing s rerdict for the defendant.
Judgment affirmed.
LATHAU A OOMFA:Ny et «L {Mo. 99.)
MAX JAFFE et al., SurvlTing Members of
the Firm of Knauth, Nachod, A Eahne,
Appta.,
WnXXAM S. LOVEIX, u Custodian, ete.,
and a« Trustoe in Bankrupt^ of Knight,
Yancey, & Company et al. (No. 259.)
MAX JAFFE et aL, Surviving Members of
the Firm of Knanth, Nachod, & Enhne,
Appta.,
The Federal district court may not
■itartain jurisdiction of a bill or crossbill
which, by reason of the Inadequacy of the
"All the commisaioners must attend and
1>reaid« at the hearing: and they, or a ma-
laitj of them, have, with respect to the
procMdings upon the hearing, aU the power
and authority of a Judge of the court, hold-
ing a trial term, subject to the directions
contained in the commission. Either of thr
eoTomissioners may administer the usual
oath to the Jurors. At leaet twelve Jarora
Bust concur In a finding. If twelve do not
eoneur, the jurors must report their dis-
agreement to the eommiasionera, who must
thereupon dlediarge them, and issue a new
precept to the sheriff, to proenre another
■^ISSZ. Bctum of inquisition and com-
■dasion.
"Tht tnqnlslUai must be signed bf the
Jurors concurring therein, and by the com-
miesionen, or a majority of them, and an-
aaxed to the commisiloa. The commission
and inquisititm must be returned by the
COmmiMionere, and filed with the cleric
"2334. Proceedings upon trial by juiy in
"Wbere an order Is made, directing the
plainly, the questions of fact to be tried j
which may be settled as where an order for
a similar trial is made in an action. The
court may, in that or in a tnbsequent order.
01
allegations seeking to Impress a trust upon
the property of bankrupts whose estate la
in course of administration in another dis-
trict, must be r^farded as an attempt fo
secure priority of payment out of the bank-
rupts' estate on account of moneys fraudu-
lently obtained by the bankrupts and put
into their business.
as BsnkniptcT,
[Nos. 98, SSg. and 200.]
Submitted November 13, IBIS. Decided
January 8, 1917.
K WKIT of Certiorari to the United
States Circuit Court of Appeals for the
Fifth Circuit to review a decree which af-
firmed, with a modification, a decree of the
DiBtrict Court of Alabsma, dismissing a
cross bill in a suit b^un by a trustee in
bankruptcy to set aside an alleged preferen-
ti.ll transfer. Affirmed. Also
TWO APPEALS from the District Court
of the United SUtes for the Northern
District of Florida to review decrees dis-
mlsiiDg suits to impress a trust upon the
proper^ of a bankrupt. Affirmed.
Bee same case below, In No, 98, 135 0.
C. A. 419, 219 Fed. 721.
The facta are stated In the opinion.
direct that notice of the trial be given to
sDch persons, and in such a manner as is
deemed proper. The trial must be reviewed
In the same manner, with like efTect,
and, except as otherwise directed in the
order, the proceedings thereupon are, in all
respects, the same as where questions of
fact are tried, pursuant to an order for that
purpose. The court may make inquiry t^
means of a reference or otherwise, hb it
thinks proper, with respect to any matter,
not involved in the questions tried by the
jury, the determination of which is neces-
sary In the course of the proceedings. The
expenses of the trial, and of such an inquiry,
must be paid by the petitioner.
Laws 18M, chap. 94«.
"2339. Committee nnder control of eonrtt
limitation of powers.
"A committee, either of the person or of
the property. Is subject to the direction and
control of the court by which he was ap-
Kinted, with reapect to the execution of
) duties; and he may be suspended, re-
moved, or allowed to resign, in the discre-
tion of the court. A vacancy created by
death, removal, or resignation may be filled
by the court. But a committee of the prop-
erly cannot alien, mortgage, or otherwise
dispose of, real property, except to lease It
for a term not exceeding five yeaia, without
the special direction of the court, obtained
upon proceedings taken for that purpose, as
preecnbed In Utle seventh of this chapter.
■• ■«• ssma topic * KST-NtrHBBB In all Kar-Nombered Olci
'TlT'frcoogle
140
17 SUPKEME COURT REPORTER.
Cor. Tnu^"
H«nr8. Thomu M. Steven*, Ctearse T.
Ho^, Jnllen T. DstIm, uid V. H. Wat-
son for petitioners and appellaoto.
UeaarB. Walker B. Spencer, Cbarles
Payne Fenner, Ang-nstnB Bennera, Wll-
Itau A. Blonnt, Henrr P. Dart, P. B.
Carter, E. 0. Uuivell, and Henry P. Dart,
Jr., for respondent* and appelleei.
■ *Mr. Justice HcBeyoolds delivered the
opinion of tbe court:
Number 9S.
Enight, Yancey, & Company were dnly ad-
judged bankrupt! in the district court,
northern district of Alabama, April 21,
1910. A few dajg later. In conjunction
with a firm creditor, the receJTera brought
suit in the United States circuit court, fifth
circuit, southern district of Alabama, against
Latham & Company, a French partnership,
Frederick Ley land Steamship Company,
Limited, Louiaville &, Nashville Railroad
Company, and others, seeking to recover
4,200 bales of cotton about to be exported
from Mobile, upon the ground tbat, while
Insolvent, the bankrupts bad transferred it
to Latham ft Company in payment of prior
Indebtedness and with intent to prefer
them. After being taken into pouesaton
by the United States marshal, by order of
court, tbe cotton was released. May 14,
1910, to Latham A Ctwnpany, who executed
a bond conditioned; "Now, therefore, if
the obligors herein shall have forthcoming
and deliver within sixty days from date of
any final decree of this court said cotton
to the proper officer of the court, or shall
^pay and satisfy such decree as may be ren-
Mdered in the premises, then this obligation
■ shall be null and void, otherwise to'remain
in full force and effect." Later the trustee
In bankruptcy was substituted at complain-
July 1, ISIO, Enauth, Nachod, & Euhne
filed in Ue cause a so-called oross bill, sub-
sequently amended, which on motion was dis-
missed both for want of equify upon its faoe
and because the court lacked juriadictiou to
entertain it. The circuit court of appeals
affirmed this action.
The amended cross bill is a mass of
prolix and vagrant statements and allega-
tions from which it is difficult to spell out
any very definite theory. Apparently be-
cause $98,000 — approximate market value
of 1,300 bales of cotton — had been fraudu-
lently obtained from Knauth, Naefaod, &
Kuhne by the bankrupts and used by them
in their business, the form^ songht to im-
press a trust upon what the latter there-
after acquired, including the 4,200 bales
of cotton found at Mobile.
I The all^iationa of the bill are wholly
I inadequate to trace the funds into any
specific cotton (Peters v. Bain, 133 U. S.
670, 693, 33 L. ed. 096, 704, 10 Sup. Ot
Rep. 354), and tha cross bill must be re-
garded as an attempt to secure from the
estate priority of payment on account of
money fraudulently obtained by tbe bank*
rupts and put into their busiuees. Mani-
festly such a proceeding could not be enter-
tained in the southern district of Alabama.
The estate was being administered In an-
other court. Mueller v. Nugent, 184 U. 8.
8, 46 L. ed. 408, 22 Sup. Ct Rep. 260;
Jonea v. Springer, 22S U. S. 163, ST L. ed.
103, 33 Sup. Ct. Rep. 04; Acme Harvester
Co. V. Beekmsn Lumber Co. 222 U. 8. 300,
56 L. ed. 208, 32 Sup. Ct. Ttep. 90; Lazarus
t. Prentice, 234 U. S. 207, 68 L. ed. 1307,
34 Sup. Ct. Rep. 831; Jaffa V. Weld, 208
N. Y. 693, 102 N. E. 1104.
The judgment of tbe Circuit Court of Ap-
peals is affirmed.
Number 26 B.
The record contains the amended bill of
complaint; motions to diamisa, with objec-
tions thereto; final judgment of dismissal
for want of jurisdiction; assignment of»
errors, etc 3
* Shortly after Knight, Yancey, & Company*
were adjudged bankmpta, upon application
of tbe receivers (May, ISIO), the United
States district court, northern district of
Florida, enjoined fbe Louisville t Nash-
ville Railroad from removing or disposing
of 3,000 bales of cotton In its possession at
Pensacola; and In June thereafter tbe duly
selected trustee instituted suit sedtlng to
recover poeeession of the cotton upon the
ground that it had been transferred with
intent to prefer. By tha court's direction
2.035 bales were thereafter delivered to
Latham & Company, who claimed them as
owners, a forthcoming bond having been
given. The remainder — 965 bales — was sold
and proceeds deposited In the First Nation-
al Bank of Pensacola to await final orders.
Subsequently appellants instituted an
■riginal proceeding claiming that the bank-
rupts had fraudulently obtained from thein
'1,000 and invested It in tbis or other
cotton or otherwise, and that they were en-
titled to impress a trust upon tbe avails of
such funds.
The Involved and erraUe allegations
are wholly inadequate to show with eof*
ficicnt definit«ieBS that tbe funds were
invested In the cotton at Pensacola; and
the bill most be considered as an at-
tonpt to secure priority of paym^t out of
the bankrupts' estate upon the tbeory that
it was Increased by appellants' money.
There was no jnrisdlctioii to «at«rtain sudlL
.A^iOOglC
PUENBS8, WITHY, t CO. T. TAHG-TSZE INS. ASSO.
141
R proceeding in the District Court Id Flor-
ida i and Uie Judgment belovr ia accordinglj
■ffinned.
Number 280.
He record also eomiata of tlie unended
bill, filed April 14, 1914; motions to dia-
misB, witli objections thereto; final judg-
ment of diHmisB&l for want of jurisdiction;
kaiignmenta of error, etc.
S At the inatance of the receivers of
7Enight, Yancey, i'Company, May, 1010,
the Louisville & Naehville Railroad was en-
joined by the United States district court,
northern district of Florida, from remov-
ing or diepoBing of 1,950 bales of cotton
then in ita posseaaion at Pengacoia, Florida,
and claimed by Weitpbalen & Company.
Afterwards that Ann instituted an original
•uit to recover, pending which, under agree-
ment, the cotton was sold and the proceed*
deposited in two banks at Pensacoia, sub-
ject to final judgment. The proceedings
were ■ubstantially the same aa in Number
SS9, and like action was taken by the court.
The jni^^cnt below is afSrmed.
CofBTs «=>383(1)— CisnoBABi— To Cib-
ouiT CouBT OF Appeals— lUFBoviDBNT-
LT Okantcd— DiBiassAi..
1. Petitions for certiorari to the Fed-
eral circuit courts of appeals are at the
risk id the party mailing them, and when-
ever, in the prof^eas of the case, facts de-
velop which, if disclosed on the application,
would have induced a refusal, the Supreme
Court may, upon motion by a party, or ex
mero motu, dismiss tlie writ.
[Xd. Note.— For otbar essaa. SM Couila. Dae
CocKTS 4=9383(1] — Cebtiob&bi — To Cn-
CCIT CODBT OF AFFEAI.S— iMPBOVIDENT-
LT Gbawted— Dismissal.
2. Certiorari to a Federal circuit court
of appeals, granted to review a judgment
tn a proceeding to recover damages conae-
Jnent upon tlie sinking of a ship in a coi-
ialon, will he dismiued where it subse-
quently transpires that a later final decree
in proceedings tor a limitation of the ahip-
owuer's liability was based upon an express
compromise agreement.
r. Nota.— For other eaaea, we* Oonrta, Dao.
0".
[No. loa.]
Argued December 18 and 10, 1916. Decidea
January 8, IS17.
,N WRIT of Certiorari to the United
State* Circuit Court of Appeals for
the Second Circuit to review a decree which
affirmed a decree in favor of libellant in a
suit to recover damages consequent upon
the sinking of a ship in a collision. Dia-
miased aa having been improvidentiy grant-
ed.
See same case below, 132 C. C. A. 201,
eiS Fed. SSg.
The faHs are stated In the opinion.
Messrs. Norman B. Beecher, Charlea
C. Burlingham, and Roacoe H. Hupper (or
petitioner.
Messrs, D. Roger Englar, J. Parker
KIrlln, Lawrence Kneeland, William H.
McGrann, and John U. Woolaey for reapond-
* Mr. Justice HcRejmolds delivered the?
opinion of tlte court:
The writ of certiorari was improvidentiy
granted and must be dismissed. We should
have denied the petition therefor If the facts
essential to an adequate appreciation of the
situation had then been brought to our at-
tention. Petitions of this character are at
the risk of the party making them, and
whenever. In the progress of the cause, facta
develop which, if discloaed on the appli-
cation, would have induced a refusal, the
court may, upon motion by a party, or ex
mero motu, dismiss tiie writ. United
States T. Rimer, 220 U. S. 547, S5 L. ed. 578,
SI Sup. Ct. Rep. 696; SUte, Maione, Frose-
eutor, T. Water Comrs. 30 N. J. L. 247,
la February, 1912, the Yang-Teze Insur-
ance Association, Limited, filed its libel in
the district court at New Yorlt against
Fumess, Withy, & Company, limited, own-
er of the Pomaron, to recover damages
consequent upon the sinking of the Alle-
ghany. A judgment for libellant, rendered
June 13, 1913, was afllrmed by the circuit
court of appeals in June, 1914; and on
October 6, 1914, the Pomarou'i owner insti-
tuted a proceeding in the same district
court for limitation of liability, and the
steps customary in such causes were regular-
ly taken. April 12, 1915, the petitioner pre-
sented an original application bare for a
writ of certiorari to bring up the Judgment
of the circuit court of appeals in the damage^
cause, and this was denied April 10th. ^
*It now appears that, on April 22, 191G, a*
final decree containing the following re-
citals was entered by the district court in
the limitation proceedings: "Whereas the
petitioner and all the claimants herein bava
compromised and settled the issues between
them, and in consideration of the said
compromise and aettlement it has been
agreed between the petitioner and all the
olalmanta:" (Tte terms follow.) "Whera-
Ic * KBT-NUKBBS U
.A^iOOglC
la
t7 SDFBEUS COURT EEFORTER.
Oct. Tnuf,
as, in coDBlderatlon of the said eomproinin
■nd aetUement, Uis several claimants herein
bj agTMment have fixed and sdjusted Uis
amounts of their seveTsl loneet consequent
on the said collision at the following snms,
to wit:" (The amounts are specified.)
'Vow on the snbjoiaed admisaionfl of cor-
rectness of Uie foregoing recitals and the
subjoined consents and waiTere of settle-
ment in respect of the entrj of this decree,
made bjr the proetora for all claimantE here-
in ... it is ordered, adjudged, and
decreed, etc."
The following, rigned by all the procton,
ti SDbjolQed to Utt decree; "The under-
signed proctors, for all the parties herein,
berebj admit the truth of the recitals con-
tained in the foregoing decree and consent
to the entry thereof, without further no-
«ce."
Petitioner's second application for certi-
orari, which was presented June 16, 191S,
and granted, contains these statsmenta;
"On May 10, IDU, as your petitioner is
informed, this court granted a writ of certi-
orari to the circuit court of appeala for the
ninth circuit upon the petition of Olaf Lie,
master of the Norwegian steamship Selja,
In a suit between said Olaf lie, mieter, etc.,
and the San Francisco A Portland Steam-
ship Oompany, etc."
"Your petitioner now renews its appli-
cation for eertlorarl for the reason that the
quest! ona presented by its petition are
idmtical with those presented by the peti-
tion of Olaf Lie. The principal question
Is whether, under this court's decision in
gThe Pennsylvania, 18 Wall. 126, 22 L. ed.
7148, B'prlTileged veasel, which, before a col-
lision with a burdened vessel, ported her
helm in violation (prima facie, at least) of
article 21 of the Intematiooal Regulations,
may be held responsible for the oollision,
"Subsequent to Uie decision of the circuit
court of appeals your petitioner instituted
proceedings for limitation of liabill^,
which, after the denial by this court of the
original petition, were prosecuted to a de-
cree under which payments were made to
the reepondents by the clerk of the distriot
court As these payments were made under
compulsion, they would be recoverable by
your petitioner In the event that this court
should reverse the deciaion of the aircuit
court of appeals."
In their memorandum opposing the second
petition for certiorari, counsel for the la-
Burance Association said: "The case is
settled and closed." And after referring to
steps taken in the limitation proceeding,
and quoting from the decree therein, dated
April Se, 1916, th«7 added: "All the claim-
ants have been paid the respective pro-
portions of the fund saoertalned to be due
them, and have executed receipts of dii-
eharge in the terma provided by the decree.
~ case Is, therefore, finally closed and set-
as between all the parties, and surh
settlementa have been made without any
reservation of rights sa the part of the
e were not advised by petition of June
IS, 1015, or memorandum opposing it, that
the final decree in the limitation proceedings
was based upon an expreaa compromiae
agreement; otiierwise the writ would not
have been allowed. At the hearing counsel
expressed different views concerning the
ultimate effect of Qiat decree and the rea-
sons for ita form; and they made it quite
plain that there was no purpose to mialead
ua Nevertheless, In the dreumstances, we
think it was incumbent upon counsel for
both sides to see that the petition and re-
ply thereto disclosed the real aituation.n
The overalght has 'resulted in unfortunate*
delay and needless constimption of time.
During the last term one hundred fifty-
four petitions for certiorari were presented
and acted upon. Because of recent legis-
lation—Act of September 0, 1910, chap. Hi,
SO Stat, at L. 72S — their nnmber hereafter
may greatly increase. Such petitions go
first to every member of the court for
examination, and are then separately con-
sidered In conference. This duty must be
promptly discharged. We are not aided by
oral arguments, and neeeoaarily rely in an
eapeelal way upon petitions, replies, and
supporting briefs. Unless these are care-
fully prepared, contain appropriate refer-
ence* to Uie record, and present with
ttvdied aoeuraoy, brevity, and deornes*
whatever is essential to ready and adequate
underetanding of points requiring our at-
tention, the rights of interested parties may
be prejudiced and the court will be impeded
In Its efforts properly to dispose of the
causes which constantly crowd Ita docket
Diamiased.
CZ41 IT. 9. lU)
JOHN WILLIAMS, Chief; Michael WU-
llama. Secretary, et al., Appts.,
OS Fee.
1. The only possible Immemorial ri^t
which the Pottawatomie Nation bad in the
country claimed as thmr own at the time
of the concluding of the Greeneville Treaty
of Peace of August 3, 1795 (7 Stat, at L.
Gl) , was that of occupancy.
IBa. Note.— For ottier casu, tee ledlaaa. Cent.
Dig. it 25, B3, 4ti; Dec. Die. ei=jlO.|
^9FM at^er ei
!• ttide A KKT-tnWBER In ell Kar-Numbered DlceaU ft IndoiM
A^iOOglC
191S.
WHIIAMS T. CBICAGa
14S
STIPULATIOKa— O0CU7A7I0T OB FEB.
2. Nothing more thu a right of con-
tinued occuponcj could be elaimed by the
IndianB under the Oreenerille Treaty ol
Peace of Aagnet 3, 1TB5 (T Btat at L. SI),
\tr which the United States stipuiated with
the PottavatomieH and other Indiana tiiat,
generally, in respect ot a large territory
vntward of a line paaaing through Ohio,
"^e Indian tribes who have a right to those
lands are quietly to enjoy them, hunting,
Slanting, and dwelling thereon so long as
ley please, without any molestation from
the United States; but when those tribes,
or any of them, shall be disposed to sell
their lands or any part of them, they are
to be sold only to Uie United States; and
ODtil such sale, the Uiiit«d States will pro-
tect aJl tbe said Indian tribes in the quiet
enjoyment of their lands against all citi-
cens of the United States and against all
other white persons who intrude upon the
same." When this right of occupancy was
aliandtmed, all i^al right or interest which
both tribe and its members had in tlu
territory came to an end.
[Ed. Not*.— rsr eUST osM^ ss* bUaasv Omt
Die 1 Hi DM), mg. ^svILl
Argned December 22, IQ18. Decided Janu-
ary 8, 1017.
APPXAL from the District Court of the
United BUtea for tlw Northern Dla-
faict of minois to review » decree dismiss-
ing the bill in a suit by Pottawatomie In-
diana to establish title to lands reclaimed
from Lake Michigan. Affirmed.
The tkcts are stated In the opinion.
Messrs. J. G. OroMlverK, and W. W. De
Armond for appellants.
Messrs. W. 8. HcMrton, Ohester E.
Cleveland, Samuel A. Ittelson, Bobert
Redfield, W. D. McKenzl^ and FraneU
CShanghnesey for appdleea.
s,
7 Mr. Jnatioe HORATnolds delivered the
opinion of the oourt;
The «Um set up In this cause is without
merit, and the amended bill was properly
dismissed, upon motion, for want ot equity.
Complainants are eight Pottawatomie In-
dians, members of the Poksgon Band, and
residents of Michigan. They undertake to
sue "on behalf of themselves and of all
members of the Fokagon Band of Pottawa-
tomie Indians, and of all other members
of the Pottawatomie Nation of Indians, if
any are entitled to Join herein with them,
and of all others, if any, who are entitled
to join herein with them."
Defendants are the eity at Chicago and
•ertiUn corporationa now oocnpying valn-
•hle lands within the geographies limits
of Illinois, wUdi have been redalmed from
Lake Michigan.
The bill prooeeds upon tlds theoryi ^
That from time immemorial, on Angnitn
3, 3705, and *thereaf ter, the Pottawatomie*
Indians were the owners and in possession
as a sovereign nation, as their country, of
large tracts of land around and along the
shores of Lake Michigan, south of a line
running from Milwaukee river, Wisconsin,
to Grand river, Michigan, and extending
"east and west of said two points and in-
eluding all of Lake Michigan which is
south of said line," — a stret«h of a hundred
That by the Treaty of Peace entered into
at Greenville, Ohio, August 3, 1TB6, the
United States relinqalshsd to the Pottawa-
tomie and other tribes their claims to In-
dian lands westward of a designated line
passing through the state of Ohio, and ly-
ing "northward of the River Ohio, eastward
ol the Mississippi, and westward and south-
ward of the Qreat I^kes and the waters
uniting them, aeoording to the boundary
line agreed on by the United States and the
King of Great Britain in the Treaty of
Peace made between them in the year of
17S3 [8 Stat, at L. 80]." [7 Stat at L. 61.]
That by biter treaties the Pottawatomie
NaUon reoeded to the United States all
such lands up to the shores of I^ke Michi-
gan, but those within the geographical lim-
its of Xliinois which were formerly beneath
the waters ot Lake Michigan, "whether re-
eUimed, aitifidally made, or now or for-
merly anhmerged . . . have ronalned and
still are the proper^ of these complainants
. . . and any attempts on the part of
at^ persons, flnna, and corporations to ap-
proprlat« same, or any part thereof, were
and are la violation of said treatiea and the
rights of these ecnnplainants."
Hat in 1883, with t^e azceptlon of the
Pokagon Band, la pursuance of a treaty
with the United SUtes, the Pottawatomie
Nation migrated west of the Mississippi
river, leaving that band In poasaseion, occu-
pation, Motrol, and sovereignty of so much
of the Nation's original country as re-
mained unceded. t-
That the United State* has refused tog
purchase the' reclaimed lands and conae-*
quently oomplainants are at liberty to oc-
cupy, aell, leasee or dispose of the same as
tlieir own In fee simple.
The bill praya tiiat defendanta he en-
joined from ooenpying or building upon the
specified land, or from asserting any claim,
title, or Interest therein; that they be re-
quired to pay a reaaonable oompensatlm
for Its use; and that the complainants'
title thereto ba quieted, established, and
confirmed.
M t**M ft KIT-NUKUR la eU S*)r-NMSb«r«< D
A^^OOglC
144
37 SUPBEMB COURT REFOBTEB.
Oct. Tsut
The only powlble ImmBmorial right which
the Pottawatomie Nation had in the eoun-
trj claimed a* their own in 1706 was that
»t occupancy. Jolmson t. U'lntoah,
Wheat. 643, 6 L. ed. 881. If, In any view. It
aver held poBseBBion of the property here
question, we know historically that thia was
Abandoned long itgo, and that for more
than a half century it ha« not even pre-
tended to occDpy either the Bhores or waters
of Lake Michigan within the oonfinca of
ntinoia.
By the Treaty of Oreenville the United
States itipulated with the Fottawatonties
and other Indiana that generally. In respect
of a large territory westward of a line psas-
ing throngh Ohio, "the Indian tribes who
haT« a right to those lands are quietly to
enjojr them, hunting, planting and dwelling
Uiereon ao long as they please, without any
molestation from the United Statu; but
when those tribes, or any of them, shall be
disposed to Bell their lands, or any part of
them, they ore to be aold only to the Unit«d
Stetes; and until such sale, the United
States will protect all the said Indian tribes
in the quiet enjoyment of their lands
against all eitiieus of the United States,
and against all other white persons who in-
trude upon the same." We tliink it en-
tirely clear that this treaty did not convey
a fee-simple title to the Indians; that under
it no tribe could claim more than the right
of continued occupancy; and that when
xtbis was abandoned, all legal right or inter-
SJest which both tribe and its members bod
* in the'territory came to an end. Johnson
T, M'Intoah, 8 Wheat. 643, 684, 680, 688, 6
L. ed. 881, 681, 682; Mitchel v. United
Btal«a, 9 Pet. 711, 745, 9 L. od. 283, 295;
United SUUs v. Cook, 19 Wall. 591, 592,
22 L. ed. 210, 211 ; Beecher v. Wetberby, 96
U. S. 617, 625, 24 L. ed. 440, 441.
It is unnecessary to consider other rea-
sons suggested by counsel in support of the
decree below.
Affirmed.
(241 Ti. S. m>
LAKE SHORE ft MICHIGAN SOUTHERN
RAILWAY COMPANY, Chicago, Indiana,
i, Sonthern Railroad Company, and Mich-
igan Central Sailroad Company, PIffa.
In Err..
CoHanTnTroNAL Law €:=291— Dm Fbo-
OEse or Law— Imposino Spzcial BtJa-
CEN ON Eailway Compamt.
I. The eipense ot bridging with their
tracks a drainage ditch to be constracted
in the public interest under the Indiana
Drainage Act of March 11, 1907, across a
sandy ridge lying between I*ke Michigan
and the Little Calumet river, may be cast
upon railway companies occupying such
ridge with their rights of way, without
denying the due process of law guaranteed
by U. S. Const. 14th Amend., although their
roads, being upon the top of the ridge, are
not within the area to be drained, do not
contribute to the formation of any overfiow,
and are not benefited by the proposed drain-
age, where their charters obligate them not
to Interfere with the free use, or unnecea-
sarily impair the usefulness of any stream,
watercourse, highway, or canal which theit
roads may croBs,-'-a duty which the high-
est state court interprets as a continuina
one, and as applicable to artificisl as weU
as natural watercoursea.
rEd. Nota.— For otbar cam, HS ConstltutloiiBl
Iaw. Cent. Dig. || SK-S!i: Dec. Dig. «=»^1.]
CONSTITUTIOKAL Law «=291— Dck Puo-
CESS OF IjAW— luPOBINO SPECIAL BOS-
DBN ON Bam. WAT Coup ANT.
2. The expense of taking out existing
piers and abutments of a railway bridge
and erecting new ones, msde necessary by
the deepening of a channel in tlie carrying
out of a proposed drainage Bysttm to be
constructed in the public interest under the
sanction of the Indiana Drainage Act of
March 11, 1907, may be cast upon the rail-
way company without denying the due proc-
ess oi law guaranteed by U. S. Const, 14th
Amend., although the present bridge and
abutments form no obstruction to the natu-
ral flow of the stream, where the company's
charter obligatee it not to interfere with
the free use, or unnecessarily impair the
usefulness of any stream or watercourse
which its road may cross, — a duty which
the highest state court interprets as a con-
tinuing one, and as applicable to artiScial
as well as natural watercoursea.
[Ed. Note.— For otber oaaei, see Constitutional
Law, Cant. DH. 11 870-878; Dec. Dig. i!J=»291.]
CoNsrmTTtOKAi, Law 1^=234 — Equal
Pbotection of the LAwa— Classifica-
tion —Railway Coufantbs.
3. Awarding to a county the damages
to bridges and highways to result from
carrying out a proposed drainage system
to be constructed in the public interest un-
der the sanction of the Indiana Drainage
Act of March 11, 1907, while casting upon
railway companies the cost of bridging gaps
to be made in their rights of way by the
proposed drain, and of rebuilding eicisting
abutments and piers of a railway bridgs
crossing a stream, the channel of which
will be deepened as a result of the con-
struction of tlie drainage system, does not
deny the railivay companies the equal pro-
tection of the UwB guaranteed by U. S.
Const. 14th Amend., where their charters
obligate tbem not to Interfere with the free
use, or unnecessarily impair the usefulness
of any stream, watercourse, highway, or
canal which thrir roads may cross, — a duty
which the highest state court interprets aa
IB If* same topis ft KET-NUUBER In aU Kar-Numbsred DlgMta * ladaus
v*^iOOglC
LAKE SHDBE k, MICHIGAN S. B. 00. t. CLOUGH.
14S
A Mmtinaliig one, and kb applicable to urtl-
fldal aa well u oatural watercoarMfl.
tBd. Note.— For other cmua, M* ConUItatlonal
tttw. Cut Sic I <H; Dec DK. «92S4.]
A^ued November 0 and 10, 1016. Decided
January 8, 1017.
IN ERROS to the Suprena Court of the
State of Indiana to review a judgment
which afflrmed a judgment of the Circait
Court of Porter County, in that Btate, modi-
Ijing, and oonflnning as modified, the re-
port of drainage commfsBlonera. Afflrmod.
Sm same caae- lielov, 1S2 Ind. ITS, 104
S. E. 0TB, lOB N. B. SOS.
The facte are stated in tha opinion.
MesBTi. John B. Peterson, J. A. Garlt,
Addiaon C. Harris, and Kobert J. Carj tor
plaintiffa in error,
Meoara. Jobn H. Olllett, Frank B. Pat-
toe, and Sandall W. Bum* for defendants
F Hr. Juatiee Pitney delivered the opinion
of the eourti
The Little Calumet river Haea in La
Porta county, Indiana, Sowe westerly acroaa
that and the adjoining eountiee of Porter
and I«ke into the state of niinoia, and,
tl after continuing Ita conrae for ooma dis-
Stance in that ■tate,*emptiea into the Big
Grand Calumst, which in tnm emptiei into
I«k« Michigan. In Indiana tba river runs
approximately parallel to the aoutb shore
of the Lalce. Intervening la a ridge of
sandy land about 1 mile in width, 30 feet
higher than the water level of tha lake,
and 10 test higher than the river. The
Lake Shore & Michigan Southern and the
Chicago, Indiana, i Southern Companies
own parallel railroad lines running along
this ridge. Neither of these roads crosses
the river in Indiana. The Michigan Cen-
tral Railroad crosses the river in that state
upon a steel bridge resting on abutments
and piers. The Calumet valley, in Porter
and Imke counties, is a mile or more in
width, lying between the ridge on the north
and low hills on the south. The watershed
drained by the river in Indiana is about
360 square miles. At times the river faila
to carry within its t>Bnlca all the watei', and
the overflows produce a marsh having an
area of 14,000 acres. Under An Act Con-
eeming Drainage, approved March II, 1007
(Act 1907, p. G08; S Buma'a Anno. Stat.
[Ind.] 1014, S 8140), application was made
l>y defendants in error, owners of lands af-
fected by the overflows, to the Porter cir-
enit court, for the establishment of a
proposed plan of drainage, Ite essential fea-
tures being the cutting ol an artificial ohan-
oel for a considerable distance along the
coarse of the Little Calumet and at auch a
gradient aa to reverse the direction of ita
Sow, and the conatructiou of an outlet for
its watera in the form of an open ditch
to run northwardly, cutting through the
sandy ridge and emptying into the Lake.
Puranant to the provisions of the act, the
petition was referred to the drainage com-
missioners. They made a report in favor
of the proposed plan, and assessed substan-
tial damages, in exceas of benefits. In favor
of the Chicago, Indiana, & Southern and
the Lake Shore k Michigan Southern Com-
panies with respect to tbeir rights of way.
No beneflta or damages were appraised to *
the Michigan Central. Under S < «' then
act, certain* landowners assessed with bene-
fits filed remonstraaees againat the awards
of damages to ths former two companies.
Each of the three oompaniee filed remon-
strances i the Lake Shore &■ Michigan South-
em and the Chicago, Indiana, A Southern
upon the ground that the damages awarded
to them were inadequate because the new
ditch, where it was to erasa their rights ol
way, would be TO feet wide at the bottom,
about 80 feet deep, and about 200 leet wide
at the top, and the expense of bridging it,
with the tracks, would in each instance be
upwards of S100,000; the Michigan Central,
because no damages were assessed in its
favor, although, by the deepening of the
channel of tha river at its croasing, it would
be required to take oat the present piers
and abutments and erect new ones to sup-
port the bridge, at a cost of about $60,000.
Upon the conmilssioner's report and the re-
monstrances the matter came on for hear-
i]^ before the circuit court, where findings
were made setting forth the necesaity for
the drainage, stating the plan in detail,
finding that It would be practicable to ac-
complish the proposed drainage without an
expense exceeding the aggregate bencfita;
that the propoaed work would benefit the
publlo health, would improve the public
highwaya in several townships speeifled, and
would be of publio utility. It was furUier
found that the Chicago, Indiana, & South-
ern and lAke Shore & Michigan Southern
Companies, whose roads were to be croased
by the main ditch, had no property other
than their right of way that would be af-
fected or interfered with or touched by the
drainage proceeding, and these companies
would not be damaged by the construction
of the proposed drain; and that at the
point where the ditch was to pass under
the bridge of the Michigan Central the nat-
ural channel of the stream would have to
be deepened, and this would ueceaaitate ths
rebuilding of the abutments and piers upon
which the bridge rested, but that this com-
u topic » KET-HUHBBR In aU Kar-Hunborad DIseita « Indeia*
A^iOOglC
Vr 8UFREUB COURT REPORTBB.
Oat. lEEit,
hpan; would neither be damaged Dor bene-
• flted'by the proposed drain. A motion for
« new trial haTing been oveimled, a judg-
ment was rendered confirming the report
ol the oommisaionerB as modified by the
oourt, and ordering that the propoeed work
of drainage be eatabliahed. The three com-
panieB appealed to the euprame court of
Indiana, where the judgment was affirmed
(182 Ind. 178, 104 N. E. 876. 105 N. E.
906), and thej bring the ease here upon
questions raised under the 14th Amendment
to the Federal Gonititution.
The principal contention of tha Lake
Shore & Michigan 8ontheni and the Chi-
cago, Indiana, & Southern Companies ie
that, BinM their railroads are not within
the area to be drained, and nnther contrib-
ute to the fomwtion of the marsh nor are
to be in an^ wise benefited by Its drainage,
their landa can be taken only through the
exercise of the power of eminent domain,
with appropriate compensation, and tbat a.
denial of such oompenaation is a taking of
their property without due prooem of law.
A right to compensation Is asserted In be-
half of the MiehigsD Central on the ground
that ita preaant bridge and abutments form
no obatruction to the natural flow of the
Uttle Calumet river.
It wiU be obaarred that none of tlie lands
of any plaintiff in error Is expropriated.
The damage they suffer Is confined to a
temporary inoouTenlence in the use of their
rights «f way pending tiie construction of
the drain, and the necessity for making
substantial expenditures of money in order
to pais their railroads over the new water-
course. But the record shows that each of
the companies was organized and bad its
exi<itence under the general laws of the
etate (or the incorporation of railroad aom-
panies, that is to say, an act approved May
11, 1H5Z, and amendments thereto (1 Ind.
RcT. Stat. 1852, p. 409: 8 Burns's Anno.'
mat. [Ind.] IBI*. 33 6176 et seq.}. By i
13 oF this act (as found in Burna, § 6196)
^ it is declared: "Every auch corporation
J^ shall poiaess the general powers, and be
* eubject'to the iiabiiitiea and restrictions
expressed in the special powers (oilowing:
. . . Firth: To construct its road upon
or across any stream of water, watercourse,
highway, railroad or canal, so as not to inter-
fi-re with the free use of the same, which
ttie route o( ita road shall intersect, in such
manner as to afford security for lite and
property; but tlie corporation shall restore
the stream or watercourse, road or high-
way, thus intersected, to its former state,
or in a sufficient manner not to unneeessa^
rily impair its usefulness or injure Its fran-
Concerning the duty thus Imposed upon
railroad companies with respect t« htghwar
crossings. It has beon held by the supreme
court of Indiana in a long line of cases
that the duty Is applicable not only to the
original construction of a railroad across
highways then in eziatenoe, bnt also where
highways are laid out and opened aeross a
railroad after its eoustructlon; that it ia
a continuing duty, requiring the railroad
to keep pace with the times, and the In-
crease of publie trarel, the change of meth-
ods and improvements of highways, and the
public desire for the increased ease and
convenience of the traveling public. Louis-
ville, N. A. ft C. R. Co. V. Smith, 91 Ind.
119, 121) Bransvlllo ft T. H. R. Co. v. Crist,
lie Ind. 448, 464, 2 L.RJk. 460, 9 Am. St.
Rep. 805, 19 N. E. 310i Chicago, I. 4 L.
R. Co. T. State, IGS Ind. 189, Iftl, OS N. H.
224; Chicago ft S. B. R. Co. v. State, 169
Ind. 237, 240, 64 N. B. 800; Baltimore ft
0. 8. W. R. Co. T. State, 159 Ind. BIO, 619,
05 N. E. 608; I^ke Erie ft W. R. Co. r.
Shelley, 163 Ind. 80, 41, 71 N. E. 161;
Southern Indiana R. Co. t. MoCarrell, 103
Ind. 409, 478, 71 N. B. 16«; Vandalia R
Co. V. State, 160 Ind. 819, 823, 117 Am.
St. Rep. 370, TO N. E. DSO; Cincinnati, I.
ft W. B. Co. T. Connersville, 170 Ind. 310,
388, 83 N. B. 503, affirmed by this oonrt
in 218 n. B. 336, 64 L. ed. 1060, 81 Sup.
Ct. Rep. 93, 80 Ann. Cas. 1200; New 7ork,
C. 4 St. L. R. Co. V. Rhodes, 171 Ind, 6«1,
626, 24 L.ILA.(N.8.) 122G, 86 N. E. S4D;
Pittsburgh, C. C. ft St. L. R. Co. v. Qregg,
181 Ind. 42, S3, 102 N. B. 901.
But In the Railroad Act streams, water-
courses, and oanals are mentioned along
with roads and highways. The terms em-^
ployed are broad enough to include artificialJJ
Watercourses, whether employed for trailia,*
for irrigation, or for drainage. And ac-
cordingly it has been held by the supreme
court of the state that, with respect to a
public ditch constructed under the Drsinage
Act of 1907, railroad companies are under
the same duty as with respect to highways,
and that the company acquires its right
of way subject to the right o( the state to
extend such ditches across It, without com-
pensation to the company for the inter-
ruption and Inconvenience, if any, or for
increased expense or risk, or for the cost of
accommodating the rsilroad line to the
crossing. Chicago ft E. R. Co. v. Ludding-
ton, 175 Ind. 35, 38-40, 91 N. E. 930, 03
N. E. 273; Wabaeh R. Co. v. Jackson, 170
Ind. 487, 490, 96 K. E. 311, 08 N. E. 400.
No question is made but that the settled
law of the state is as we have stated it,
and that the chartar obligations of plain-
tiffs in error are auch as we have defined.
An attempt is made to distinguish the Lud-
dington Case upon the ground that the rail-
.A^iOOglC
U18.
LAKX 6H0BX k BQCHIGAN 8. B. CO. t. CWUQS.
liT
road thera In ^nefltion mw within tlie drftin-
mge district, and the JKekaoti Caoe upon the
ground that the railroad had built an em-
bankment acrois a valley without provid-
ing mEelent enlrerta to earrj oS the water
of tbe creek in time of heav; rains. It Is
contended that aiace, in Ota present Ga«e,
the Lake Shore A Michigan Eloutbem and
tlie Chicago, Indiana, & Southern Boada
lie npon th« top of the ridge between the
Little Calumet river and Lake Michigan,
and do not in any wIm cause or contribute
to the marih, and are not benefited by the
proposed drainage, they cannot lawfully be
included within the drainage dirtriet. And
ma to the Michigan Central, It la argued
tiiat, since its bridge aa heretofore cou-
rtnuted does not obstruct the natural flow
of the atreatn. It cannot be subjected to
any part of the Mit of the drainage sya-
tem. These distluctions, and a t«ferenca
made In the same connection to Mj'Iea
Salt Oo. T. Iberia ft St. M. Drainage
Dirt. £39 V. S. 478, 60 li. ed. 392, LJl.A.
f^—, — , Sn Sup. Ct, Rep. 204, are aside
J|frMn the real point of the case. The
* state is not proposing to *assess plaln-
tlffa In error for benefits with respect
to the drainage project, nor to tax them
for ita support It Is requiring than merely
ta bear the eort of constructing crouings
for their railroad lines over the proposed
new ehannel and outlet, "so as not to in-
terfn^ with the free use of the same," and
"in a sufficient manner not to unnecessarily
Impair tta nsefulueaa.'* With respect to
this duty, if the state has a right to Im-
poae it in aid of the drainage project, the
remoteness or proximity of the area to be
drained ia wht^ly immaterial.
In view of the obllgationa asaomed by the
leapeutlve companies when they accepted
their franchises at the hands of the state,
it is very clear that the state may exercise
its police power In laying out an artlBdal
watercourse across the rights of way with-
out making compensation to the companies
for the inconvenlenea and expense to which
they are thereby subjected, unless, indeed.
It ba made to appear that the power Is be-
ing exerted arbitrarily or wantonly, or for
private as distinguished from public bene-
fit, or otherwise in disregard of the funda-
mental rights of the companies concerned,
In either of which cases there would be an
abuse rather than on exercise of the power,
■ad the project could not lawfully be car-
ried out Bgainrt their opposition, with or
without compensation.
In Chicago, B. ft Q. R. Oo. v. Chicago,
1« n. a 22S, 2fi2, 41 L. ed. S79, S&O, IT
Sup. Ct. B^. SSI, where the city was coa-
demwlng oerbUn parts of the right of way
of the railroad for the opening and widen-
ing of a street across it, and only a
compensation was awarded, it was oontend-
ed among other things that the company
was deprived of its property without due
process of law because. In ascertaining the
compensation, the cost of constructing gates
and a tower for operating them, planking
the crossing, llling between the rails, put-
ting In an extra rail, and the annual es-g,
peuse of depreciations, maintenance, etc.,JJ
were disr^arded. * But the court held that*
since tlie company took its charter aud laid
its tracks subject to the condition that their
use might be regulated by the state so as
to Insnrs the public safety, Qie exercise of
that authority by the state was not sub-
ject to a condition that the company should
be indemnified for the damage resulting
from its exercise. In Chicago, B. ft Q. B.
Co. V. Illinois, 200 tl. a 601, 092, 695,
60 L. ed. 506, 605, 010, 2« Sup. Ct. Rep.
341, 4 Ann. Cas. IITO, a ^an of drainage
required the enlarging and deepening of ft
natural watercourse over which the rail-
way crossed by a bridge, and the plan oould
Dot Im carried out without the removal of
certain timbers and stones placed in the
creek by the company when it constructed
the foundation for the bridge, and these
could not be removed without destroying
the foundation and rendering it necessary
to construct another bridge with an open-
ing wide enough to carry the increased flow
of the oreek under the drainage system
adopted. Hie court held it to be the duty of
the railway oompany at its own expense to
rnnove from the creek the bridge, culvert,
timbers, and stones placed there by it, and
at ita own expense to erect and maintain a
new bridge to conform to the regulation es-
tablished by the drainage commissioners
under the authority of the state, and that
the enforcement of such a requirement
would not amount to a taking of private
property for public use within the meaning
of the Constitution. In Cincinnati, I. ft W.
R. Co. V. Connersville, 218 U. S. 33B, 344,
Gt L. ed. lOtfO, 1004, 31 Sup. Ct. Bep.
93, 20 Ann. Cos. 1203, it was held that
since the rallwi^ company accepted its
franchise from the state subject to the con-
dition that it would eonfarm, at ita own
expense, to any regnlatlowis not arbitrary
in their character as to the opening or use
of streets which had for their object the
safety of the public or the promotion of
the public convenience, the company had no
right to be reimbursed for the s^oneya
neceasarlly expended In constructing aj
bridge over a public street laid out throKghS
its embankment. In Chicago, M,*ft St. P.*
B. Co. V. Minneapolis, £32 U. S. 430, 68
h. ed. 071, 84 Sup. Ct. Bep. 400, the soma
doctrine was implied, and held to sustain
,A_.oogle
149
37 STJPHEME COURT REPOBTER.
the refusal of compenaatlou for the coat of i
constructing &ad maintaining a. railroad
bridge across a gap in the right of way
made by the conatmction, under the author-
ity of the state, of a canal to unite two
lakes that formed a part of a public park.
It requires no argument to show that the
establishment of a system of public drain-
age in the interest of the health and gen-
eral welfare of the people is likewise an ob-
ject that legitimately iiivokes the exercise of
the police power of the state. New Orleans
Gaslight Co. v. Drainage Commiaaion, 197
U. S. 433, 4Ga, 49 L. ed. 631. 834, 25 Sup.
Ct. Rep. 471; Chicago, B. k Q. R. Co. t.
Illinois, 200 U. S. 661, 5Q2, SO L. ed. 608,
60S, 26 Sup. Ct. Rep. 341, 4 Ann. Cas.
1175; Atlantic Coaat Line R. Co. t. Golds-
boro, 232 U. S. 548, GGI, 68 L. ed. 721,
727, 34 Sup. Ct. Rep. 364.
In tbe present case it is not and could
not reasonably be contended that the state
la exerciaing its power arbitrarily, or wan-
tonly, or for a private benefit. It cannot be
doubted that the general object of the Drain-
age Act of 1007 is to suhserra the public
Interest. It« Zd section require* that pe-
titioners for the eatablishment of a drain-
age project ahall declare their opiDJon "that
the public health will be Improved, or that
one or more public highwaya of the county,
or street or atreets of, or within the cor-
porate limits of a city or town, will be bene-
fited by the propoaed drainage, or that the
propoaed work will be of public utility."
[3 Buma's Anno. Stat. (Ind.) 1914, g 6141,
p. 131.] By the 3d section tbe commiaaion-
ere are required to conaider whether this
is true, and, if not, tbe petition ia to be
diamiased; and by g 4 it is made a sufficient
ground of remonatrance, resulting, if sus-
tained, in the diamiasal of the proceedings,
"tbat the proposed work will neither im-
prove tbe public health, nor benefit any
public highway of the county, nor be of
public utility." As to the particular
„ project under consideration, it is specilically
Sfound, aa we have seen, that a public bene-
« fifwill result. In the Luddington Caae, 175
Ind, 38, 91 N. E. 939, 03 N. E. 273, it
was expressly declared that ditches eatab-
]iahed under thia taw are public ditchea of
tbe atate, whose construction and repair
are matters of public or state concern.
There exieta, therefore, no basis for holding
that, by the judgment under review, the
property of any of the plaintilTa in error
ia taken without due proceaa of law with-
in the meaning of the 14th Amendment.
The "equal protection" clauae of the same
Amendment is invoked upon the ground
that whcreus by § 3 of the Drainage Act
(lAwa 1907, p, 613; 3 Burns's Anno.
But. [Ind.] 1914, g 6142, p. 135) the
Ooi. TWBM,
are reqidred to "a^seos tha
benefit* or damages as the case may ha
to each separate tract of land to be af-
fected thereby, and to easements held by
railway or other corporations, a* well a*
to cities, towns, or other public or privata
corporation*, including any land, rights,
easement* or water power, injurioualy or
beneficially affected," there i* discrimination
in the judgment, in that an award ia made
in favor of Lake county foe damage to
bridgea and highwaya, while compensation
to plaintiffs in error for damage* to their
respective roads, and to tiie Michigan Cen-
tral for damages to its bridge, is denied.
But, a* ha* been held many times, the
"equal protection" clause doe* not deprive
tbe state* of power to resort to classifica-
tion for purposes of legislation; and unlea*
it appear* that a atate law as construed
and applied by the state court of last resort
base* discriminations upon arbitrary dis-
tinctions, we cannot judicially declare that
the state has refused to give equal protec-
tion of the laws. Singer Sewing Mach. Co.
V. Brickell, 233 U. S. 304, 31S, 66 L. ed.
974, 979, 34 Sup. Ct. Rep. 493; Ulsaouri,
K. 4 T. E. Co. v. Cade, 233 U. S. 642, B50,
58 L. ed. 113S, 113S, 34 Sup, Ct. Rep. 678.
In the present case the supreme court of
Indiana in effect held that g 3 of the Drain'
age Act did not entitle a railway company
to damages in respect of its right of way
which was not affected by tbe proposed^
drainage in any manner otherwise than, hj9
acceptance of its charter,*it had agreed to*
submit to. There is a very evident and aub-
stantial basis for a distinction that denie*
compensation to a private corporation in
such a caae, while at tho same time allow-
ing compensation to a public corporation
that ha* made no such agreement.
Judgment affirmed.
(Ml V. 8. tM)
JESSE L. HARNAQB and Delokee Qa* A
Oil Company, Plffe. in Err,
ANNIE M. MARTIN and Roth, Argue, ft
Maire Brothers Oil Company.
Indians 4=s13— ALi.oTMENTa — Conclc-
8IVENRS8 or DzcisiON or L&kd Di-
PABTMENT.
I. A decision of tiie Land Department
that a contestant was the owner of the im<
provements, within the meaning of a provi-
sion of the Cherokee Allotment Act of July
1, 1902 (32 Stat, at L. 716, chap. 1376),
S 11, giving such owner a preferential right
to the allotnieot, is binding on the courts
unless there is no evidence to support it,
or it was otherwise the result of some er-
ror of law on the part of the officer of *ueli
Department,
[Ed. Note,— For otber cstea. SM Indlaaa, Osnt.
DLk, I 30; Dec Di*. «=>I3.]
II topic A KEV-NUHBER in all Ker-Numband DIgasts * Indi
*^K~)OgiC
lOlA.
HARNAGB t. MARTIN.
149
IlfDUNB ^3l3— IltDIAK AU-OTMEHTS —
OWPJEBSTIIP Ot lUPBOVKllBNTB— PBEFBE-
KCmAI. BlSHT.
2. Ad a^eement by which the h«ad of
»n IndUa familf ga,n her gruiddAiiKhter
the right Ut lelect aome portion of tha noma
place aa her kUotment m»,j fairly be held
equiTalent to givLDg her a mlBcieiit intereat
in improTements thereon to aupport a pre-
that the land maj be aelected by each
lottee ao as to include his improTcmenta.
[Bd. Note.~For otber uxa, ■•• Indians, Cant
Big. I SO; Dec. Dig. «=)13.]
Indians ^=13 — iRSiAif Aixonxim —
SmFLtlS IiANDS,
3. The prohibition In the Cherokee Al-
lotment Act of July 1, 1B02 (32 SUt. at L.
T16, chap. 1375), | IB, agaiott the holding
of posHeaaion by a member of the trllM by
htmaelf or through another of landa In «c-
cesB of 110 acres of average allottable lands
for himself, and a like amount for each of
his minor children, does not apply to land
not in excess of that amount which the
head of an Indian family, ia addition ta>
her own holdings, held for her adult grand-
daughter, hersdf a mcmlier of the trib^
since, by the very terms of such section, the
grandda'ughter could hold posaeasion by h(^
self, or through another, of lands not ex-
cepding in value 110 aerea of averarc al-
lottable lands, and thus could hold the landi
by her pTsndmother as ber agent.
'{Bd. Note,— F^ir otber casa^ IM iDdlsns. Cmt
Dig. I 30: Dec DIs. a»13.]
Indians «=9l3 — Indian ALLOTWEnTa —
llfPBOVEMEHTS— Prkixbbntiai. Riqbt.
4. There ia nothing iueoneistentivith the
policy ot the Cherokee allotment act of July
1, 1902 (32 Stat, at L. 716, chap. 1375),
In giving to a tribal member, aa owner of a
aubatantial equitable interest in the im-
provementa upon a tract of land when the
act waa passed, a preferential right to
aelect that as her allotment.
[Ed. Note.—For otbfr cases, see Indians. C«nL
Dfg. f 30: Deo. Dig. .^=13.1
Indians ®:=>20— Lands— Judiciai. Saix—
Bsa Judicata— Parties.
6, Proceedings resulting In a judicial
aale of improvements upon certain Cherokee
allotments as being surplua holdings can
have no effect against an Indian not a party,
where they were taken long after her vp-
plicatioD for allotment.
SBd. Note.— Tot ethtr caae^ aa* Indiana, Oaat
^ I U : Dee. Dig. «s».]
[No. 112.]
Argued December 19, 1918. Decided Janu-
ary B, 191T.
IN ERSOR to the Supreme Court of the
State of Oklahoma to review a decree
which 'afBrmed a decree of the District
Court of Waahington County, In that state,
In favor of defendants in a ault to charp
the legal title to an Indian nllotment with
a trmat in plaintiff's favor. AfBrmed,
e same cue below, 40 OkU. 341, 1S«
Pac. 154.
The facts are stated in the opinion.
Messrs. James A. Teasey, IJtiVd A. Row-
land, and Jere P. O'Mear* for plaintiffa in
Mr. Robert J. Boone for defendanta la
Mr, Justiee Pitney delivered the opinion?
of the eonrti
This waa an equity action Involving the
right to an allotment of land in the Chero-
kee Nation, containing alwut 77 ncree. The
plaintiff in error Haraage and the defend-
ant in error Martin axe members of the
Cherokee Tribe, and rival claimants to the
allotment. The other parties are two oil
companies that claim under Harnage and
Martin respectively, and admittedly have no
higher rights than theira. Ha,mage brought
an action in one ot the district courts ot
Oklahoma for the purpose of charging the
legal title to the landa in question, which
stood in Mra. Martin, with a tnut in his
favor, upon the ground that the Secretary of
the Interior, through a gross miaapprehen-
aion of the facta or an error of law, bad
awarded the land to her, when, under the
provisions of the Cherokee Agreement and
other acta of Congress pertaining to the
subject, it abould have been awarded to
him.
By the Agreement (Act of July 1, 1002,
chap, 1375, 32 Stat, at L. 716, 717) it waa
provided as follows:
"See, 11. There shall be allotted b; the
Commisilon to the Five Civilized Tribes and
to each eltlien of the Cherokee Tribe, . . .«
land equal in value to one hundred and ten£
acrea of the average allottable lands of'thi*
Cherokee Nation, to conform aa nearly aa
may be to the arena and boundaries estab-
lished by the government survey, which land
may be selected by each allottee to aa to in>
elude his improvement*.
"Sec. IS. It shall be unlawful after ninety
days after the ratification of tliie act by the
Cherokeea, for any member of the Cherokee
Tribe to inrloee or hold possession of, in any
manner, by himself or through another,
directly or Indirectly, more lands in value
than that of one hundred and ten acres of
average allottable landa of the Cherokee
Nation, either for himself or for his wife, or
for each of his minor children. If members
of said tribe; and any member of said trit>e
found in such possession of landa, or hav-
ing the same in any manner inclosed, after
the expiration of ninety days after the date
of the ratification of this set shall be deemed
guilty of a misdemeanor."
By Si 74 and 76 (p, 727) the act waa to
le * KBr-NUHBBR In all Ker-Numbered DIgwta A Indaiea
IM
S7 SUPRBMK COURT KEPORTSB.
Oct. :
take effect upon ratlfle«.tIoii by » ni&JDrity
of the legal voters of the Nation. It wu
thus rfttifled oa August 7, 1B02.
On iSa.j 13, 1904, Harnage made appli-
cation to the Dawes CommiBiion to have tbe
land in controversy allotted to him, and hU
application was granted. Thirteen ds;j
later Mrs. MarUn made a similar appli-
cation, and tliia waa refused on the ground
of the prior allotment to Hamage; there-
upon she instituted a contest before the
oonunlsslon egainst the Hamage allotment.
It came to trial before the Dawes Commis-
sioner In September, 1007, and resulted In
a decision in favor of Mrs. Martin. Uarn-
aga appealed to the Commlsaioner of Indian
Affairs, wbo rendered a like decision, and
this, on appeal to the Seeretarj of the In-
tarior, was affirmed; and deeilB tor the land
In contest were made to Mrs. Martin pnr-
anant to the act.
Upon the trial of the eqaitj case plaintiffs
a in error Introduced a eertifled transcript of
JJ all proceedings and evidence In the conteat
* proceeding, and this was the only^evidence
offered that waa at all pertinent to the ques-
tion we have to dedde. Defendants in error
demurred to the evidence, and the demnrrer
was sustained and the bill of complaint dis-
missed. This Judgment was afBrmed by
the supreme eovrt of Oklahoma (<0 Okla.
941, ise Pae. IH).
Hamags having admittedly filed first
apon the land in controversj, Mrs. Martin
waa entitled to prevail in tbe contest only
by showing that at the time of tbe Hamsge
lUiBg she was the owner of the Improve-
menta, within tb» meaning of S 11 of the
Agreement, and for that reason entitled,
nnder the prorlalons of the same section,
to take this particular land for her allot-
ment. It was found hj the Commissioner
to the Five CivUizad Tribea who heard the
contest, and by the CommlBsioner of Indian
Affairs and the Secretary of the Interior
wbo heard tbe successive appeals, that Mrs.
Martin waa the owner of the improvements;
and tiie only question for our determination
ia whether thia decision was without evi
denee to support it, or was otherwise
the result of some error of law on the part
of those officers. Ross v. Stewart, 227 U.
B. 830, 63B, C7 L. ed. CZfl, esg, 33 Bup. Ct.
Rep. 345; Roas v. Day, 232 U. S. 110, 117,
58 L. ed. 028, 030, 34 Sup. Ct. Rep. 233;
Johnaon t. Riddle, !40 U. S. 407, 474, 00
L. ed. 7G2, 7sa, 36 Sup. Ct. Rep. 393.
Each of tbe departmental decisions waa
made in writing, but the findings are aome-
what informal, each appeal having resulted
in adding something to what had been found
before, — a fact not surprising, since the
testimony Is very voluminous, occupying
more than SOO pagea of the printed tran-
script in this court. Tha following is an
outline of the facts found i Mrs. Martin
the granddaui^ter of an Indian woman
known as Hary Andenon, or Ansou, after-
wards Mary Thursday, and was the daugh-
ter of William Bob Anaon, otherwise knotvn
as Wild BIIL She had a brother known as
Sam BcAi. All these parties were Delaware
Indians, adopted into the Cherokee Tribe,
and as such were entitled to certain Dela-s
ware payments from the government. Dur-g
Mrs. Martin's childhood, she and* her*
brother and their parents resided with the
grandmother, who waa the head of the
family, upon an Improved tra«t of land
known as the "old home place," located
south and west of the laud in controversy.
WUd Bill died In 1889, and his wife about
the lame time; and, after this, such pay-
ments as were due to Wild Bill as a Dela-
I were paid to Mary Thursday, and also
certain small payments that were due to the
eonteatant. About the year I89I, contest-
ant, then a child of about ten years, was re-
moved by force or undue influence to the
home of a Delaware named Frenchman, and
kept there until the Delaware payments of
1891 and 1803, averaging over $500 each,
' paid to tbe members of tbe tribe. The
payments due to eonteatant were collected
by Frenchman, who appropriated them to
hit own use, this having been his object in
assuming control over the child. Later she
was sent away to sdiool at the expense of
ths government, and afterwarda returned to
the vicinity of her home, where she support-
ed herself by her labor. In November, 1898,
when she was about eighteen years of age,
she was married to Qeorge Martin, and short-
ly after this she and her husband visited
Mary lliuraday, and the latter then aacer-
tidned that oontaatant bad not secured any
land for future allotment. (This was aft«T
Uie establishment of the Dawes Commission,
and after tbe passage of the Curtis Act of
June 28, 1898 [ebap. G17, S 11, 30 Stat, at L.
4BS-497], when the allotment of the Indian
lands in the then territory was in contem-
plation ; Woodward v. De Graffenried, 23S U.
S. 2B4, 291, 69 L. ed. 1310, 131T, 35 Sup. Ct
Rep. 704.) During contestant's absenca the
original home place had been added to by
the purchase In 1303 of the improvemeuta on
about SO acres of land lying immediately
north of it for ^00, the purchase price hav-
ing been paid by Mary Thursday and Sam
Bob from ths proceeds of the Delaware pay-
ments, and the bill of sale for the improve-
ments having been mads to Uiem. "She m-r*
tire place then comprised about 200 acres ofj|
tmprovsmenta, Mra'^ursday, recognidng*
an indebtedness to contestant on account
of having recelTcd Delaware payments due
to her and to her father, and there beln~
,A_.OOglC
1910.
HABNAQB T. UABTIN.
Ul
■nffideot land for herself ftnd Sua Bob and
contestant, gavs to coatMtant a right to
■elect the laud in coDtroversr, or at lenat to
take aa aa allotment some portion of tho
home place, with the underetanding tiiat
■he, Maij ThurwUy, would hold it until the
time for allotment, which was done. Prom
the time of the making of this arrangement
Mra. Martin waa Tecogniced hj her grand-
mother and her brother as having an inter-
est in the place; that ia, ■ right to share
in the improrements to the extent neceHaary
to entitle her to an allotment out of the
laud, notwithstanding her involnntarf
■Iwenae from home during her childhood.
It was contended that Marj Thursday, at
the time of the tranaaotion referred to, was
of unsound mind, hut this was overruled as
unsupported by the eridence.
It appears that before Mrs. Martin filed
her allotment selection Mrs. Thursday bad
located her own allotment in the southern
part of the home place, and Sam Bob had
locateii liJH in tlit nurtlii^m iiiirt, and the
land lying between these ^as left for Mrs.
Martin. Tliis, In view of the previous agree,
tnent of Jlra. Thursdny, was found fo he
equivalent to a transfer to Jlra, Martin of
the Bpccific improvcmenta upon the inter-
vening tract. The Department found that
after the northern and southern portions of
the farm were merged into one place there
was a recogniied community of interest
among; the members of the family growing
out of their relationship and the commin-
gling of their funds, whereby Mrs. Blartin
had an interest in every part of the family
holdings, and that wiien Sam Bob elected to
talie liie allotment in the northern part of
the plaes and Mary Thursday to take hers
in the southern part they impliedly re-
linquished to the contestant as the remoin-
N ins member of the family their interest fn
J|tlie tract of land lying between,
* ■ An agreement that Mrs. Martin should
have a part of the Thursday place for her
altotnient might fairly be held to be equiva-
lent to giving her a sudicient interest In the
improremcnta to support a preferential
rigiit to the allotment, for, hy Cherokee
law, oirncrshlp of iraprovementa entitled
the owner to possession of the land; and in
9 11 of the Curtis Act there was a provido
"that whenever it shall appear that any
member of a Tribe is in posaessiDn of InndB,
hla allotment may be made out of the landv
in his poBscssion, including his home, if tiie
bolder so desires." The same general policy
was afterwards csrried into g 11 of the
Cherokee Agreement, with more particulnr
recognition of ownerahlp of the Improvc-
menta as the declsiTS point.
The contention that the findings were un-
anpported by evidence cannot be sustained.
The erldenee !■ to Kmw •ztcait dreum-
stantial, but It Is sufficient. It was oontra<
dieted by Wallace Thursday, the husband
of Mary, but his unreliability was clearly
shown.
is argued that, under % 18 of the Agree-
ment, Mrs. Thursday's possession, after No-
vember 5 of that year (ninety days aftar
data of Tatiflcation),of all lands hi excess of
the value of 110 acres of average allottabl'!
lands for herself and a llks amount for each
ei minor children. If any, was unlawful,
and that because Mrs. Martin reached the
age of twenty-one before the ratification of
the Agreement, Mrs. Thursday eould not
lawfully hold for her any part of the sur-
plus lands. This is based upon a clear
misinterpretation of S IS, the very terms of
which permitt«d Mrs. Martin, as a member
of the Cherokee Tribe, to hold possession,
by herself or "through another," of lands
not exceeding in value 110 acres of average
allottable lands, and thus authorized her to
hold the lands by her grandmother aa her
There Is no question that the improv«-M
ments upon the allotment In question, sem
uell as upon the adjoining land8,*wcre sub-
stantial in value, and were such as, under
trilial law, carried a riglit of occupancy,
and such as were rccagni7.ed in % 11 of the
Curtis Act and g 11 of the Agreement,
e Is nothing inconsistent witli the
policy of the latter act in giving to Mrs.
Martin, as owner of a substantial equitahls
interest in the improvements that were upon
tlie tract in question when the act was
passed, a preferential right to select that
ler allotment. The policy was to givs
recognition to the estabti sited laws and
ustoms of the Cherokees (Const, art. I., J
!i Laws 181)2, £9 708,761. 702), under which
itiiens of the Nation might and did In-
close and improve portions of their common
domain and thereby establish a prior right
to the possession of those lands, trnnsfer-
abte to another cltheen by a sale of the im-
provements. The Agreement substituted a
system of allotments with ownership of the
soil in the place of a mere possessory right,
and its provisions were intended to limit tha
quantity of land that might be held by or
for a single citizen, but they recognized the
superior equity of an owupt of improve-
ments over that of a citizen who had no
such ownership, and the precise character
of the ownership was of little consequence
as against a party having none at all.
Among the records that were introduced
in evidence in the equity suit was an appll-
eation made in the year 1905 to the Com-
missioner to the Five Civilized Tribes by
Wallace Thursday, acting as guardian of
the person and estate of Sam Boh, a minor
,A_^OOglC
1S8
87 SUPREMB COUBT EEPOETER.
Oct. Txuc»
■nd of Mftrj Thuridaf, an insane person, for
tha isle of Uie improTementa upon the allot-
ment in oontroveiBf ai surplus holdings of
those Indians, and certain orders made in
the ssms year by the United States court for
the northern district of the Indian Territory
upon the application of Wallace Thursday,
authorizing him in the same capacitj to sell
the improvements to Uarnsge. Bnt as
ft Mrs. Martin was not a party to these pro-
■ eeedings, and they were taken long atte^the
filing of her application for allotment, they
ean have no effect as against her.
Since we are convinced that tha decision
of the Supreme Court of Oklahoma depriTed
pliintifTs in error of no right to which they
were entitled under the laws of the United
States, it results that the Judgment must be
and it is affirmed.
(2U U. S. »U
JOSIB C. BAKER, Individually and as Ad-
ministratrix of Charlea Baker, Deceased,
Plfl-. is Err,
BAKER, ECCLES, ft COMPANY and Au-
gusta H. Baker, Individually and as Ad-
ministratrix of Charter Baker, Deceased.
ConBTrnTTioNAL Law «=>!tOS(l) — Jnno-
KENT «=sS18{2) — Or SlffTEB Statb —
AoAiKffT Nonresident — Full Faith
AND Cbidit^-Duc Pbocebs of Law.
The asserted right of the mother of
an inlestete to share as distributee In the
personal property situate in the state of
the mother's residence, such as shares of
stock in a corporation of that state, having
no situs outside of its own state, and a
claim of indebtedness against tha same cor-
poration, cannot, consistently with due proc-
ess of Ian, be adjudicated adversely by
decrees of courts of another state, adjudg-
ing that the decedent was domiciled there
and that his widow was the sole distributee,
where those courts acquired no jurisdiction
over Oie person of the mother or over the
corporation, either by service of process
wiUiin tlie state or by appearance, and such
decrees are, therefore, not entitled, by vir-
tue of the full faith and credit provisions
of U. S. Const srt, 4, S 1, and U. S. Rev,
Stat. I 905,> to extraterritorial recognition
so far OS tbey affect the owner^ip of the
property In question.
[Kd. Note.— For olber csbbs, sat CosBtltutlonal
F, CeaL D[g. H 929. 930; Dm. DEg.
Sment, n*nt ™» ti -""n i...*-
*s>818(i).]
Judgment, CaoL Dig. j| IWO-IMS;
[No. IIB.]
Argued December 19, 1016. Decided Janu-
ary B, 1017.
IN ERROR to the Court of Appeals of the
State of Kentucky to review a judgment
which directed the entry of a judfnnent la the
Ctrenit Court of McCrac';en County, in that
state, determining the domidl of an intes-
tate and the distribution of his personal
estate situate within that state. Affirmed.
See same case below, 162 Ky. ftB3, L.R-A.
1017C, ITI, 173 S. W. 109.
The facts are stated in the opinion.
Uesars. John A. FlUa and £. W. Rosa
tor plaintiff in error.
Uesars. Charles K. Vheelcr, Daniel
Heniy Hughes, and James Quthri« Wheeler
for defendants in error. ^
Ur. Justice Pitney dslifered tlie opinion*
of liio court:
The Federal question presented In this
record is whether tha court of appeals of
Kentucky gave such faith and credit to
certain judicial proceedings of the state
of Tennessee as were required by art. 4,
S 1, of the Constitution, and the act of
Congress passed in pursuance thereof {Act
of May 26, ITW, chap. 11, 1 Stat, at L.
122, Rev. Stat. ! 005, Comp. Stat. 1913,
S 151S).
The facts are as follows: Charles Baker
died in September, 1012, the owner of oer-
tain real and perHonal property in H«rdln
county, Tennessee, and of 270 shares of stoeic
of Bslcer, Eecles, St Company, a Kentucky
corporation, of the par value of $27,000,
and a claim of several thousand dollars
against that corporation for surplus profits.
He left a widow, Josie C. Baker, now plain-
tiff in error, and a mother, Augusta H.
Baker, one of the defendants in error. H«
appears to have left no children or de-
scendants, nor any considerable indebted-
ness, and the personal estate, if distribut-
able according to the laws of Tennessee,
would go entirely to tbe widow; If dis-
tributable according to the laws of Ken-
tucky, it would go one half to the widow,
the other bait to 'the mother. He pUc«
of his domicil, admittedly determinative ofn
the law of distribution, was in controversy.S
Shortly after bis death the widow applied*
to the county court of Hardin county, Tsn*
nessee, for letters of adminiatrstion. The
proceedings were ex parte, and her appli-
cation was granted, tbe order ot the court
appointing her administratrix reciting that
at the time of bis death tbe residence ot
Charles Baker was in that county. After-
wards, and in December, 1012. the widow
presented to the same court a settlement of
her accounts ss administrstrix, and an order
was made reciting that it appeared from
proof that Charles Baker died intestate,
and at the time of his death was a reai-
dent of Hardin county, Tennessee, and that
he left no children or descendants ot suoh
surviving, but left surviving his widow, the
said Josie C. Baker, and under the laws of
Tennessee slic, as widow, was entitled to
'TWCTgic
IBIS.
BAXEB T. BAKER, ECCLB8. * CO.
1S3
«J1 of th« mrplaa peraanal propertf; where-
upon it wu ordered that iha, u adminis-
-tnttrix, tranBfer uid deliver to herself, ta
-the iridow of the deceued, all of the per-
■oul estate in her poeieiuon, including the
■took in the Kentnckj corpoTati<
-certificate* for which the held. Suhsequent-
ij, and on December 28, 1012, the widow,
inidividuRllf and as administratrix, filed in
ihe chancery conrt of Hardin county, Ten-
nessee, her hill of eomplaint against Mra.
Augusta H. Baker, the mother, as a
resident of Tennessee and a resident of the
state of Kentuclcy, and also against several
peraona who were residents of Tennessee,
getting up her appointment as administra-
-triz, aTcnring that hsr husband died intes-
tate, a recent of and domiciled in
Tennessee, leaving his widow as his sola
heir and distributee, and his mother and a
brother his only heirs at law. He bill
further set up the widow's ownership of
the stock in Baker, £ccles, ft Company, and
averred that the mother was asserting an
Interest In one half of the personal estate
left by the intestate, upon the theory that
he died a resident of Kentucky and that,
«, under the laws of that state, the mother
£was entitled to one-half of his surplus per-
* sonal aatate.* He prayer was (Inter alia)
that the mother be brought before the court
in the manner provided for nonresidents and
ba required to assert whatever claim she
might have to the estate left by the de-
ceased; and that it might be adjudged that
Charles Baker died a resident of TeijneBBee,
and that complainant, as bis widow, was
the sole distributee and entitled to all of
Ills personal estate. Upon the filing of the
bill an order of publication was made, cit-
ing Augusta H. Baker as a nonresident to
make defense upon a day named, and, ahe
faaving failed to appear, the bill was taken
for confessed against her, and eventually a
decree was made "that the said Charles
Baker at the time of his death waa a citi-
zen of and bad his domicil at Savannah,
Tenneseee, and that the complainant, as his
widow, is bis sole distributee, and as such
entitled to all of the personal estate of the
said Charles Baker, after payment of such
debts as were owed by him at the time of
bis death." and also that the title to the
atock of Baker, Ecclcs, ft Company was in
complainant, and that she was entitled to
hare a new certificate or certificates in her
own name issued by the corporation in lieu
of the certificates issued to said Charles
Baker, and was entitled to receive from the
corporation the amount of the accumulated
profits and surplus and other amounts due
from it to the decedent.
Meanwhile, the county court of Mc-
Oracken county, KentncI?, had granted let-
ters of administration to Hra. Augusta H.
Baker, the mother, and she, as such ad-
ministratrix, filed a petition in the Uc-
Craciien eireuit court for a settlement of
the estate, making the widow and Baker,
Ecclcs, ft Company defendants. The widow
did not appear, and a judgment was ren-
dered that Charles Baker died a resident of
UcCracken county, Kentucky, and tha^ un-
der the law of that state, the mother and
the widow were each eutlUed to one half of
the surplus of the personal estate. The
corporation was directed to cancel the SZO^
shares of stock Issued to decedent, and re-g
issue* one half of these to the widow, the*
other half to ths mother. This Judgment
has only historical importance, since the
Kentucky court of appeals in the present
case held it Invalid as against the widow
because of failure to comply with the local
law respecting notice to her.
In June, 1S13, the widow. Individually
and as administratrix of Qiarles Baker,
liegan a suit in equity in the McCracken
ity circuit court, which resulted in the
judgment now under review. Baker, Ecclea,
ft Company was made defendant. The
widow's petition, after setting up the or-
ders and judgments of the Tennessee courts
and alleging her sole ownership of the per-
sonal estate of the deceased by virtue there-
of, prayed that the oorporation be required
to transfer to her individually the 270
shares of stock adjudged to her t:^ the Ten-
nessee chancery decree, and also prayed
Judgment for 111,429.17, the alleged in-
debt^dneas due from the corporation to her
huatiand at the time of his death. Baker,
Ecclea, ft Company filed an answer putting
in issue all the averments of the petition.
Mrs. Augusta H. Baker, the mother, cam*.
into the suit by an intervening petition, in
which she averred that Charles Baker died
a resident of the state of Kentucky, and
that, under the laws of that state, she was
entitled to one halt of the shares of stock
and of the debt sued for, invoking the Mc-
Cracken circuit court judgmeot as an ad-
judication to that effect. She further put
in issue the validity of the orders and judg-
ments in both the Tennessee courts, averring
that so far as they determined that Charles
Baker died a resident of that state, and
that his widow was entitled to the whole
of his personalty after payment of his
debts, they were void, because neither of
the Tennessee courts had jurisdiction to
make such orders or judgments. The plead-
ings having been made up, evidence was
taken on the issue of fact as to the domicil
of Charles Baker at the time of hie death.
Upon this evidence^ the records of the ju-
dicial proceedings above mentioned, and ag
•showing of the pertinent Tennessee law, the*
,A_.OOglC
IM
S7 8UFRBMB CODBT KBPUBTEB.
Oor. Tmi,
«U0 wu niliiiiitt«d for hauMug, «nd it wu
adjudged that the widcm's petition b« dis-
missed, ^e widow appealed to the Ken-
tuckj court of appeals, and that court,
haTing deteriniiied the judgment of the Mc-
Cracken circuit court iD the mother's ad-
miniatration suit to be InTslid aa against
the widow, held that the judgments of both
Tenneasee courts were inralid as against the
mother becanse entered without process of
law as agidnst her; and then, passing upon
the question of font as to the domiell of
Charles Baker, foimd npon the evidence that
he was domiciled in the state of Kentack;
and his personaltj was distributable accord-
ing to the laws of that state, and afDrmed
the judgment, with a modification directing
the lower court to enter a judgment that
Charles Baker died a resident of Kentucky,
that bia mother and bis widow were each
entitled to one half of his personal estate
situate in Kentucky at the time ot his
death, after the payment of bis debts, that
Baker, Eceles, k Company ihouM cancel all
certificates of stock issued to Charlae Baker,
and reisBue one half ot theae to the widow
and the other half to the mother, and that
the lower court embody in the judgment
such other matters as would, after the pay-
ment of debts, distribute equally between
the widow and the mother all other personsJ
estate situate In Kentucky ot which Charles
Baker died possessed. 162 Ky. 683, LJR.&.
1917C, 171, 173 S. W. 109. To review tbia
judgment upon the Federal question, the
widow brings the ease h«r« upon writ of
No question is made by defendants in
error but that the Tanneaaee courts had
general jurisdiction over the subject matter,
nor that the proeeedinge were in conformity
with the Tomeseee statutes respecting prac-
tice. The sole question ia whether they
were entitled, under the Constitution of the
tTnited States and tbe act of Congress, to
e recognition in the courts of Kentucky as
^adjudicating adversely tha mother's assert-
* ed ri^t to share as distributee in the'per-
•onal property situate in Kentucky, or aa
conclusively determining the fact of the
domleil of the decedent aa affecting that
right, in view ot the failure of the Tennee-
aee courts to acquire jurisdiction over her
person or over the corporation. Baker,
Eceles, & Company.
It is the fundamental eontention ot
plaintiO' in error that the personal estate
ot an intestate decedent is a legal unit,
having its situs at the owner's domioil;
that the title to the whole ot it, wherever
situate, is veated in the duly qualified
domiciliary administrator, and not in the
dietribntees, and that its distribution is
governed by the law ot the domicil of the
deceased owner. WUklns r. Ellett, S WalL
740, ig li. ed. 688, 108 U. B. 266, 27 L. ed.
718, E Sup. Ot Rep. 641. Conceding that
such is the general rule of law, it is so
not because of any provision ot the Federal
Constitution, but only because the several
states, or moot ot them, have adopted it
from the oomraon law into their respectiva
systems. Joid the question remains. How
is the fact of decedent*! domicil to be ju-
dicially ascertained as a step in determin-
ing what law ia to govern tbe distrifautionr
Obviously, if fundamental principles ot jua-
tice are to be observed, the ascertainment
must be acoording to due process of law;
that la, either by a proceeding in rem in a
court having control of the estate, or hy
a proceeding in personam after service of
process upon the parties to be affected 1^
the judgment.
We have no concern with the effect of the
Tennessee jndgments upon the distribution
of so much of decedent's personalty as was
aituata within that state. The present
action affects only the ownership of shares
of stock in a Kentucky corporation having
no situs outside of its own state, so far
as appears, and a claim of indebtedness
against the same corporation. For the pur-
pose of founding administrstion, it is com-
monly held that simple contract debts are
assets at the domioil of the debtor, even
where a bill of exchange or promlsBory note
has been given as evidence. Wyman v. HsI-
stead (Wyman v. United States) 109 U. S.>4
664, 666, 27 L. ed. 1068, 1000, 3 Sup. CbS
Bep. 417. Th«* state of the debtor's domici)*
may impose a suceession tax. Blackston*
V. Miller, 188 U. S. 189, 205, 47 L. ed. 430,
444, 23 Sup. Ct. Sap. 277. It is equaUy
clear that the state which has created a
corporation haa such control over the trans-
fer of its shares of stock that it may ad-
minister upon tbe shares of a deceased
owner and tax the succession. Bee Re
Branson, ISO N. Y, 1, 9, 34 L.BA. 238,
69 Am. St. Rep. 632, 44 N. E. 707; Ra
Fitch, ISO N. Y. 87, 90, 64 N. E. 701;
Oreves v. Shaw, 173 Mass. 206, 208. S3 H.
E. 372', Kingsbury v. Chapin, 190 Mass.
633, 686, 82 N. B. 700, 13 Ann. Cea. 738;
Dizon V. Russell, 79 N. J. L. 4B0, 492, 76
Atl. 982; Hopper v. Edwards, 88 N. J. L.
471, 96 Atl. 607; People v. Qrfffitb, 246 III.
G32, 92 N. B. 813. The rule generally adopt-
ed throughout the states Is that an ad-
ministrator appointed in one state has no
power virtute officii over property in an-
other. No state need allow property of a
decedent to be taken witboot its borders
until debta due to its own citizens have
been satisfied; and there is nothing in the
Constitution of the United States aside
from the tuU fi^th and credit elause to
A^iOOglC
]•]&,
SAKER T. SAKBS, EOCEUE^ ft CO.
US
prercnt ti itmte from giving » lilce proteo-
tioD to its own eftizeiiH or residentB who
ftre interested in tlie inrplus after payment!
ol debts. All of which goes to show, what
plaintiff Id error in effect acknowledged
when ahe brou^t her present action in a
Kentucky court, that the Tennesaee jiidg-
menta had no effect in rem upon the Een-
tncky assets now in conteorersjr. She
Invokea the aid of those judgments as judg-
ments in personam. But it ii now too
well settled to be open to further dispute
that the "full faith and credit" clause and
the act of Congress passed pursuant to it do
not entitle a judgment in perBonua to
extraterritorial effect If it be made to ap-
pear that it was rendered without jurisdic-
tion oTcr the person sought to be bound,
nia rule became established long before
the adoption of the 11th Amendment, as
a result of applying fundamental principles
^ of justice and the rules of international law
§as they existed among the states at the in-
" oeption of the goTcrnment.* Notwithstand-
ing that Mills T. DnryM (1813) T Cranch,
481, 484, 3 L. ad. 411, 41S,— where, m the
opinion shows, the defendant had full no-
tice of the suit, waa arrested, and gave
bail, — WSJ by some courts Interpreted as
holding that, irrespeetire of such notice, the
act of Congress required a judgment under
ail eirmimstances to receive the same faith
and credit in every other state that it had in
the state of lU origin (Flsld v. GIbha
(181S] Pet C. C. 16S, 1S8, Fed. Cas. No.
4,7eS; Com. v. Green (1322) IT Mass. CIS,
546), the view soon came to prevail in the
state courts that Ihe case was not anthority
for BO broad a proposition, and that when-
ever a judgment of a state court was pro-
duced as evidence, the jurisdiction of the
eonrt rendering It was opra to inquiry;
and if It appeared that the oonrt liad no
jurisdiction, the Judgment was entitled to
ao faith or credit.l
Mr. Juatice Story, who wrote the opin-
ion in Mills V. Duryee, in his treatise on
the (Conflict of the Lawa, published in 1S34
(I 609), declared that the "full faith and
credit" clause and the act of Ckingresa did
not prevent an inquiry into the jurisdicti
of the court to pronounce the judgment, and
1 Borden v. Fitch (1818) 16 Johns, 121,
143, 144, 8 Am. Dec. £26; Atdrich v. Kinney
(1822) 4 Conn. 3B0, 383, JO Am. Dec 161;
Hall T. WillUms (1828) e Pick. £32, 242>
246, IT Am. Dee. 3G8; Miller v. Miller
(1829) 1 Bail. L. 242, 243; Hall v. Williams
{1883) 30 Me. 278, 287; Wernwag v. Pawl-
ing (1833) 6 Oill A. J. 600, 607, 26 Am. Dee.
SIT. See also Phelps v. Hollcer (1788) 1
Dall. 261, 2fM, 1 L. ed. 128, 129; Curtis v.
Uartin (1806) 2 N. J. L. ISO, 406, 40Sei
this view was adopted and made Ute basts o(
decision by this court in D'Ar^ v. Eetohum
(18S0) 11 How. 166, 13 L. cd. 048, which
was followed by Thompson v. Whitman, IS
Wall. 457, 469, 21 L. ed. 8B7, with a review
of many cases. m
During the same period, however, it oc-$
sionally waa* intimated, it not held, by*
some of the state courts, that a personal
judgment, effective within the territory of
the state, could be rendered against a non-
resident defendant who did not appear and
■ubmit himself to the jurisdiction, provided
notice of the suit had been served upon him
the state of his residence, or had been
published in the sUte within which the
court was situate, pursuant to the pro-
' lions of a local atatute. Gee Smith
Colloty, eg K J. L. 385. 371, 65 Atl.
S. As was said by Mr. Justice Field,
speaking for thia court in Pennoyer v,
Neff, se U. a. 714, 732, 24 L. ed. 663,
672, It is difficult to see how such a judg-
ment could legitimately have force even
within the state. But until the adoption
of the 14th Amendment (1868) this re-
ined a question of state law; the effect
of the "due process" clause of Uiat amend-
ment being, as was held in the case just
mentioned, to eatabllsh it as the law for
all the states that a judgment rendered
against a nonresident who had neither been
served with process nor appeared in the
suit was devoid of validity within as well
aa without the territory of the state whose
court had rendered It, and to make the
assertion of its invalidity a matter of Fed*
eral right.
The fundamental requisite at due proeeaa
of law in judicial proceedings is the oppor-
tunity to be heard. Louisville t N. R. Co.
V. Schmidt, 177 U. S. 230, 236, 44 L. ed.
747, 760, 20 Sup. Ct. Bep. 620; Simon v.
Craft, 182 U. S. 427, 43S, 45 L. ed. 1166,
1170, 21 Sup. Ct. Rep. 636; Grannis v.
Ordean, 234 U. S. 386, SQ4, 68 L. ed. 1363,
1368, 34 Bup. CL Bep. 770. To hold one
bound by the judgment who has not had
such opportunity is contrary to the first
principles of Jultlce. And to assume that
a party resident beyond the confines of a
state Is required to come within ita borders
and submit his personal controversy to its
Rogers v. Coleman (1808) Hardin (Ky.)
4la, 41G; Kllbum v. Woodworth (1809) 0
Johns. 37, 41, 4 Am. Dee. 321; Feoton v.
Qarlick (1811) 8 Johns. 194, 107; Shum-
way V. StiUman (1820) 4 Cow. 292, 294,
16 Am. Dec. 374, (1831) 0 Wend. 447, 449,
453; Starbuck v. Murray (1S30) 6 Wend.
148, 156, 21 Am. Dec. 172; Biasell v. Briggs
(1813) 9 Mass. 4S2, 468, 8 Am. Dec Sij
Whittler V. Wendell (1834) 7 N. H. 267.
.A^iOOgle
in
37 SUPREME COURT RBFORTBR.
Ooi. Tnn,
tribtmala npon reeeiTiog notice of the niit
>t tha plAce of hie residence ii » futile at-
tempt to extend tlie authority and control
of a etate beyond ita own territory.
So far aa the case for plaintifT in error
depends upon the adjudication of domicil
,by the county court of Hardin county, Ten-
S neMee, for tlie mere purpoae of appointing
• Ka admlniatratrix, it ia controlled by Tbor-
mann t. Frame, 170 U. S. 350, 44 L. ed. 600,
20 Sup. Ct. Rep. 44Q, and Overby t. Gordon,
177 U. S. 214, 227, 44 L. ed. 741, 748, 20
Sup. Ct. Rep. 603. But, it is pointed out.
In this case the county court \rent beyond
tb« bare appointment of an adminiBtratrix,
and proceeded to a aettlement and distribu-
tion of the estate. Moreover, pl&iatiff in
erroT relies not merely upon this judgment,
but upon the decree in the chancery court
of the same county, which in form specidcal-
ly determined her exclusive right to the
Kentucky personalty. It results, however,
from what we have already said, that this
right could not be conclusively eitabliihed
by any Tennessee court as against a resi-
dent of Kentucky who was not served with
proceaa and did not appear therein, and
that the Kentucky courts did not go counter
to the Federal Constitution and the act of
Congress in refusing to give faith and credit
to tJie Tennessee judgmenta.
In many forms, and with much emphasis,
the plftintift in error presaes the argument
ab inconvenientl. Starting from the propo-
sition that the entire personalty of an in-
testate decedent, wherever In fact located,
is a unit, having Its legal litua at the
owner's domicil, and that its distribution
ought to be in accordance with the law of
that domicil, it is argued: How is it pos-
aible to Judicially determine that domicil
under the theory of the Kentucky court
of appeals in the oaoe of an intestate
entitled to peraonalty in lereral states hav-
ing different laws of distribution, and with
parties claiming to be distributees residing
In dilTerent juriBdictionsT Asauming a law-
ful grant of administration in each state
wherein pert of the personalty is located
and s(»ne at the possible distributees
side, how, it is aeked, ii any one of theso
administrators, or any one of the claimants
of a share In the whole estate, to have the
place of the Intestate's domicil settled
thorltatively and the lawful distributees
aacertainedt The answer ia clear: Ui
K all poaaible distributees can be brought
f within the Jurisdiction of a single court
* having authority>to pass upon the subject
natter, either by service of process or by
their voluntary sppearance. it must in many
easea be impossible to have a single
trolling decision upon the question,
some cases, tlie ideal distribution of the
entire personal estate as a unit may thus
interfered with; but whatever Incon-
lience may result is a neceesary incident
of the operation of the fundamental rule
that a court of justice may not determine
the !:<ersoDal rights of parties without giv-
ing them an opportuni^ to be heard.
Judgment affirmed.
(Ul U. B. «as>
NEWARK NATURAL GAS 4 FUEL COM-
PANY. Plff. in Err.,
CITY OF NEWARK, Ohio.
CoNsnnmoNAL Law ^=42— Ob din an obb
-REOtiLATiNa Gas Rates — Who kat
SBAu. VAUDiir.
1. A gas-distrtbutlng company cannot
assert that conBtitutional rights of a gaa-
producing and transporting company fur-
nlahing gas to the former company upon the
baais of a percentage of meter readings will
be Infringed by a municipal ordinanca flz-
Ing the gas rates which the diatributiny
company may charge.
[Ed. Note.— l-or othar cuea. sea CoDStltutloDat
U>«. CanL Dig. H 3», W: Dsc. DIs. <fe=HS.]
Const miTioNAL Law ^sSlS — Dtik Pro-
CEBfi OF Law— MUNICIFAL RjCQCLATIOtT
OF Gas Rates.
2. The property of a giia-diatributing
company cannot ba said to have been taken
without due proccBB of law, contrary to U.
S. Const. 14th Amend., by a decree which
enforced, without prejudice to the right to
afijly thereafter for a modification, a mu-
nicipal ordinance fixing gas rates for five
yeara, where there was no claim that the
company could not operate profitably un-
der such ordinance so long aa its contract
with a producing gas company, under which
ths latter was to furnish gas to the former
upon the baais of a percentage of meter
readings, which had two or three years to
run when the Buit was commenced, remained
in force, and no evidence was offered to
show the rate paid by the diatributing to
tlie producing company after tha expira-
tion of such contract.
[Bd, Note.— For other cases, sea Constitutional
Law. Cant, DlK. H l>3&. 831, 3U, tiT, Dec Sic
Argued December 4, I0I6. Decided Janu-
ary 8. iei7.
IN ERROR to the Supreme Court of ths
State of Ohio to review a decree which
afflrmed a decree of the Court of Appeals of
Ucking County, in that state, granting a
mandatory injunction to enforce a munic-
ipal ordinance fixing gaa ratea. Afflrmed.
See same case below, 92 Ohio St. 393, 111
N. E. 150.
Tha facts are stated in the opiuIoD.
«S9Far otbsr easM *•• isms topic A KBT-NUllBEB In all K«r-Ntnabsnd Dlcwl*.
•t^mg\c
leie.
KEWABK NATURAL GAS Jb V. 00. t. HEWABK.
ur
Me»sr*. imnm R. PUxglbbon, Eugene
Macka;, S. M. Douglua, uid Cbarlea Mont-
gamerj for pluDtiff in error.
Mewra. Frank A. Bolton, Ralph Nor-
pell, and Edward Kibler f«r defendant in
7 *Mr. Justle* Pltner delivered the opin-
ion of the court:
^e qneation upon which onr jurisdiction
ia here invoked is whether an ordinance of
the oity of Newark, Ohio, paued March 6,
1I>11, fixing the mazimnnt price that plain-
tiff !d error might eharge to conamneTB of
natural gaa in that city tor a period of
five years at 20 cents per thouiand cnbic
feet, with 10 per cent diseoiiDt for prompt
payment, — a rate described aa "18 centa
net," — ia confiscatory, and therefore In vio-
lation of the "due proceaa" clause of the
14th Amendment. Plaintiff in error operatea
under a franchise granted hj a city ordi-
nance passed February 21, 1B98, tor a term
of twenty-five years, which permitted a rate
of 25 centa per thousand for a period of ten
yeara from ita passage, but within that
period the company voluntarily introduced
a net rate of IH cents and maintained it
for some yeara prior to the adoption
the ordinance of 1911. The company
fused to accept the provisions of the latter
ordinance and notified its customers that It
would discontinUB service nnleaa the rate
of 25 centa waa paid. Thereupon the city
filed a petition in the court of common
pleaa of Licking county, praying a manda-
tory Injunction. The company answered
that the ordinance provided no juat oom-
poieation for the uae of its property and
^ therefore deprived it of its constitutional
^ righta. Volmninous evidence was taken np-
■ on'thia iaaue, and the court found the de-
fenae to be unfounded in fact, and made a
decree in favor of the eity, but without
prejudice to the right of the company to
apply for a modification "if at any time it
should appear that aaid rate of 18 cents
net does not render an adequate return to
said defendant company." An appeal was
taken to tbe court of appeals and there
heard upon the evidence taken in tbe court
of common pleaa and additional evidence,
and the same decree was entered as in the
court of common pleaa. Hie supreme court
of Ohio aflinned the decree |B2 Ohio St.
S83, 111 N. E. ISO).
The opinions of the state courts show
that they gave careful consideratltm to tbe
questions of the value of the property of
plaintiff in error at the time of the inquiry,
the total amount of net profits that could
be earned nnder the rata fixed, and whether
tills would be sufficient to provide a fair
return on tbe value of the property. The
concurring judgments were tiased upon
principles thoroughly established by repeat-
ed deeiaiona of thia court (Covington ft L.
Tump. Road Co. v. Sandford, 164 U. S. 578,
607, 688, 41 L. ed. 660, 666, 667, 17 Bup.
Ot Rep. 19S; San Diego Land k Town Co.
V. National City, 174 U. S. 739, 764, 43
L. ed. 1154, 1160, 19 Sup. Ct. Rep. B04;
KnoxviUe v. KnoxviUe Water Co. 212 U. S.
1, B3 L. ed. 371, 29 Sup. Ct. Rep. 148;
WiUcoi V. Consolidated Gaa Co. 212 U. S.
19, 48, 63 L. ed. 3B2, 398, 48 Lll.A.(N.B.)
1134, 29 Sup. Ct. Rep. 192, 15 Ann. Cas.
1034; Des Moinea Gas Co. v, Des Slices,
238 U. 8. 163, 163, 69 L. ed. 1244, 12S0,
P-U.R.1B16D. 677, 36 Sup. Ot Bep. 811],
and the finding that there was no conflsea-
tion is amply supported by the evidence.
Tbe reaervation of the right to apply there-
after for a modification waa in accord with
the action of thia court in tbe Knozvill*
and Willoos Caaea, 212 U. S. pp. 19, 66.
A diatinetion ia aought to be based upon
the fact that two companies are necesaarily
affected by the rate, — a producing and a
distributing company; it being contended
that the state courts have ignored the cost
of production- It appears that after the
granting of the franchiae of 1B9S, plaintiff
in error, whioh theretofore had been holh a^
producer and a distributer of gaa, sold all^
of its property to'the stockholders of the*
Logan Natural Gsa ft Fuel Company, and
thereafter confined ita activities to distri-
bution, the Logan Company being In eou'
trol of production and transportation j and
that in 1904 the Logan Company entered
Into a contract with plaintiff in error to
fumiah the gaa needed to aupply the city
for a term of years, on the basis of a per-
centage of the aggregate readings of the
consumera' meters, in the proportion of
70 per cent of tbe gross receipts for the
Logan Company and 3D per cent for plaintiff
In error. At tbe time the suit was com-
menced the contract had two or three years
run, while the limiting ordinance was
continue tor five years. There is no con-
tention that plaintiff in error could not
operate profitably nnder the ordinance of
ISll so long as the contract remained in
force; but it is said that, because of cbanged
iditiona, including the partial exhaustion
of tbe gas-producing field, the contract was
no longer profitable to the Logan Company
under the rate permitted by tbe ordinance
of 1911, tbe cost of production and trans-
portation of natural gas alone being at that
time, as ia asserted, aa much as the entire
amount of the net rate of 18 cents allowed
by tbe ordinance. But plaintiff in error
cannot be beard here to assert the eonati-
tutional righta of the Logan Company (Ply-
month Coal Co. T. Pennsylvania, 232 U. S.
A^iOOglC
US
17 SUPRBUB OOUBT BBPOBTEB.
Oct. Tmi,
SSI, 544, S8 L. ed. 718, 710, S4 Snp. Ot
Rep. 350], knd the pertinent question !■
what plaintiff in error would probably have
to pay lor gas during the life of the ordi-
nance. The contract meaaured thii so long
aa it continued in eSect And, although it
expired some time before the clofling ot the
evidence in the court of appeals, as the bu-
preme court pointed out, no evidence waa
offered to Bhow the rate paid by the New-
ark Company to the Logan Company after
ita expiration. The ordinance speciSed a
period of Ave yean; but, by the decree, thia
was made mbject to the provision giving
ft rigbt to plaintiff in error to apply for
relief if it should appear that the IS-eent
S rate did not render an adequate return.
7 * Plaintiff in error baa failed to ihow that
tbe ordinance has the effect of depriving
it of property without due process of law
within tbe meaning of the 14tb Amendment,
and the judgment under review is affirmed.
<J« D, 8. 4«1
LOUISVILLE BRIDGB COMPANY, Appt.,
UNITED STATES.
Navioabli Watkhs «=>20(6) — Fsdxbai.
Co:4TBOL or NAVioATiofl -- RzqinaiNO
Alterations in Bbidqi— Ibbipealabli
FBAnCBisB— Vebtbd RiaHTS— CoiiPENBA-
1 . A bridge company which has erected
a bridge over the Ohio river, in accordance
with the requirements of the Acta of Jul*
14, 1BS2 (12 Stat, at L. 660, chap. 187),
and February IT, 1805 (13 Stat at L. 431,
chap. 38), each of which declared that ft
bridge erected under its provisioai shall
be a lawful structure and be recognised and
icnown as a post route, and neither of
which contains any reservation of the right
to alter, amend, or revoke tbe franchise, was
given no irrepealable franchise to maintain
its bridge precisely as it was originally con-
structed, and no vested right entitling th«
bridge company to compensation under U.
S. Const. 5th Amend., In case Congress
should thereafter, in the exercise of ita
power to regulate commerce, require
changes to be made in the Interest of navi-
gation, but the authority of Congress to
compel ebanges was precisely the same aa
if tlie bridge hod been constructed under
state legislation without license from Con-
gress, or had been constructed under con-
gress ion a I consent or usape, coupled with
an express reservation of the right of revo-
cation or amendment.
(Ea. Not«.-ror othw nns. Me Navlnbl*
Waters, Ceat. Dls. | II ; Dw. Dla. «:9lO(i).]
Naviqabue Watbbs «=320(2) — Bbidox
ovKs Naviqable Watebw at—Co iiPKL-
LINO A LT E RATI on 9— lUFLIED UEPKAI, OT
A SrtciAi. Fbanciiise.
2. The declaration by Congress In the
Acta of July 14, ]8S2 (12 Stst. at L. 6S0,
chap. 167 J, and February 17, ISflB (13
Stat, at I,. 431, chap. 38), that a bridge
■cross the Ohio river, when erected in ac-
cordance with the requirements of those
acts, should be a lawful structure, ftnd be
reco^lzed and known oi a post route, was
impliedly repealed by the provisions of the
River and Harbor Act of March 3, IBOO
(30 Stat, at L. 1121, chap. 425, Comp.
Stat 1913, I eOTO), g 18, that whenever
tbe Secretary of War finds any bridge there-
tofore or thereafter constructed over any
of the navigable waterways of the United
States to be an unreasonable obstruction
to free navigation It shall be his duty, after
hearing, to take action looking to tbe re-
moval or alteration of the brii^e, ao as to
render navigation reasonably free, easy, and
unobstructed.
[Bd. Not!.— For other cshs, ■•• NaTlsabl*
Wsten, Cent. Die li 14-SI: I>M. DU. «=3iQ(t).l
[No. 540.]
8 and 11, 181«. Decided
January B, 1017.
APPEAL from the District Court of the
United States for the Western District
of Eentucky to review a decree restraining
a bridge company from reconstructing the
superstmctnre of its bridge, contrary to the
provisions of an order of tbe Secretary of
War. Affirmed.
Bee same cose below, 233 Fed. 870.
The facts are stated in the opinion.
Messrs. William W. Crawford, Imw-
renc« Maxwell, and Charles H. Gibson
for appellant.
Assistant Attorney General Wallace for
appellee. J
-£Ir. Justice Pitney delivered the (^inioa'
of the court:
Appellant is tbe owner of ft bridge across
the Oliio river at Louisville, Kentucky,
known as the "Ohio Falls bridge," which
was built under an act of Congress approved
February 17, 1S6S (chap. 38, IS Stat at
L. 431), supplementary to an act approved
July 14, 18S2 (chap. 1S7, 12 SUt at L.
eaS). The I8S2 Act, as amended, allowed
the bridge to be built under one of several
plans detailed, and with a prescribed mini-
width for spans and a minimum clear-
height above the water. This aot, in
its 5th section, declared: "^at any bridge
bridges erected under the provisions of
this act shall be lawful structures, and
shall be recognized and knows as post
routes, . . . and the officers and crews
of all vessels, boats, or rafts navigating the
lid Ohio river are required to regulau the
<e of the said vessels and of any pipes
' chimneys belonging tbereto, so aa not
to interfere with the elevation, constrno-
1, or use of any of tbe bridges erected
legalized under the provisions of this
act." Tbe 1st section of the 1866 Act omi-
«ssFor olbar
M asm* topic * KET-NUUBSR in aU Ker-Nnmbered Dliaata A laOnm
Ul«.
LOUISVILLB BRIDQE CO. t. UIOTBD STATES.
189
talncd ft ptorUo "tlwt nid bridge uid
dnwB ihalt b« BO conatmcted as not to
Intwrapt tha DiTigfttion of the Ohio riTer;'
ttw 2d aectioB declared "thftt the bridgi
Vttcted under the provisions of this sot
shftU be ft Iswful ■tructure, and shall be
recogniied and known u a post route."
S The Ohio Fslls bridge was built In all
• reapocta In *secordsnce with the rcquire-
mnts of these acta, except that, instead ot
the minimnm Qhsmiel span of 300 teet pre-
scribed, the builder! made spans of S80
feet and 3S21 feet respectiTelj, and exceed-
ed the dearance height of the highest of
the snthorlied plans, thus expending 91S0,-
000 more than was necessary to complj wiUi
tha letter of tlie law. The bridge was com-
pleted In the yefti ISTQ, and since then has
been contlnuouslj in nse ** a railroad
bridge, fnrnlBhing one of the principal
thoroughfares acroes the Ohio rirer from
north to south. Its superstructure now re-
quires renewal, but this can be done with-
out obstructing navigation any further than
the bridge does at present and has dona
eror ainee Its construction.
In tha year 1914 tha Secretary of War,
prooeeding under g IS of an act of Con-
greas approved March 8, 1890 (chap. 426,
80 Btat at L. 1121, JIGS, Comp. BUt. iei3,
f 9B70), gave notice to appellant that he
had good reason to believe the bridge was
an obBtmction to navigation because of
iasnffteiant horicontal clettrance of the chan-
nel span crossing the main navigable chan-
nel of the river, and insufficient width of
opening in the existing swing span cross-
ing tha Louisville A Portland Canal, and
ftppointed a time and plaee for a hearing
npon this question. Appellant introduced
■o evidence at tha hearing, but filed a pro-
test against any action by the Secretary
under the Act of 1899, on the ground that
this act did not affect bridges constructed
under the AcU of 18BZ and 18SS, or that,
if it attempted to do so, it was unctmsti-
tutional. After the hearing the Secretary
made an order notifying appellant to alter
the bridge within three years, so as to pro-
vide an enlarged horizontal opening for the
main navigable channel, and to change the
swing span across tha channel to a lift span
having a prescribed horlztmtal clearance,
and ft prescribed vertical clearance when
open. A further heftring and some corres-
^ pcmdenoe having led to no result, ap-
H peDant notified the Secretary of War in
Twritiug that It in^ted on the right* to
renew It* supexatrnctnTe on the existing
nasonry without changing the length of
any of the existing spans, "so that when
eompletsd it wiU not Interfere with navi-
gation any more than It doe* now,"
ftnd that it inUnded '
work of renewal at once. Shortly there-
after the Attorney Oeneral filed ft bill
for an injunction in the district court;
appellant answered, setting up Its claims
as above indicftted; and tha case was
brought to ft hearing upon stipulated facts
presenting, as the sole question to be
determined, — the legality of the order of
the Secretary of War as applied to the
bridge in question. A final decree was
made restraining appellant from recon-
structing the auperstructure of the bridge
in a manner inconsistent with the provisions
of the SecreUry'a order (233 Fed. 270], and
the case comes here by direct appe^, as
permitted by 8 IS of the 1899 Act.
Concisely stated, the position ol appel-
lant is that the Ohio Falls bridge was con-
structed under an irrevocable franchise, and
became upon its completion a lawful
structure and the private property of ap-
pellant; that Congress bad no power to
require its removal except in the exercise
of the Federal authority t« regulate com-
merce, and subject to tha provision of the
Gth Amendment that private property shall
not be taken for public use without just
compensation; and that the Act of 1899,
being a general act, does not, by fair con-
struction, operate to repeal the special fran-
chise conferred by the Acts of 1882 and
1S66, and, If it does, it Is unconstitutional
because it fails to make provision for com-
pensation.
The first and fundamental cimtention is
rested in part upon tacts of which we may
take judicial notice, that when the Acts
of 1SB2 and 18S6 were passed the Civil
War was in progress, and there was urgent
need of a bridge over tha Ohio river west
ot the Big Sandy (the eastern boundary of
Kentucky) to provide for the transfer ot
troops and sappllea from tha North to 5
the South; that there 'were no bridges}'
crossing the Ohio at either of the cities ot
Cincinnati or Louisville, or at any point
west of them, and Uiat the movement of
troops snd supplies was thereby greatly
hampered; that the river at Louisville is
approximately a mile wide, the current
quite rapid on account of the Falls, and in
winter frequently filled with ice, so as to
render a bridge a pressing necessity; and
that the war had disturbed somewhat the
finances of the country, and capital for
large undertakings was difficult to secure.
But the argument lays especial stress upon
tha declaration that the bridge in question
should be a lawful structure and recog-
nized and Icnown as a post route, and tha
fact that neither the original nor tha sup-
plemental acts contained any reservation
of the right to all«r, or amend, or revoke
the franchlsa.
D,at,z.,i-.,'^-.OOt^lC
100
ST SUPREME OOUBT BEFOKTEB.
Oor. Tom,
These *r« no doubt weighty eonaidera-
tions, and raise > grave question, but th(7
do not neceesarilf dispose of it Clearij,
the acts were passed under the power of
Congress to regulate commerce. Ttiat power
is B. Tery great power, and in its nature
continuing, not being exhausted by any
particular exercise. We need not go so far
as to say that Congreas couid not in any
case, by contract or estoppel, prevent itself
from modifying or revolting a regulation
once made and suiMtituting another in its
place without compensation. But when
private rights of an indefeasible nature are
•ought to be derived from r^ulatory pro-
visions established In the exercise of this
power, the case Is peculiarly one for the
application of the universal rule that
grants of special franchises and privileges
are to be strictly construed in favor of
the public right, and nothing la to be taken
as granted concerning which any reasonable
doubt may be raised. As this court, speak-
ing through Mr. Chief Justice Waite, de-
clared in Newport & C. Bridge Co. v.
United eutes, 108 U. 8. 470, 480, 28 L.
«d. 1143, 1147: "Congress, which alone
<g exercises the legislative power of the gov-
vwnuaent. Is the constitutional protector ol
* foreign and iuterstate*eommerce. Its super-
virion of this subject is continuing in its
nature, and all grants of special priTtl^ea,
affecting so important a branch of govern-
mental power, ought certainly to be strict-
ly construed. Nothing will be presumed to
have been suirenderad unless it was mani-
festlj so intended. Every donbt should b*
resolved in favor of the government."
The absence of an express reservation of
the right to alter or amend is not con-
clusive. As is well understood, reservations
of this kind have a peculiar fitness In state
legislation, being traceable historically to
the decision of this court In Dartmouth
College V. Woodward, 4 Wheat. S18, 4 L.
ed. 829, that a corporate charter is a con-
tract within the meaning of that clause of
art I, 9 10, of the Constitution, which de-
clares that no state shall pass any law im-
pairing the obligation of contracts, so that
a state law altering such a charter in a
material respect without the consent of the
corporation Is unconstitutional and void)
and the suggestion In the concurring opin-
ion of Mr. Justice Story (p. 876) that the
reaerration of a power to alter or amend
the charter would leave the state free to
enact subsequent amendatory legislation.
Miller v. New York, 16 Wall. 478, 494, 21
[i. ed. OS, 103; Oreenwood T. Union Freight
B. Co. 106 U. S. 13, 20, 26 L. ed. BSl, 004;
Spring Valley Waterworks v. Schottler, 110
U. 8. 347, 362, 28 L. ed. 173, 176, 4 Sup.
CL Hep. 48. CongrsBS ia not prevented by
the Constitution from paaslng laws that
impair the obligation of contracts, and in
its enactments the presence or absence of
such a reservation has not the same peculiar
significance that it has In state legisla-
tion. It is no doubt a circumstance, but
not by any means conclusive.
At the time the AcU of 1882 and 186S
were passed, it was not customary for Con-
gress to include in legislation of this cbar-
Boter an express reservation of a power of
future control or repeal. In an Act irf
August 31, 1862 (chap. Ill, 10 BUt at L.
112, 93 S and 7), certain bridge* already*
In existence across the Ohio river were de-^
clared to be lawful* structures. The next*
acts of a similar character appear to have
been those now under consideration. Con-
temporaneously with the aeeoud of these,
an act was passed (chap. 39, IS Stat at
L. 431) declaring a bridge then under con-
struction across the Ohio between Cincin-
nati and Covington to be a lawful struc-
ture. In neither of these was there any
express reservatitm of future control. In
succeeding years 1 numerous bridge acts
were passed containing In one fonn or an-
other a reservation of the power to alter
or amend the act or to withdraw the assent
given. Hese provisions may well have
been inserted from abundant caution, and
because provisions of like character had be-
come familiar in state legislation. But
obviously, they throw no direct light upon
the Intrait of Congreas in preceding l^isla-
tion.
While scrutinizing the acta of 1802 and
186S in the effort to determine the legis-
lative Intent as therein expressed, we should
primarily consider the fact that they were
exertions of a power to regulate commerce.
Such a regulation, designed as it is to fni^
nish a guiding rule for future conduct, car-
ries with it the suggestion that it may
not always remain unchanged. And unca
our interstate and foreign commerce is a
thing that grows with the growth ol the
people, and its instrumentutities change
with the development and progreoa of the
country, it was not natural that Congress,
in enacting a regulation of such commerce,
should intend to put shackles upon its own
power in respect of future regulation. The
act declared that the bridge, when erected.
1 Acts of July 25, 1808 (chap. 240, S 13,
14 SUt. at L. 244); February £7, 1807
(chap. B8, 14 Stat, at L. 412); February
21, 1868 (ch^). 10, 16 Stat at L. 37) ; July
8, 1808 (chap. 134, 16 Stat, at L. S2) ; July
20, 1888 (chap. 170, IB Stat at L. 121) ^
February IS, 18S9 (chap. 37, 16 Stat at
L. 272) ; March 3, 1869 (chap. 130, 16 StAt
at L. 836) 1 Joint Resolution of Man^ 1,
1869 (16 SUk at L. 847).
A^iOOgic
iBie.
LOtnSVnJiB BKIDQB 00. Y. UHn'Bl) STATES.
m
should b« "b lawful atractur*;" but Ui«r«
tare uo woTda of perpetuitj, nor mj ezpr«M
eoTen&nt against a changa In the law.
There is a'prorUo In the 1S66 Act that the
bridge and drawe ehall be eo eouBtructed
aa not to interrupt the navigation ol
the river, — an erident modification of that
elauM of ths 1882 Act which required vea-
■ela to be to regulated aa not to interfere
with the bridge. It le poeaible to construe
(be proviso as referring solely to the time
of original oonstnietiMi, and as satisfied if
the bridge and draw* did not then obstruct
navigation; but this would diar^sid the
fundamental rule that requires strict con-
struction of such grants as against the
private right. In the light of that rule, the
true meaning rather la that the bridge and
draws should be so constructed as not at
M17 time to interrupt navigation. (See
West Chicago Street R. Co. v. Illinois, 201
U. S. 60e, 616, £21, 60 L. ed. S4&, S4S,
SSI, 2« Sup. Ct S^. SIS.) ludead, the
proviso seems to have been so interpreted
by the recipients of the grant, for, as ap-
poajs from the stipulation, the original
builders of the bridge did not limit them-
■slves to giving only what they were com-
pelled by law to give, but, at large ex-
pense to themselves, exceeded the heights
•Bd widths that the act required.
It la tme that Congress must have eon-
tonplated that a large Investment of
private capital would be nacSBsary, and
that the bridge when once constructed
could not be abandoned or mater iaUy
dianged without a total or partial loss ot
value. This la a very grave consideration,
and we have not at all overlooked It; but
we cannot deem It controlling of the ques-
tion presented. It may be assumed that
the parties foresaw, what experience since
has demonstrated, that it would be many
jears before changing oonditions of navi-
gation -would render the bridge out of date,
and that the investors were satisfied with
the prospect of the profit to be gained from
the use of the bridge In the meantime.
A circumstance perhaps twaring in the
same direction is that appellant is a Een-
T< tucky corporation, chartered fay an act ot
^the li^islature approved March 10, 18S0
* (Aeto*1865-^a, vol. 2, p. 426), which con-
tidns a proviso, "that said bridge shall be
•OQstructed so as not to obstruct naviga-
tion, further than the laws of the United
Btatea and the deoislons ot the Supreme
Court of the United States shall hold to be
legal"
Reviewing the entire question, bearing
In mind the nature of the subject matter,
the ciTcumatance* of the period of the
enactments, and the language employed by
~ as, and eonstmlng this strictly
37 8. C— 11.
against the grantee, as the familiar rule
requires, we are oonstralned to hold that
the Acts of 1862 and 188S conferred upon
appellant no Irrepealable franchias to
maintain its bridge precisely as It was
originally constructed, and created no vest-
ed right entitling appellant to compensa-
tion under the 6th Amendment in case Con-
gress should thereafter. In the exercise of
its power to regulate oommeree, require
changes to be made in the interest of navi-
gation.
Thia being so, the authority ot Congress
to compel changes was precisely the sama
as if the bridge had been constructed under
state legislation without license from Con-
greas, aa in Union Bridge Co. v. United
States, 204 U. 8. 364, 388, 400, SI L. ed.
S23, G34, 63S, ST Sup. Ct. Rep. 3STi Monon-
gahela Bridge Co. v. United States, 216 U.
8. 177, 103, 64 L. ed. 435, 442, 30 Sup.
Ct. Rep. 368; or had been constructed un-
der congressional consent or authorization
coupled with an express reaervation of the
right of revocation or amendment, as is
Newport ft C. Bridge Co. V. United SUta^
lOe U. 8. 470, 481, 28 L. ed. 1143, 1147 ; Han*
nibal Bridge Co. v. United States, 221 U.
S. 194, 207, GE L. ed. 60S, 704, SI Sup.
Ct. Hep. 603. We are aware that a dif-
ferent result wa* reached by the circuit
court and circuit court of appeals la
United SUtea v. Parlcersbnrg Branch R. Co.
134 Fed. ess, 74 C. C. A. 354, 143 Fed.
224; and by the circuit eoort in some
previous ease* referred to in 134 Fed. ST3.
But, upon mature eonslderation, we have
concluded that these decisions must be over-
Appellsnt dtea Monongahela Nav. Co. ▼.
United SUtes, 148 U. S. 312, 37 L. ed. 463,.
13 Sup. Ct. Rep. 622, but it is pUinly di»M
tinguishable. * Tliere the Navigation Com-*
pany under a state charter had constructed
locks and dams in the Monongahela river,
to the great Improvement of its navigatitm,
and by a supplement to ita charter had
been required to commence the construction
of lock and dam No. 7 In such manner and
on such plan aa would extend the naviga-
tion from its than ;nwaent terminus to the
state line. This work was to complete ths
company's improvements in the state of
Pennsylvania. Thereafter Congress, In
1681, appropriated C25,000 for improving
the Monongahela river in West Virginia and
Pennsylvania, with the proviso that the
money should not be upended until the
Navigation Company had undertaken In
good faith the building of lock and dam No.
7 and had given aSBuranee to the Secretary
of War of ita ability and purpose to com-
plete the same. The company gave satla-
faetory aaanrane* to the Secretary, cent-
,A_.OOglC
IBS
37 SUPEEME COUHT EBPOHTER
Oor. Tan,
menced tha work in IS82, and completed
it in IS84. B7 Act of Augiut II, 16S8
(20 St«t At L. 400, 411, GhAp. MO), Con-
gteat KUthoriied the BeoreUrj of Wftr to
purchase thU lock iiiid dam Irom the com-
pui;, uid In the event of hia inability to
make a Tolimtary purobua within a apeei-
fled limit of expense, then to take proceed-
ings for their condemnation, with a proTiso
that. In estimating the sum to be paid b;
the United States, the franchise of the
ccrporation to collect tolla should not be
ooaaidered or estimated. It appeared that
the tolls received bj the companj for
the use of its works, {Deluding lock and dam
No. T, averaged t840,00a per annum, that
the monej value of the entire works and
franchise was not leas Uian $4,000,000,
and that the actual toll receipts of lock and
dam No. T were In excess of •2,800 per
annum, and would pcobablj increaae In the
near future. This court held the proviso
excluding the franchise to collect tolls from
consideration in the condemnation proceed-
ings to be inconatstent with the 6th
^Amendment (p. 336). But it wiU be ob-
cj served that ijiia was not a case of remov-
■ ing a •Btructuro from the river on the
ground that it interfered with navigation,
but a taking over of a structure and em-
ploying it in the public use a* an inatru-
mentality of navigation. In short, there
waa a clear taking of tha property of the
company for public use aa property, and
an attempt at the same time to exclude from
consideration an essential element of its
value when ascertaining the compensation
to be paid. The case has no bearing upon
the one at bar.
BeferHice Is made also to our recent de-
cision in United States v, Baltimore k 0.
R. Co. 2E0 U. S. 244, S7 L. ed. 1180, 33
Sup. Ct. Rep. SSI, and although this court
merely affirmed the circuit court on the
ground that the matter was res judicata,
it is argued that we necessarily decided tha
questions raised in the present case in order
to come to the conclusion that the question
was one of res judicata. In view of the
very plain language amployed in the opin-
ion (pp. 261, £64), the argument is Iwse-
There remains only the contention that
the Act of laoO, being a general act, does
not by fair construction operate to repeal
or modify the special rights conferred upon
appellant by the Acta of 1862 and 186S.
We deem this point likewise untenable. In
terms the act applies without qnaliflcatiou
to "any railroad or other bridge now con-
ttructed or whidi may hereafter be con-
atmcted over any of the navigable water-
ways of the United States." It is argued
that at the time of ita paasage there were
two classes of bridges to whidi tlie term
"now constructed" woold properly apply
without affecting any vested right, namely
(1) bridgea theretofore built under state
authority only, and (2) bridges theretofore
built under congrGsaional authority with a
power of amendment or repeal expressly re-
served; and Utat full effect can be given to
the language of I 18 without holding that
it is a repeal by implication of the declara'
tion of Congreas In the Act of 1SB5 that
the Ohio Falls bridge as constructed was a^
lawful structure and a post route of thej
United Statea. But the ISQB Act -is not"
only unqualified in its terms, but from tha
nature of the subject matter there la every
reason for giving it a universal applica-
tion. As we have seoi, appellant had no
indefeasible right to maintain its bridge
as originally constructed, and the absence
of an express right of repeal from the Acts
of 1862 and 1806 has as little bearing upon
the question of the practical justice or in-
justice of requiring an alteration in the
bridge as it has upon ttie question of con-
stitutional right. And of course, from the
point of view of the requirements of navi-
gation, the particular phraseology of the
acta by which the oonstructlon of the dif-
ferent bridges was authorlied is altogether
insignificant.
It may be concedad that the declaration
of Congress in the Act of 1866 that the
bridge was a lawful structure was oon-
clustve upon th« question until Congress
passed some inconsistent enactment. As was
said by Mr. Justice Nelson, speaking lor
the court in the Wheeling Bridge Case, 18
How. at p. 430, 16 L. ed. 436, although it
may have lieen an obetruetioo in fact. It
was not such in the contemplation of ths
law. But 1 16 of the 189S Act wrought a
change in the law. (There were simitar
provisions in an Act of August 11, 1888,
chap, eeo, S B, ZS Stat, at L. 400, 424; and
in an Act ol September 19, 18B0, chap. SOT,
1 4, 86 SUt. at L. 426, 453; but we pass
them by.) Congress thereby declared that
whenever the Secretary of War should find
any bridge theretofore or thereafter con-
structed over any of the navigable water-
ways of the United States to 1m an un-
reasonable obstruction to the free navigation
of such waters on account of iuHuSlcIent
hught, width of span, or otherwise, it
should be the duty of the Secretary, attsi
hearing the parties conoemed, to take action
looking to the removal or alteration of tba
bridge, so as to render navigation through
under it reasonably free, easy, and un-
obstructed. As this court repeatedly has
held, this is not an nneonstitutional dele-
gation ol legislative or Judicial power to
the Secretary. Union Bridge Co. v. United
A^iOOgic
lOIB.
mix T. BBYN0IJ)8.
va
M states, 204 U. S. 864, 380, SI L. ed. S23,
■ 633, 27 Sup. Ct. Rep. 307 ;* MononKahela
Bridge Co. t. United States, 210 U. S. 177,
102, 54 L. ed. 435, 441, 30 Sup. Ct Rep.
ISOi Hannibal Bridge Co. r. United States,
2Z1 U. S. 194, 205, 65 L. ed. 699, 703, 31
Sup. Ct. Itep. 003. The statute itself pre-
scribed the general rule applicable to all
navigable waters, and merely charged the
Secretary of War with the duty of ascer-
taining in each case, upon notice to the par-
ties cooeemed, whether the particular bridge
earns within the general rule. Of course,
the SscretatT's finding must be based upon
the conditions as the7 exist at the time he
acta. Bnt the law imposing this duty upon
him speaks from the time of its enactment.
And there is no real inconsisteDcy between
a declaration by Congress in 1S65 that a
certain bridge was a lawful structure and
not an improper impediment to navigation,
and a contrary finding by the Secretary of
War in the year 1014.
Srnce we are constrained to hold that
none of appellant's contentions ia well
founded, it results that the decree under
reriew must be affirmed.
FRANK REYNOLDS.
IiinuHe «»1S — InriAW Allotmbhm —
OwitEBsmp or Iupbovemento— Psefui-
cmiAi, KiaHT.
1. Indians claiming the ownership of
tanproTsments on Choctaw and Chickasaw
lands hy Tirtue of the surrender of surplus
lands, with meager improremente thereon,
by a widow, the head of a Chioltasaw family,
and apparently Its only aetlre agent, after
tiie condemnation in the CnrtlB Act of June
28. 1808 (SO Stat, at L. MB, chap. G17),
%i 17, IS, of the practice of holding pos-
session of tribal lands in excess of the ap-
proximate or altottable shares of all the
members of the family, to one who took pos-
session in good faith and made extensive,
lasting, and valuable Improvements, have
a better claim to such improvements, and
therefore a better right to select the land
lor their allotment, than otJier Indiana who
elaim under a subsequent conveyance from
tiie widow, her adult sons, and the guardian
of those who were stU! minors, mode after
the Brst purchaser had been in possession
for nearly four years, with no serious effort
to dispossess him, hts vendees having eon-
tinned in possession of all the land save
a tract of 80 acres or less which ths second
purcliasers had entered adversely, adding
■o improvements except a short and unsub-
stantial fence.
ed. Not!.— For other casea, msa Indiana. CsnL
I tO; Oao. DIs. «:9U1
Indians <^=>13 — Indxait Au^oTuxlin —
Excessive Iiici.osiiee on HoLDiifes — ■
COBBEOTIOIT.
2. Indian citizens were not given th«
right to revive and reassert long dormant
claims to Choctaw and Chickasaw lands
after others had entered into possession of
and highly improved the lands, by the pro-
visions of the supplemental agreement witii
the Choctaws and Chickasaws, gs 19-21, set
forth in ths Act of July 1, ISOZ (32 BUt.
at L. 641, chap. 1302), permitting exces«ve
inclosure or holdings to be reduced or cor-
rected at any time within ninety days aftsr
its Anal ratification.
[Bd. Note.— For other casei, in Indians, Cent
Dig. I tOi Ds& Dls- «3U.]
[No. 61.]
Argued Norember 2, 1010, Decided Janu-
ary 8, 1017.
State of Oklahoma to
which reversed a decree of the Superior
Court of Qrady County, in that state, in
favor of plaintlfls in a suit to impress a
trust upon Indian allotments. Affirmed.
See aame case below, 43 Okla. 74B, 143
Pae. 115S.
The facts are etated in the opinion.
Messrs. Alger Helton, Joseph W.
B«iler, Reford Bond, and C. B. Stnart for
plain tiffs in error.
Uessrm. F. B. Rlddlo and Hariy Ham-
merly for defendant in
J
*Ur. Justice Tan D«vuiter delivered
opinion of the eourt;
This is a controversy arising out of oob-
flicting applications for the allotment of
420 acres of Choctaw and Chickasaw lands.
Ths lands were subject to allotment and all
the applicants possessed tlie requisite quali-
fications, 10 it was merely K queation aa
to who had the better right to select tiia
particular lands. Hie applicants wera
minors and are designated in tlie record
as the Reynolds children and the Hill ehil-
dren. The former were the first to apply,
and the latter Instituted a contest which
ultimately reached the Secretary of the In-
terior. That officer sustained the claims of
the Reynolds children and patents were is-
sued to them. The Hill ehildren then
brought this suit to charge the others aa
trustees and to compel a oonveyance. In
the trial court the plaintiffs prevailed, but
in the supreme court there was a judgment
for the defendants. 43 Okla. 740, 143 Pan.
llfiS.
The chief contention of ths plaintiffs la
that the Secretary of the Interior miscon-
stmed the law applicable to the facts con-
ceded and proved, and that this resulted ill
the issue of patents to ons set ' ' '
M tuple A KST-NUKBBR In all KwHaabered Dlssata A ladaasa
.gic
184
ST SUPKEME COUST REPORTBB.
Oct. :
when thA otlker act wa* entitled to tbem.
Under ft femiliu' rule, U this were true,
the plaintiff* would ba entitled to the relief
Bought. Rosi T. Stevrort, 227 U. B. 630,
636, S7 L. ed. 626, 629, 33 Sup. Ct. Rep.
nSlS. But was there any material miacon-
gatniction of the law by the Secretary! We
• tay material mlsconstructioii, because, iThls
deoiaion was otherwise right, ita force was
not leaeened by anything he may have eaid
eoneeming what waa not material at the
time.
The lands of the two tribea were being
allotted in aeveralty among their members
DDder the agreement set forth in 3 29 of
the Act of June 2S, 189S, chap. 517, 30
Stat, at L. G05, and tiis supplemental agree-
ment embodied in the Act of July 1, 1B02,
chap. 13Q2, 32 Stat, at L. 041. These agree-
ments deflned wbat should bs a standard
allotment, entitled each member to such an
allotment, to be selected by or for him, and
permitted the aelection to be ao made as to
include hia improvemeDta, if any, but with-
out exceeding a standard allotment. When
the conllicting applicationa therefor were
made the lands in controreray were not
wild or vacant, but improved and occupied,
uid the issues in the contest all centered
about the ownership of the improvements.
Both aides claimed to own them, and to
have in consequence a preferred right of
Mlectinn,
The facta found by the Secretary of the
' Interior — and his findings were not with-
out evidence to sustain them^are aa fol-
lows: These lands were part of a much
larger body, containing 12,000 or 16,000
acres, which had been inclosed and occu-
pied by one Campbell In his lifetime. He
was a white man who had married into the
ChidCBsaw tribe. Of the lands so Inclosed
he reduced 1,SOO or 1,SOO acres to cultiva-
tion and used the remainder for paaturing
live atock. Eia dwelling and the improve-
ments connected therewith were upon part
of the inclosed lands, but not npon those
in controversy. He died in 1806, leaving
a widow, two married daughters, and five
minor sons. A guardian for the minors
appointed, but permitted matters to drift
without any particular control by him.
The widow and minor sons continued to
occupy the home place, and she, with the
guardian's assent, looked after the culti-
^vatioD and renting of the tillable flelda and
S made some use of the pasture land. In
■ January, ISSO, for a consideration not chal-
lenged, she surrendered 640 acres of the In-
closed land, with the improvements thereon,
to one Blassingame. liis tract embraced
the lands In controversy. At that time the
Improvements on the latter conaiated of
■urronuding 4-wire fence and two or three
fields reduced to oulUvation, — the tillable
ground being regarded as an improrement.
Blassingame took posaeeaion of all the lands
now In dispute, ditched a large part of
them, brought practically all under culti<
vation, and erected substantial building*
thereon, the estimated cost of this work be-
ing $2,600. He remained in posseaaion until
December, 1S02, and then sold to one Brim-
mage. Two or three montba later Brim-
mage aold to one Beynolds, who went Into
poaeession of all but about 80 acres, pres-
ently to be noticed, and afterwards made
application for the allotment of the lands
to his minor children, the contestees.
At no time during Blaesingame's occu-
pancy was there any serious effort by any
of the Campbell* or by the guardian to die-
poaaeaa him. By a court decree he and hia
family had been adjudged to be memben
of the Chickaaaw tribe and were according-
ly entitled to ahare in the occupancy and
use of the tribal lands. By a later decree
they loat this status, but not until after
the sale to Brimmage. The status of the
latter, aa also that of Keynolds, was auch
that either eonid hold whatever passed by
Blaaaingame'a aale.
In November and December, 1902, Camp-
bell'a widow, three of his sons who then
had attained their majority, and the guar-
dian of two of his sons who were still mi-
nors, sold and quitclaimed to one Hill aU
of tbeir rlgbta in the lands in controversy
and the improvements thereon. Afterwards
Hill made application to have the lands
allotted to his minor children, the contest-
ants. His status was such that he could
hold whatever he received from the Gamp-
bells. 3
•No ImprovementH were added by Hill, save?
a short and unsubstantial fence, and when
the contest was begun he had not been in
posaesaion of any part of the lands, save a
tract of 80 acres or less. He had been la
posaesaion of it less than a year, and had
entered without leave, and In disregard of
such rights as had arisen out of Blassin-
game's occupancy and improvement for
nearly four years. In this way Reynolds
waa prevented from taking posseaaion ^
this tract.
The membera of the Campbell family all
aelected and received other lands for their
allotments, so none of those in dispute were
needed for that purpose.
Upon these facta the Secretary of the In-
terior concluded that the contestees, the
Reynoldi children, had the better claim to
the improvements and therefore the better
right to select the lands for their allot-
ments. In this we perceive ndther any
misconstruction nor any miaapplleation of
the law. We aasume, of courae, that upon
,A_^OOglC
GASQUET y. LAPETBB.
Cunpbell'i death in 1S06 his familf buc
«eed«d to hli rights in these lands; that is,
to his possessory claim and his improve-
ments. But at best the improvements were
meager, and eontlDued occupanc]r was es-
sential to HuatKin the posaessory claim.
This was the situation whan the Act of
June ZS, 1893, supra, came Into operation.
It not only made provision for the allot-
ment in severalty of the tribal lands, but
directed the correction In the meantime of
various practices respecting those lands
that were deemed particularly objectionable.
One of these was the practice of inclosing
or holding possession of tribal lands great-
ly in excess of what would he the approxi-
mate or allotable share of the occupant and
hi* family. By its 17th and ISth sections
the act provided that after the expiration
of nine months from its passage all such
incloBUres or holdings should be deemed un-
lawful, and that proceedings should be
e taken to terminate them and to punish the
goffendeii. The agreement set forth in the
* Sftth section became* effective through tribal
ratification on August 24, 18BS (Woodward
T. Da Oraffenried, 23S U. 8. 303, SB L. ed.
1324, 35 Sup. Ct. Rep. 764), and super-
seded many provisions of the act, so far
as the Choctaws and Chlckasaws were con-
cerned, but it left the 17th and ISth sec-
tions in force as to them, and made new
and more elaborate proviaion for allotting
their lands in severalty. The inclosura or
holding of the Campbell family, embracing
u it did 1Z,000 or 15,000 acres, came with-
in the letter and spirit of the 17th end ISth
■ectionsi for, as was pointed out by the
Secretary of the Interior, that acreage was
several times greater than the approximate
or atlottable ahare of all the members of
the family, including the two married
daughters. Thus it was essential that a
considerable portion of the holding be sur-
rendered, and the time for doing this was
limited. The widow was the head of the
family and apparently its only active agent.
The guardian was inactive, and besides,
vnder the statute (30 Stat, at L. 607, chap.
fil7), the widow was to have precedence
over him in selecting the lands to be al-
lotted to the minor children. Slie there-
fore was in a position to exercise a real
voice in determining which lands should
be surrendered and which retained. It was
In these circumstances that she surrendered
to Blassingame the lands in controversy
with the meager improvements thereon.
Presumably the consideration was adei^uatc,
for no objection on that score was made.
He went into posseaiion In evident good
faith and there waa no real effort to disturb
him. He made extensive, lastinj;, and valu-
able improvements, tlie owncrsliip of which
plainly waa in him. Upon no permissible
theory did the Campbells have any right to
them, legal or equitable, tor they were mada
after the Campbell occupancy ended and at
a time when its continuance would bEV»
been unlawful. By comparison the originat
improvements made by Campbell were In*
considerable, if not entirely negligible, and
were such that they could not well be ro-^
tained after the lands were surrendered B
It follows* that Beynolds succeeded to the*
rights of Blassingame, and that Hill took
nothing by his purchase from the Camp-
bells, made after Blassingame had been in
poaeesslou almost four years, because they
were then without any interest in the land*
or the improvements.
But it is urged that 99 19 to 21 of tb*
supplemental agreement set forth in tht
Act of July ], 1902, supra, permitted ex-
cessive inclosures or holdings to be reduced
or corrected at any time within ninety
days after its final ratiScation, which was
on September 25, 1902, when Blassingama
had been in nndistnrtied possession for con-
siderably more than three years. Upon this
point the Secretary of the Interior was ot
opinion that the agreement of 1002 "waa
certainly not intended to permit Indian citi-
zens to revive and reassert claims long dor-
mant after others had entered into posses-
sion of and highly improved the lands."
We concur in that view.
What we have said suSiciently covers tho
rulings of the Secretary of tiie Interior
npon the questions of law which were ma-
terial to the contest in hand. Criticism is
made of some observations in bis opinion
upon other questions, but th^ need not be
noticed here.
Judgment affirmed.
J. Uartial
CoDRTs «=>394(l)— Ebrob to State Coubt
— Fedebai. Quebtiow — SasPMsiOR o»
Habkab Cobfub.
1. A contention founded upon U. 8.
Const, art. I, 3 0, forbidding the suspension
of the writ of habeas corpus, presents no
Federal question which will support tbo
appellate jurisdiction of tbe Federal Su-
preme Court over state courts, sinca this
provision is not restrictive of state, but
only of Federal, action.
[«a. Nate— For oth«r cans. Ms Courts, Cent.
Dig- i IMS; Dec Die- «=339in)-]
CoUBTB «=j394(I0) — Bbbob to Statk
Couar— FaivoLous Fedbbal Question—
— CoKsTBTJcnoi* or Statb CoNSTrruTioi*
AND liAWS.
2. There is nothing in tbe clauses of U.
S. Const. 14th Amend., guarantying due
^safor othar
It topic ft KEY-NUMBER In ■]
j-NumbBred Dltssti ft Index**
.gic
87 SUPREME COURT REPORTER.
Got. Tksm,
process of law and the equal protcctioa
ot the laws, which converts an iwue respect-
ing the jurisdiction of a state court under
U»e Constitution and statutes of the state
court of laat resort is binding upon the Fed-
eral Supreme Court, and such qusetion,
therefore, will not support » writ of error
from that court to a state court.
raa. Not«.— For oUar cues, ■•• Courts Cmt
Dig. t lOBB; Dec. Dig. •3»2a4(l(IJ.]
COUBTB «=t396<7)— SlBBOB TO Statk Goubt
— Fedebal QUEMiON—PntL Faith *hd
Cbedit.
3. The claim that a state court denied
to the judgment of a sister state the full
faith and credit to which it was entitled
under U. S. Const, art 4, 9 1, and U. S.
Rev. Stat 9 905, Comp. BUt. 1913, g 1518,
is so devoid of merit as not to serve as the
basis of a vrit of error from the Federal
Supreme Court to liie state court, where
the effect which such judgment has by law
or usage in the courts of the state of its
rendition was not in tmy way brought to the
Attention of the court below.
[Ba. Nota.— For othsr ouh, sea Oaurts, Cant.
Die. t 1M»: Dm- Dig. «=i3>(l(T).]
[No. 118.]
Argued and submitted November 10, lOlS.
Decided January 8, 1917.
IN ERROR to the Supreme Court of the
State of Loolstana to review a judgment
which affirmed a judgment of interdiction
rendered by the Civil District Court for the
Parish of Orleans, in that state. Dismissed
for want of jurisdiction.
See same case below, 136 La. 667, B8 So.
89.
The facts are stated In the opinion.
Messrs. WlllUm Winans Wall, Ed-
ward N. Pugh, J. C. Oilmore, and Thomas
Gilmore for plaintiff In error.
Messrs. George I>enegre, Victor Imovj,
and Henry H. ObaSe for defendants la
* • Ur. Justice Van Devsnter delivered the
opinion of the court;
In a proceeding against the plslntlff in
error, wherein he was fully heard, the civil
district court of the parish of his residence
and domicil pronounced a judgment of Inter-
diction i^inst him. He appealed to the
supreme court of the state, which affirmed
the judgment (130 I«. 9G7, 88 Bo. 89), and
thereafter he sued out this writ of error.
Our jurisdiction is challenged by a motion
to dismiss.
There are three assignments of error, and
the facta essential to an understanding of
two of them are these: After the judgment
of Interdiction, and before the hearing upon
the appeal, the plaintiff In error, who was
ia enstody under an order of the criminal
district court of the parish, committing him
asylum as a dangerous insane person,^
secured his release from su<Qi custody g
through an'orlglnal proceeding in habeas*
corpus in the court of appeal of the parish,
which adjudged that he had recovered his
sanity. He then called the attention of the
supreme court to this judgment and insisted
that it was decisive of his sanity at a tims
subsequent to the judgment of interdiction,
and was res judicata of the issue presented
on the appeal. But the supreme court held
that under the state CoDstitution and stat-
utes the court of appeal was without juris-
diction, and therefore its judgment was not
res judicata. In the assignments of error it
is said of this ruling, first, that it practical-
ly suspended the privilege of the vrrit of
habeas corpus, contrary to § 9 of article 1 of
the Constitution of the United States, and,
second, that It denied the plaintiff in error
the due process and equal protection guar-
anteed by the 14th Amendment, In that it
did not give proper effect to oertain pro-
visions of the Constitution and statutes of
the state, bearing upon the jurisdiction of
the court of appeal and the supreme court.
Both claims, in so far as the Federal Consti-
tution is concerned, are so obviously ill
founded and so certainly foreclosed by prior
decisions that they afford no basis for in-
volting our jurisdiction. Section 9 of article
1, as has long been settled. Is not restrictive
of stato, but only of national, action. Munn
v. Ulinois, 94 U. 8. 113, 135, 24 L. ed. 77,
87; Morgan's L. &T.R.k S. 8. Co. v. Board
of Health, 113 U. S. 456, 487, 30 L. ed. 237,
242, 6 Sup. Ct Rep. 1114; Johnson v. Chi-
cago A P. Elevator Co. 119 U. S. 388, 400,
30 L. ad. 447, 461, 7 Sup. Ct. Rep, 254. This
is also true of the 6tli Amendment. Barron
V. Baltimore, 7 Pet. 243, 8 I., ed. a72i
Booth T. Indiana, 237 U. S. 39J, 394, 69 L.
ed. 1011, 1010, 35 Sup. Ct. Rep. 617; HunUr
T. Pittsburgh, 207 U. 8. IBl. ITO, 62 L. ed.
151, 168, 28 Sup. Ct. Rep. 40. And. as our
decisions show, there is nothing in ths
clauses of the I4th Amendment guaranty-
ing due process and equal protection whioh
converts an Issue respecting the jurisdiction
of a state court under the Constitution and
statutes of the state into anything other
than a question of state law, the decision of
which by the stato court of last resort is
binding upon this court. Iowa C, R- Co, t.q
Iowa, 160 U. S. 389, 393, 40 L. ed. 407, 409,*;
16 Sup. Ct. Rep. 344 'Castillo v. McConnico,*
168 U. 8, 674, 683, "42 L. ed. 622, 62S, 18
Sup. Ct. Rep. 229 ; Rawlins v. Georgia, 201
U. 8. 638, SO L. ed. 8DS, 20 Sup. Ct. Bep.
500, 6 Ann. Cas. 783 ; Burt v. Smith, 203 U.
8. 129, 133, 61 L. ed. 121, 126, 27 Sup. Ct
Rep. 37; Standard Oil Co. v. Missouri, 22*
U. S. 270, 280, 231, BO L. ed. 760, 707, 76B, 32
^sFor othsr e>
I* topic * KST-NUUBER In all Kar-NamMrsd DlgwtS
fWSgic
1914.
DICKSON T. LUCK LASTD OO.
167
Sap. Ct. Rep. 406, Ann. Cu. 1913D, 638;
De Bsarn t. Safe Depoatt k T. Co. 283 U.
& 24, 34, 58 L. «d. 833, 837. 34 Sup. Ct. Rep.
S84; McDonald t. Oregon H. it. Nav. Co. 23:1
U. S. S«5, 669, 870, 58 L. ed. 114S, 1148,
1149, 34 Sap. Ct. Sep. 772; Uluouri t.
LenU (Bownuui v. Lewti) 101 U. 6. E2, 30,
29 L. «d. 989, 992.
The facta bearing upon the remaining ai-
■Ignment are aa followB: After tlie judg-
ment of afflrmanee bjr th« inpreme court,
and during the pendency of a peti-
tion for rehearing, the plaintiff in
error, claiming that upon his release
from cuatodj by habeaa corpus he had
remored to, and become a reaident and
citizen of, Shelby connty, Tennessee, peti-
tioned the probate court of that county for
an inquisition respecting his sanity. The
court entertained the petition and -within a
day or two rendered a judgment thereon
finding tbat the plaintiff in error had be-
come a resident and citizen of Tennessee,
adjudging that be was sane and able to con-
trol his person and property, and declaring
that any disability arising from the pro-
ceedings in Louisiana was thereby removed.
He then brought the proceedings In Tennes-
•ee — all certiSed conformably to the lair of
Congress — to the attention of the Louisi-
ana supreme court by a motion where-
in he insisted tbat, under the Constitution
of the United States, art. 4, S 1. and the
law passed by Congress to carry it into
effect. Rev. Stat. % SOS, Comp. Stat. 1913, %
1519, the judgment in Tennessee was con-
clusive of his residence and citizenship in
that state and of hif sanity and ability to
eare for his person and property, and that
In consequence the interdiction proceeding
should be ^ated. But the motion was de-
nied, along with the petition for a rehearing,
and in the assignments of error it la said
Uiat, in denying the motion, the court de-
diued to give the judgment in Tennessee the
lull faith and credit required by the Consti-
^tntion and the law of Congress.
^ There are several reasons why this as-
* gignment affoTds*Da basis for a review here,
hut the statement of one wilt sulTice. What
the Constitution and the congressional
onactment require Is that a judgment of a
court of one state, if founded upon adequate
Jurisdiction of the parties and subject mat-
ter, shall be given the same faith and credit
In a court of another state that It has by
law or usage In ths courts of the state of
Its rendition. This presupposes tbat tba
law or usage In the latter state will be
brought to the attention of the court In the
other State by appropriate allegation and
proof, or In some other recognized mode;
for the courts of one state are not presumed
to Icnow, and therefore not bound to take ju-
dicial notica of, the lawa or usage ot
another state. Hanley v. Donoghue, 116 V.
S. I, 29 L. ed. fi3S, 6 Sup. Ct. Rep. 242;
Chicago i A. R. Co. r. Wiggins Ferry Co.
119 U. S. 81B, 30 L. ed. 619, 7 Sup. Ct. Rep.
398; Lloyd v. Uattbews, 156 U. S. 222, 227,
39 L. ed. 128, 130, 15 Sup. Ct. Rep. 70;
Western Life Indemnity Co. r. Rupp, 233
U. S. 261, 276, 69 L. ed. 220, 22S, 35 Sup.
Ct. Rep. 37. Here the law or usage in
Tennessee, where the judgment was ren-
dered, was not in an; way brought to the at-
tention of the Louisiana court, and there*
fore an essential atep in invoking the full
faith and credit danse was omitted. In
this situation the claim tbat ths Louisiana
court refused t« give effect to that clause i»
ao devoid of merit as to be frivolous.
Writ of error dismissed.
LDCK LAND COMPANY.
IirnuiTs *»13— CoNOLusiVEKKsa or Dici-
BiON or Land Dipabtueht — AoE or
Ihdujt Allotieb.
Xbe administrative finding that an
Indian allottee had attained bis majority,
which is imported from the issuing of a
patent to him in fee under the provisions of
the Act of March 1, 1907 (34 SUt. at L.
1016, chap. 2286), declaring tbat all re-
strictions as to tbe sale, encumbrance, or
taxation of allotments within tJie White
Garth Reservation in the state of Minne-
sota, heretofore or hereafter held by adult
mixed-blood Indians, are removed, and that
BUch mixedbloods, upon application, shall
be entitled to receive a patent in fee simple
for such allotments, — is not to be taken as
decisive of the allottee's age for any other
purpose than tbat of fixing his right to re-
ceive the full title, freed from all reatrio-
tions upon its disposal which Congress had
Imposed, and tbe validly of a conveyance
subsequently executed by the patentee must
be tested by tbe state laws governing the
transfer of real property, fixing the ageof
majority and declaring the disability of
minors, these being among the laws to which
the allottee became subject under the pro-
visions of tbe Act of May 3, 1906 (34 Stat.
at L. 182, chap. 2348, Comp. Stat. 1918,
g 4203), that when an Indian allottee la
given a patent for his allotment, be shall
have the benefit ot, and be subject to, ill
the laws, both civil and criminal, of the
Submitted December 6, 1916. Decided Janu-
ary 8, 1917.
i< topic * KBY-NUHBER In all K*r-Numb«r«a Dt|wU ft I°4ai« -. -c , ->
108
Vt EUPBBME COURT REPORTEB.
Oor. Tbv,
IN ERROR to the Supreme Court of the
State at Minnesot* to review a judg-
mait which aSirmed a judgment at the Die-
trict Court of Becker Counter, in that state,
in favor of plaintiff in an action to deter-
mine adverse claims to real property. Af-
See Mme case below, 132 Ulnn. 396, 1S7
K. W. 665.
The facta are stated In the opinion.
MeBtrs. Frank Real;, Clyde R. White,
and Charles C. Haupt for plaintiff in error.
Mr. Marsball A. Spooner for defendant
■ *Ur. Juittce Tan Devanter ilelivered the
opinion of the court:
A tract of land in the Whit« Garth In-
dian Reservation in the state of Minnesota
U here in dispute. It was allotted and pat-
ented to a mixed-blood Chippewa Indian,
and both parties claim under him. The
allotment was made under legislation pro-
viding that the United States would hold
the land in trust for the period of twenty-
five years, and at the expiration of that
period would convey the same to the al-
lottM or hia heirs by patent in fee dis-
charged of snch trust and frea of all charge
«r encnmbrance, and also that if any con-
««yanee should be made of the land, or if
^any contract should be made touching the
J: lame, before the expiration of the trust
• period, such conveyance or contract should
be absolutely null and void. 24 Stat, at L.
388, chap. 119, S B, Comp. Stat. 1B13, g
4201; 26 Stat, at L. 042, chap. 24, S 3-
Afterwards, upon the allottee's application,
a fee-timple patent was issued to him under
a provision in the act of March 1, 1907,
chap. 2286, 34 Stat at U lOlG, 1034, de-
claring: "That all restrictions as to the
sale, encumbrance, or taxation for [of] al-
lotments within the White Earth Reserva-
tion In the state of Minnesota, heretofore
or hereafter held by adult mixed-blood In-
dians, are hereby removed, and . . . such
mixed bloods upon application shall be en-
titled to receive a patent In fee simple for
■uch allotments." Following the issue of
this patent, and on dates considerably sepa-
rated, the allottee executed two deeds for
the land, each to a distinct grantee. The
plaintiff in this suit claims under the sec-
ond deed and the defendant under the first.
Tbt object of the suit is to obtain an ad-
judication of these adverse claims. In the
trial court the plaintiff prevailed and the
judgment was affirmed. 132 Minn. 306, 157
N. W. 655,
In both courts the decision was put upon
the ground that the first deed was made
while the allottee was a minor, and the
second after he became an adult, and that.
under the law of the state, the deed given
during hia minority was disafiirmed and
avoided by the one given after he became
adult. The only Federal question pre-
sented or considered was whether the pat-
ent was conclusive of his having attained
bia majority at that time. The defendant
contended that it was, but the ruling was
the other way, and the plaintiff was per-
mitted to show the allottee's age by other
evidence. The defendant concedes that, if
the patent was not conclusive upon that
point, the judgment must stand.
Ilie validity of the patent is not assailed.
On the contrary, both parties cl^m under
it, one as much as the other. Nor is it
questioned that tbs allottee received the*
full title, freed from all the reatrictionsM
upon its disposal which Congress had Ira-*
posed. Thus the question for decision is
whether the patent was to be taken aa de-
termining the allottee's age for any purpose
other than that of fixing his right to receive
the full title, freed from all the reatrictions
imposed by Congress.
There is no mention of his age in the
patent, and yet it must be taken as implied-
ly containing a finding that he was then
an adult This is so, because every patent
for public or Indian lands carriea with it
an implied alDrmation or finding of every
fact made a prerequisite to its issue, and
because the provbion in the act of 1907
made the majority of the allottee a pre-
requisite to the iasue of this patent But
such implicationa, although appropriately
and generally indulged In support of titles
held under the government's patents (Steel
V. St LouU Smelting ft Ref. Co. 108 U. 8.
447, 460, et seq., 27 L. ed. 226, 227, 1 Sup.
Ct. Rep. 38B), are not regarded as other-
wise having any conclusive or controlling
force. They are not judgments in the sense
of the rules respecting estoppel by judg-
ment, and we perceive no reason for giving
them any greater force or influence than
has been sanctioned by prior decisions.
The provision in the act of 1907, under
which this patent was issued, does not make
for a different conclusion. In so far as it
is applicable here. It does no more than to
withdraw a particular class of allotmenta
from the restrictions imposed by Congress,
and to authorize the immediate issue of
fee-simple patents for them. Although say-
ing nothing on the point, it evidently in-
tends that the administrative oMcera shall
be satisfied in each instance before fsauing
the patent that the allotment belongs to tbe
particular claaa; and so the patent when
Issued carries with It an implication that
those officers found Ue allotment to be of
that class. But the provision gives no war-
rant for thinking that this finding should
,A_^OOglC
UlS.
ABAMSON T. OILLIL&ND.
100
havi my greater effect or wider applica-
tion tbAn U accorded to the flndbg iinpHed
f from the issue ot other patents.
f •We conclude, therefore, that the adminia-
trative finding which this patent Imports
was not to be taken as decisive of the al-
lottee's age for any purpose other than
that of flxing his right to receive the full
title, freed from all the restrictions upon
Its disposal which Congress had imposed.
With those restrictions entirelj removed
and the fee-simple patent iaaaed. It would
■eem that the situation was one in which
all questions pertaining to the disposal of
tha lands naturally would fall within the
scope and operation of the laws of the state.
And that Congress so intended is shown
by the Act of May 8, 1900, ebap. 2348, 34
Btat at L. 182, Comp. SUt. 1S13, § 4203,
which provides that when an Indian allottee
is given a patent in fee for his allotment
he "shall have the heneflt ot and be subject
to all the laws, both civil and criminal,
of the state." Among the laws to which
the allottee became subject, and to the
benefit of which he became entitled, under
this enactment, were those governing the
transfer of real property, Hxing the age of
majority, and declaring the disability of
Judgment afiirmed.
DAVID C. GILLILAND.
Affcaland Ebeob «=»1009(3)— Rrtiew of
Fin DIN OB— P Air NT Bun — Pbiok Pao-
DucTioN AND Use.
So far as the flnding of a Federal dis-
trict court judge that the defendant In a
patent infringement suit had not shown
prior production and use of the invention In
question depends upon conflicting testi-
mony, or up«n the credibility of witnesses,
or so far as there is any testimony consist*
•nt with the flnding, It must be toeated aa
-nnassaJlable on appeal.
[Kd. Nota.— Tor other coan, •«• Api>eal sad
Xrror. CsuL Dli. | J3T2; Dec. Dig. ^salOO)(l).]
[No. 398.]
Submitted November 13, 1918. Decided
January 8, 1017.
0".
\N WBIT of Certiorari to the United
f States Cir«nlt Court of Appeals for
the Eighth Circuit to review a decree which
reversed a decree of the District Court for
the Eastern District of Missouri in favor
ot plaintiff in a patent infringement suit
Beversed.
See same case below, 141 C. C. A. $41,
t27 Fed. 83.
The facts are stated in the opinion.
Messrs. Percr B. Hills and Douglas W.
Robert for petitioner.
Messrs. James A. Oarr and T. Perej
Carr for respondent.
Mr. Justice Holmes delivered the opin-
ion of the court:
This is a suit brought by the petitioner
for the infringement of a patent for a vulca-
nizing device, "including a vulcanizing mem-
ber constructed to retain a combustible fluid
upon and in contact with its upper surface,
the lower surface of the vulcanizing member
being adapted to be applied to the material
to be vulcanised." In other words, then
upper side of tha upper of two sheets ofj^
metal, bet weetf* which, when heated, the ma.*
tcrial is to be vulcanized, is fashioned as a
cup in which gasolene can be burned to beat
it. The specific character of the machine has
made of it a valuable success. The respond-
ent admitted making and selling devices
like the plaintiTs, but alleged and testified
that he made them first. In a previous suit
by the plaintiff, the plaintiff and the present
defendant tcBtlfled and District Judge
Geiger gave the plaintiff a decree. In this
case again the district judge in his turn
saw the defendant and heard additional evi-
dence, but, after criticizing it, said that his
own judgment was that the new testimony
would not have changed Judge Geiger's
opinion, and, while professing to follow that
opinion, according to the usage of district
judges in such matters, evidently, to our
mind, signified that he agreed with Judge
Geiger, although in terms only following
what had been done. The circuit court ot
appeals treated the action of the district
Judge as a mere yielding to the authority
of the former decision, and reversed the
decree upon the evidence as it stood in
print.
We are unable to agree with the circuit
court of appeals. There is no question that
the plaintifT did not copy the defendant, that
he put his Invention Into the market in No-
vember, 1011, and that the defendant did
not put out his Tulcanizer until February or
March of the following year; hut the de-
fendant says that on August 7, IBll, twelve
days before the plaintiff made the drawing
that depicted his invention, he had had
castings made that are substantially
identical with the plaintiff's device and
identical in particulars that the plaintiff's
patent made material, but that the defend-
ant declared to answer no useful end. Ths
plaintiff's cup had pins projecting from the
bottom, arranged in circles around a central
one, which his specification described as
serving to conduct the heat of the ttame-
downwards into the vulcanizing plate and
the combustible fluid. The defendant's
II topic A KEr-rfUMBER Id all Ksr-Nnisberad DISMts A Indss
gle
37 SUPUEME COUai KEFUBXEB.
Ooi. Ian,
* original caating altowed pins of timllcT ar-
rangement. He explained that the aimilarity
TU accidental, that the pins nera of no uh^,
1)ut that "we expected to tell the poor, ud-
■lupecting public that they conducted tlie
hnat ... to the bottom of the vulcan'
iEor," "which ie a false atatement." It needa
no emphasJB to point out the improbability
that the defendant, at nearly the same time
as the plaintUT, should have hit by accident
upon the same configuratioa in striking par-
ticulars that he regarded as immaterial,
and, merely to deceivs the public, have in-
Tented the same by no means cAvioua
«zplauation that was offered serloiuly by
the plaintiff, but that the defendant regard-
ed as false. The improbability Is intensi-
fied by a further coincidence also explained
by the defendant aa accident. The luga by
which the cup waa to be fastened to the low-
er snrface happened to faoe in oppoaite
directions in the plaintitT'a device, although
later they were made to face the same way.
The defendant 'a alao faced in opposite
directiona. It aurpaaaes the power of be-
lief that a man who teatified that there was
nothing In the invention, that It was merely
arranging to fasten a ladle to a board,
should have come by pure chance to make so
«act a replica of the plaintiff's apecISo
form. Inapection of the two caitings showa
more dearly than can worda that one must
have been a copy of the other. The plaintiff
and defendant lived far apart. Adamson
had no chance to copy Ollliland. On the
other hand, after Adamaon'a Tulcanizera
were made public, Gilliland eould copy
them. Tie man who made the caetinga
ahows that the resemblance was even more
complete than we have stated, by reason of
the presence of a base plate, although Qilli-
land denies that be bad one at that time.
There Is no doubt that the defendant had
eastings made. The esaentlal question is
the time when they first were made. We
shall not discuss the evidence of those con-
cerned in the making beyond recurring to
u the Impression that the witnesses made upon
?the diatrict judge, and •mentioning that a
dray ticket relied upon as fixing that data
appears to have been open to grave sus-
pieioD from its character, marking, and
other details. Considering that a patent
haa been granted to the plaintiff, the case
ie pre-eminently one for the application of
the practical rule that W far as the finding
ot the master or judge who saw the wit-
nesses "depends upon conflicting testimony
■or upon the credibility of witnesses, or so
far as thne ie any testimony conaiatent
with the finding, it must tie treated aa un-
assailable." Davie v. Schwartz, 165 U. S.
•«3I, 636, 3S L. ed. SSS, 2S1, 16 Sup. Ct. Rep.
S3T. The reasons for requiring the defend-
' ant to prove his case beytmd a reasonable
doubt are stated in the ease of Barbed Wire
Patent (Washburn k U. ^g. Co. v. Beat
'Em All Barbed Wire Co.! 143 U. S. 276,
264, 36 L. ed. 154, IBS, 12 Sup. Ct. Bop.
443, 450. Upon these considerations and a
review of the evidence we are of opinion that
the decree must be reversed.
Decree reversed.
(M2 n. S. BU
U1NK£AF0LIS k ST. LOUIS RAILROAD
COMPANY, Plfl. U Err,
GEORGE H. WINTERS.
Afpeai. avd Bbbob 4s>882(3) — Bksoaa
Waived ob Cdsed Below.
1. Error, if any, in baaing a Tecoverr
In a pertonal-iojury action upon the Fed-
eral Employers' Liability Act of April 2i,
1S08 (3S Stat, at L. Sg, chap. 14&),i doea
not entitle the defendant to have the judg-
ment reversed, where such defendant in no
way saved ita rights to deny that the par-
ties were engaged in interstate commerce at
the time of the accident, or to object to the
S plication of the Federal statute, but, on
t contrary, Invoked and relied, without
qualification, upon that statute and the
rights that, because of that statute, It sup-
posed itself to possess.
[Bd. NoM. — Var Mhgr caHi, ee* Appsal and Br>
ror. Cent. DIs. |g 3i>3, SSM; Dec DIB. a=3Bffi(lJ.l
COMUERCB e=>2T(8)— UaSTEK AND SEBVAUT
— EuPLOTEBs' LiABiLnr — When Sbev-
ANT IS "KNaAaSD IK IflTEBCTATX COM-
HXBCK."
2. A maehiniet's heater, engaged, while
making repairs in the roundhouse, upon an
engine which bad been used in hauling over
the railwar company's lluea freight tralna
carrying both intrastate and interstat*
freight, and which was used in the same
way after the accident, waa not then em-
ployed in interatate commerce within the
meaning of the Federal Employers' Liabil-
ity Act of April 22, 1B08 (36 Stat, at L. 06,
chsp. 149 [Comp. St 1&18, || 8657-8665]).
^veming the liability of an Interstate oar-
rier for injuries to ita employee* whoa em-
ployed in interstate ci
lEd, Kota.— For oUitr i
Dw. Dli. a=s,rm.
ffor oUier daflDltions, see Words and Pbraset,
First and Second nrtes, Istantala Conunuca.]
[No. 420.1
Argued December S, lOlfl. Deelded Janu-
ary 8, 1817.
IN ERROR to the Supreme Court of the
State of Minnesota to review a judg-
mmt which, on « third appeal, afllrmed a
judgment of the District Court of Samaey
Coun^, in that state, In favor of plaintiff
in a peraonal -injury actlcm against an inter-
state carrier. AfiSrmed.
Bee same ease below, on first appeal, 1S8
Minn. 280, 148 N. W. 106; cm second appeal,
131 Minn. 181, 154 N. W. 064; on third f
peal, 131 Minn. 496, 165 N. W. 1103.
The facta are stated in the opinion.
I* loplc * KBY-NBHBBR iD aU Kej-NuiubCTad CtxeiU * Indaietl
> Oanp. St. Ull. II
■gic
1»1«.
UNNEAFOLIS ft ST. L. K. OU. r. WWTEBS.
ITl
IfMni. Frederick U. Ulner «nd Wil-
Uun H. BTenwer for pUinUfl In error.
Mewrt. Homptirer Barton uid John H.
^ Ksjr for d«fenduit In error.
• ■ Hr. Justice Holmea delivered the opln-
ton of tti« court:
ThU !■ ui action for perHona] Injuries suf-
fered by the plaintiff, the defendant tn
error, at Marshalltowu, Iowa, on October
EI, 1912. The decisions below will be found
In 128 Minn. 2S0, 14S N. W. lOS, and 131
Uinn. 181, 1G4 N. W. Mi. Tha declaration
allied that at the time the plaintiff was
cmplojed by the defendant in Interstate
commerce, although it went on to set forth
lawe of Uie state ol Iowa ooneemlng the
llabllitj of railroads and eontributorj negli-
gence. It alleged that the injury was caused
bj the negligence of the defendant in fail-
ing to fuiuieb a reasonably safe Inttrument
for the work that the plaintiff was set to
do. The answer denied, among other things,
that the plaintiff was employed in Interstate
commerce, and set up the plaintiff's negli
gence and assumption of the risk. In the
eouree of the trial, Uie facts touohing the
employment having been agreed, the counsel
for the defendant intimated that he might
want to take the question whether the com-
HiBcrce was interstate to this court, but said
5 no more about It, and later moved to dlimies
the enit npoa'the ground, among others,
that the plaintiff assumed the risk, advert-
ing to a decision that that defense was open
mider the Federal act. Later still the pre-
siding judge in his charge, without objec-
tion, told the jury that the action was tried
nnder the law of the United States; and In
the assignment of errors to the supremu
court of the state, one error aaalgned was
that the jury was instmeted that they
might find a leta than unanimous Terdict
In a suit founded upon the Federal Em-
ployers' Liability Act, — a proposition dis-
posed of since the trial by a decision of this
court. Minneapolis & St H R, Co. t. Bom-
bolis, £41 U. S. 211, 60 L. ed. SSI, LJLA.
I017A, 8G, 3S Sup. Ct. Rep. GOS.
It is true that error is assigned because
the court afDnned its opinion rendered after
a former trial. But In the assign-
ment of errors to the state court
no such error is alleged, and beyond
judicial red tale that the evidence, with
smne exceptions, was the same at both
trials, and quotations from the decision as
to negligence, the record ihowa nothing but
a casual statement of counsel as to what
wae done or ruled before. In short, at the
trial the defendant in no way saved its
righta to deny that the parties were engaged
in lutovtate commerce at the time of the
accident, or to object to the application of
the Federal statute. On ths contrary, with-
out qualification It invoked and relied upon
that statute and the rights tliat, because
of that statute. It supposed itself to pos-
sess. There Is an amhiguoua assignment
of error that the supreme court of tlie state
erred in holding as matter of law that ths
plaintiff was engaged in interstate toni-
merce, and in holding that ttie question of
the plaintiff's assumption of the risk was for
the Jury, "thereb; depriving the appellant
of a ri^t guaranteed to it under the pro-
visions of" the federal Employers' Liahilitj
Act. But if the Orst clause is more than an
introduction to and reason tor the second,
then, as we have indicated, no foundatioHcs
for anch an assignment was laid in the pro-^
ceedings before the etate courts.* Therefore*
even if the courts and partlee were wrong
about the proper basis for the suit, that fact
does not entitle the defendant to have the
judgment reversed. It cannot complain of
a course to which it assented below.
The defendant, however, as has beat seen,
did save the questions concerning its right
to a unanimous verdict and the assumption
of risk nnder the act of Congress, and also
concerning the evidence of its negligence, all
of whiob, of eouree. In a case arising under
the act, could be brought to this court. la
the present case the facts upon which the
act of Congress was supposed to apply are
stated and were agreed, so that although,
tor the reasons that we have stated, an error
on that point would not entitle the defend-
ant to a new trial, it necessarily must be d»
termined wheQier they show a foundation
for the attempt to come here upon the qne>>
titms that were reserved. Tie agreed state-
ment is embraced in a few words. The
plaintiff was making repairs upon so en-
gine. This engine "had been used in the
hauling of freight trains over the defend-
ant's line . . . which freight trains
hanled both Intrastate and interetate com-
merce, and It was so used after the plain-
tiff's Injury." The last time before the in*
jury on which the engine was used was on
Ocbober 18, when it pulled a freight train
into Marshalltown, and it was used again
on October 21, after the accident, to pull a
freight train out from the same place. That
is all that we have, and is not sufficient to
bring the case nnder the act. This Is not
like the matter of repairs upon a road
permanentiy devoted to commerce among
the states. An en^e, as such, is not
permanently devoted to any kind of traffie,
and it does not appear that this engine was
deetined especially to anything more definite
than such businesa as it might be needed
for. It was not Interrupted in an inter-
state haul to be repaired and go on. It
simply had flnished some interstate busiuess
,A_.OOglC
m
ST 8UPBEME COURT REPORTBB.
ooi. :
Ita
gaud had not yet begun upon an; other.
• next work, bo far as a.ppea», might'be inter-
■tat« or confined to Iowa, as it should hap-
pen. At the moment it was not engaged in
either. Its character as an instrument o(
eonunerce depended on its emplofment at
the time, not upon remote probabilities or
upon accidental later erenta.
Judgment affirmed.
(Ma u. 8. tsn
BAVINOS BANK OF DANBURY, o( Dan-
bury, Connecticut, Plff. in Err.,
DIETRICH B, LOEWE, as SurviTing Part-
ner o( the Finn o( D. E. Loewe & Com-
pany.
Oabkibbuknt «=I15— Eptkct Reaohzd—
Intebcst on Savinos Bane Deposits.
I. A garnishment of savin^^ bank de-
posits reaches the so-called dividends ao-
erued since the writ was served upon the
garnishee, where, under the local laws, a
garnishment, while reaching only effects in
the hands of the garnishee at the time of
the right to release the attachment by giv-
ing a Dond equal to the value of the effects
attached.
[Ed. Not*.— F^r Dtber csMii, tee QarnUluuuit,
Cut. DIs. I 234: Dec. Dig. ^=>U5.]
Oabnibument C=3 109— Effects Reached
— AsaioNMBnT.
2. An assignment of savings bank de-
posits after they had been garnished baa no
effect upon the rights of the attaching credi-
tor to the BO- called dividends accruing after
the service of the garnishment process.
[Ed. Note.— For other ci.Bes. Me aarnlshmeat,
Cent. Dig. I! ZZT-S2S; Dec. DH. «=>I09.]
[No. 713.J
Argued December 11, lOia. Decided Janu-
ary 8, 1917.
■ N ERROR to the United States Circuit
J. Court of Appeals for the Second Circuit
to review a judgment which modified a
judgment of the District Court for the Dis-
trict of Connecticut In scire facias to re-
cover savings bank accounts attached by
truates process, bo as to Include the divi.
dmds accruing after the service of the writ
of garnishment upon the gamiahee. Af-
firmed.
See same case below, L.R.A. IQITB, 838,
236 Fed. 444.
The facts are stated in the opinion.
Heurs. William F. Tammaay and John
H. li^ht for plaintiff In error.
Uessra. Walter Gordon Merrltt and
Daniel Davenport for defendant in error.
* Mr. Justice Holmes delivered the cqtin-?
ion of the court:
This is scire facias, where the statutes of
Connecticut provide a similar remedy, to
recover savings hank accounts attached by
trustee procesa in the hands of the pUIntiS
in error, judgment having been recovered
in the original suit by the defendant in
error and execution ti^en out. The gar-
nishee submitted itself to the judgment of
the court, admitting deposits, but setting
up that after the attachment the accounts
had been aasigned to the United Hatters
of North America, and that ths assignee
claimed the dividends that had accrued sine*
the writ was served. The sAsignee was i^t-
ed, appeared, and made the claim. The prin-
cipal, except an item of f428.S2, now has
been paid, and ths right to ths dividends
Is the only question In the case. The cir-
cuit court of appeals decided that the at-
taching creditor had the better right.
UUA. 1917B, 638, 236 Fed. 444,
There la no doubt that under the statutes
of Connecticnt, as usual elsewhere, a gBr>
nishment reaches only effects of ths defend-
ant in the hands of the garnishee at the
time of service upon the latter, as distin-
guished from contingent liabilities that do
not become effects In the garnishee's hands
until a later time. Qen. 8tat. 1802, SS 680,
931. But the ctKumonest object of such at-
tachments ia a right, regarded as a thing
within reach of the process because of ths
power of the court over the person subject
to the corresponding obligation. Barber t.
Morgan, 84 Conn. 018, 823, 80 Atl. 791,
Ann. Cas. 1912D, Q61; Osbora v. Lluyd, 1
Root, 447; Harris v. Balk, ISS U. 8. 215,
222, 49 L. ed. 1023, 1026, 26 Sup. Ct. Rep.
628, 3 Ann. Cas. 1084. If the right is rest-
ed, the attachment reaches the whole of it,
and tlierefore, there being no doubt that a
debitum in prKsentl solvendum in futuro
could be attached (Qen. SUt. S 936), It
was admitted at the argument that in the
case of an interest-bearing debt the subse-
quently accruing interest was held as well
as the principaL The obligation to pay the*
one stands on the same footing as the ob1i-S
gation to pay the •other; the two are one;*
they are limbs of the same contract; and
there ia no reason for splitting them up.
Adams v. Cordis, 8 Pick. £60, 269. It may
be true that, apart from statute, the at-
tachment of stock in a corporation would
not hold subsequently declared dividends;
but, if so, that is because the stockholders
have no right to the dividends until they
are declared, which may never be if the di-
rectors see fit to convert earnings into capi-
tal. Gibbons v. Mahon, 136 U. S. 64S, 34
L. ed. 525, 10 Sup. Ct. Rep. 1057. Compare
Korton V. Norton, 43 Ohio St. 609, S2S, 3
i« topic A KBT-NUHBBB la all Kar-Humbmd DiiMts A Isdsias
1B18. CmCAQO, M. & ST. F. S. CO. t. STATE PUBUC UTILITIEa OOIL
1T»
N. B. S4S. The question then narrowa it-
aeti to wbether Uie BO-called dividends of
•KVingt banks are analogous to diTidenda of
A corporation, or to intereat due bj contract
upon a debt.
The plaintiff in error it an ordinvy lav-
ings bank iritbout atockhoMere. It is sub-
Jeet to a fiduciary duty to hold and inveat
for the bene&t of its depoaitara all the funda
that tt receives, and to pa; over to tbem all
the net income earned, after the retention
of enough to constitute a amall safety fund.
Qcn. Stat. 3§ 3440, 3441. This duty certain-
Ij la no less because created by statats rath-
er than by contract. It is piarded by other
■tatntea limiting the inveatmenta allowed
and requiring inspection, with the objeot
of making principal and income secure rath-
er than large. Oen. SUt. gg 3428, 34S7. The
tninimum amount of the dividends generally
is aa fixed in practice as if it were written
In a bond. The practical certainty that a
savings bank will pay is greater. In abort,
than that an average debtor will pay 8 per
cent according to his promise in a note. The
only element of uncertainty other than that
conditioning all future conduct is the posal-
bilitjt that the dividend may be greater than
that which experience has led the depositor
to expect. He has a vested right to the
dividends, — a vested right that the corpora-
tion should take the most prudent steps to
secure them, with an identiilcd fund devoted
to the result. We do not perceive why the
epoasibility of there being no earnings be-
?canse«f fraud or a cataclysm, or a poasibili-
iy of the earnings being greater than was
expected, should make the right less a pres-
ent one, subject to and covered by the at-
tachment, than the right to the capital,
which rons the same risks [Bunnell v. Col-
llnsville Sav. Soc. 38 Conn. 203, 9 Am. lUp.
380), or than that arising from the promise
of a debtor, who may fail or ahscond, or. If
a corporation, may have no assets.
The case certainly la not weakened, it
rather seems to us to be streuet'icned, by
the fact that the statutes of Connecticut
provide that the levy of attachments and
executions upon even the shares of a cor-
poration shall include dividends growing
due thereon. The provision indicates a poli-
cy, and although, of course, the words do
not include dividends from savings banks,
as, in our opinion, they did not need to, it
is only by imagining unreal distinctions
that the policy embodied in the statute, and
extending by the common law to interest
dne upon contract, can be held to exclude
the claim to subsequently earned income ol
ordinary savings banks, when that claim,
M we have tried to show, is a vested right.
HIddletown Sav. Bank v. Jarvis, 33 Conn.
37t| S7B. See Norton t. Norton, supra.
No argument against onr conclusion can
be baaed on the right to release the attach*
ment by giving a bond equal to the value
of the effecU attached. Oen. Btat. H 849,
852. We presume that ordinarily a plain-
tiff would be satisfied with a bond tor the
principal of a debt or deposit. It lie should
raise a question we will wait tor the Con-
necticut courts to decide whether he might
or might not b« entitled to more.
Finally, the assignment, of course, has
no effect upon the rights of the defendant In
error. If the attachment would have held
dividends as against the original defendant,
it holds them as against the aasignMb
Judgment alBrmed.
aa n. a. on
CHICAGO, MILWAUKEE, ft BT. PAUL
RAILWAY COMPANY, PIff. In Err.,
CouiOBCK «=>34 — State REOCLATion or
Intrastate R*tb»— Conoeebsiomal In-
action.
1. A separate local freight rate for coal
shipped from Qalewood, a station Inside of
Chicago, to Morton Qrove^ Illinois, a dis-
tance of about 12 miles, over a route wholly
within that state, is not so related to
through freight rates to Gatewood from
coal -producing districts inside or outside the
state aa to e:<clude r^ulation by the Illi-
nois Public Utilities Commission, Congress
not having exerted its paramount constitn-
tbnal power, where there may b« a blend-
ing of interstate and intrastate operations
of interstate carriers, to limit the authority
of the state, and there being nothing to show
that the order of tlie state CommiEiBinn gives
commercial advantages to dippers and pro-
ducers of coat in Illinois over shippers and
producers outside the state.
[Ed. Nota.— For otlisr ctttm,
Cenc Dls. St K. 82; Dec DlS- fe9«.j
CouBTs «=394(J6) — Ebbok to State
CouM— I'edeeal Question— State Reo-
DI.ATION or Intebstatb Fbeioht Rates.
2. The Federal Supreme Court has ju-
risdiction of a writ of error to a ^t« court
to review a decision adverse to the conten-
tion that a local freight rate for coal
shipped from Galewood, a station inside of
Chicago, to Morton Grove, Illinois, a dis-
tance of about 12 miles, over a route wholly
within that state, is so related to through
treijijlht rates to Galewood from coal-pro-
ducing districts inside or outside the atat^
as to exclude regulation by the Illinois Pub-
lic Utilities Commission.
[Ed. Nats.— Tor other cues, tea Conrti, Cat.
Dig. I lOU; Dm. D1(. «=>tN(U).]
■• topic * KBT-NUH Bia U aU Ktr-NmnbMsd Dlnata ft Ii
A^^OOglC
174
t1 BUPREUE COURT REFORTEB.
Oct. Term.
IN BRBOK to Qm Bi^reme Comi of the
State of IIliDoia to rftriew » Judgment
which affirmed «. judgment of tbe Ciiouit
Court of Suigfimon County, in that state,
■UBtalning an order of the State Fublio
VtUitlea CoinmisaloD, regulating an inter-
state freight rate. Affirmed.
See uune cam below, ZQS 111. 49, P.U.R.
M16D, 133, 108 N. E. 728.
The facts are stated in tha opinion.
Meseri. O. W. Dfties and Burton Han-
lon for plaiptiff in error.
Meesn. M. F. Oallagher and Ererett
Jennlnga for d^endant tn error.
Mr. Juatice McKeniiA delivered the opin-
ion of the court:
Error to review a Judgment of the lu-
prame oonrt of UllnolB nistaining an order
of the State Public Utilities Commission,
made In a proceeding brought by Poehlmum
Brothers Company against plaintiff in er-
^Tor, here call^ Uie railway company.
§ Poehlmann Brothers Company is an 1111-
* nois corporation* engaged in growing and
selling Sowers, and has its greenhovs
Uorton Orove, Cook county, Tllinoii, a
tlon on the rallw^ company's line, 3 miles
northeast of Chicago. Poehlmann Brotiiers
Company uses in its greenhouse about
30,0(>0 tons of coal each year, S5 per cent
of which is mined In Tllinoia, and fiOO
of manure which comes from places in and
around Chicago. The coal and manure t
to Morton Orove over the railway, which re-
oeivea them at Oalewood, a station inaide
of Chicago.
The distance from Galewood to Morton
Orove is about 12 miles and is the haul In-
volved In this case. There are no joint ot
through rates on coal to Morton Grova
from points in Illinois or from points
other states, the rate from Qalewood to
Morton Grove being a separate rate.
The rates on care of coal to Chieago
vary according to point of origin, but in all
cases the charge of the railway company
from Galewood to Morton Grove is 40 cents
a too, and Is publialied as such, for which
tiie railway company Is alone responsible.
July 16, 1613, Poehlmann Brothers Com-
pany filed ■ petition with the WarehouBe
Commission of Illinoia, predecessor of de-
fendant in error, charging that such rate
of 40 cents a ton on ctnU and manure from
Galewood to Morton Grove was unjust and
unreasonable. After a hearing the Commis-
sion BO found, and that 20 cents a ton on
coal and 25 cents on manure were just and
reasonable rates, and should be put into
effect by the railway company.
The order was afBrmed by tb« dreuit
court of Sangamon conn^ Knd subsequent-
ly by tha supreme court of the state. 2S8
111. 4B, F.UJt.lSlGD. 1S3, lOS N. E. 729.
The error assigned against the order of
the Commission and the judgment sustain-
ing it is that so far as the order relate* to
coal, tfaa rates on manure not being in-
volved. It violates the eonunerce clause of
the ConstitntloD of the United States in
that: <1) The order assumes to regulata
a feature ot eommerce In which Interstate
and intrastate* commerce are commingled,*
and after jurisdiction of that feature had
been taken by the Interstate Commerce
Commission, and regulates such feature of
eommerce differently from and inconsistent-
ly with the regulation of the Interstate
Commerce Commission. (2) It requires the
railway company to dlHcriminate against
localities outside of Illinois and give prefer-
ence to those inside of the state in tha
charges that the company makes for the
.same service. (3) It violates S 3 of tha
Interstate Commerce Act as amended (Comp.
St 1918, I 860(9 tv requiring the company
to give nnreasonabla [ireference and advan-
tase to producers and shippers of coal in the
atate, and subject those outside of the state
to unreasoDsble prejudice and diaadvantase
b; obliflnK the company to charge a less rate
for tha transportation of oool In carload lota
between apedfled points cm Ita rails when the
coal oriflnatea within the state than it ia
lawfully permitted to charge and does charie
for the aame aervice on interstate ablpmenta
ot cosL (4) It vioiatea { 6 of the Interstate
Commerce Act as amended (section 8S68) by
requiring the railway company to diarge a
leas compensation on carloads of coal be-
tween certain points named in tariffs on
file with the Interstate Commerce Commis-
sion than the rates and charges specified in
such tariffs, (6) It violates S 13 ot tha
Intentate Commerce Act (section 85S1) by
diaregardiog the right of the railway com-
pany to have the Interstate Commerce Com-
miasion investigate any complaint of the
Railroad Commission of any state and otKain
■uch relief a* the complaint might merit (S)
It violatee t IK of the Interstate Commerce
Act (section 8&S3}, which gives the Interstate
Commerce Commission power over through
rates and Joint rates and transportation par-
ticipated in by two or more carriers, the or-
der under review seeking to regulate one fac-
tot of such through or joint rate without re-
gard to the other. (7) The order ia unrea-
sonable and unlawful in that the Comminion,
without finding the through rate excessive^
or discriminatory, or having facts before JJ
it onlfhlch to make such finding, made the'
order to reduce solely for the benefit of
Illinois shippers and producers, the trans-
portation charges treing a factor of the
traneportation service inrolved that is com-
,A_^OOglC
isie. cmcAQO, m. & bt. p. b. co. t. statb fubuo utilities oom.
mos to interstate uid iutrixtatfl commerM,
uid over which factor the Interstate Con-
meree Commiaaion had preriouilj Msumed
Jnriftdiction.
lbs cB.Be, we think, la in amall eompaaa,
although on ita face and in the argument
of counoel for plaintiff in error It concema
■nch relation between state and Interstate
rates ui to make the order an interferenee
with the latter. The facts remove the order
from such effect. The coal that the order
r^fulates haa Its point of ahipment and
its point of destination In Illinois, and waa
for transportation for 12 miles on the lines
of the milwaf company In the state. But
ooonsel say that the rate for those 12 miles,
that ia, for the haul from Qalewood to Mor-
ton Grove, la part of the through rate from
the coal -producing dlatricts to Oalewood,
which ia a atation in Chicago, that such
producing diatricta may be inaide or out-
side of the state, and tliat the rate, there-
fore, may be a part of interstate c
as well as intrastate oommeree. There
hence comes into the cue, eonnsel contends,
"a feature of oommeree In which Interfltate
and tutraatate commerce are commingled;"
and that, the interstate element dominating,
the State ConunlsBion had no Jurisdiction
to make its order, and it ia aaaerted that
diacrimlnationa and prefcrances between
shippers and localities will reanlt from it.
The contention based upon an interstate
oommeree elemeot In a rate, that is, the
relation of interstate and intrastate rates
and their reciprocal effect, was at one time
quite formidable, but since the Minneoota
Bat* Cases (Simpson t. Shepard) 280 U.
a 3S2, ST U ed. 1611, 4S LJt.A.(N.8.)
1151. 33 Sup. Ct. Rep. 72B, Ann. Caa. 1918A,
18, its perplexity, arising from a eonfilot of
Ih powers, haa been siroplified. In those cases
g It was decided that there ia a field of opera-
* tlon for the power of the atate OTer>lntra-
■tate rates and the power of the nation over
interstate rates. In other words, and In the
laiDguBgB of Mr. Justice Hughes, who de-
livered the opinion of the court: *^rhB
fixing of reasonable ratee for intrastate
transportation was left where It bad been
found; that la, with the atates and the
agencies created by the states to deal with
that subject (Missouri P. R. Co. v. Larsbee
Flour Mills Co. 211 U. B. 612, 53 L. ed. 352,
2S Sup. Ct. Rep. S14)," until the authority
of the state is limited "through the exer-
tion by Congress of Its paramount consti-
tutional power where there may be a blend-
ing of interstate and intrastate operations
of interstate carriers." But it was decided
that Congress had not exerted its power by
the enactment of the Interstate Commerce
Act.
It is, howsrer, said that ths InteraUU
Poehlmann Brotliers Company, and had
rendered a decision sustaining the rates
that the order tinder review adjudges un-
reasonable.
There was such a complaint and the testi-
mony taken waa Introduced in the present
ease. But the complaints are different.
That before the Interstate Commerce Com-
mission coneemed coal from West Virginia.
The complaint in ths present ease concerns
coal shipped from a place in Illinois to
another place in Illinois, the latter place
being Morton Qrove, and the rate to it
from Oalewood being involved. The testi-
mony taken before the Interstate Commerce
Commission happened to have mat^'ial
relevancy to such rate and hence was ad-
mitted in evidence. The rulings were dif-
ferent. It was proper tor the Interstate
Commerce Commiesion to consider the rate
OS port of a through rate from points out-
side of the state. It was equally proper
for the State Conunlsaion to consider it as
part of the intrastate haul, and we do not
think the rates were so related aa to ex>
dude the exercise of Jurisdiction by thajS
State Commission. n
• The order of the Interstate Conunerce*
Commission Is not in the record- It Is,
however, quoted In ths briefs of counsel,
and It appears therefrom that neither the
through rate nor the earrier* responatble
for and participating in it were before the
Contmisaion. The Conunisaion said: "Con-
sidering the abseoc* of evideoea as to the
reasonableness of the through rate, and the
uusatisfaotory arldence as to the separately
established rates under attack, we must
refrain from expressing any conclusion upon
the reaaonabloiess of either rate."
But a relation Is asserted between the
state and interstate haul because it is said
to be manifest that the order of the State
Commiaaion gives commercial advantages to
shippers and prodncera of coal in niinois over
shippers and producers outside of the state.
But there is nothing In the record that
justifies the confidenea of the assertion.
There are too many factors to be considered
for such offhand declarations to be ao-
ipted. Some relation we may admit be-
tween the state and Interstate service, but
the evidence does not bring it within that
certainty snd precision of Infiuence that in-
duced the decision in Houston, E. & W. T.
R. Co. T. United States, 234 U. S. 342, S8
L. ed. 1341, 34 Sup. Ct. Eep. S33, but leave*
It controlled by the Minnesota Bate Cases,
supra; Oregon R. & Kav. Co, t. Campbell,
230 U. S. 626, 67 L. ed. Ifl04, 33 Sup. Ct.
Rep. 1020; and Louisville ft N. E. Go. t.
Garrett, 231 V. 8. 298, 6S L. ed. 229, 34
A^^OOglC
tl 8UFB£UB COURT lUUMifrjUL
Sop. CL Rq). 48. nisrefore, tlie order U
not rabject to the charges ogainat it, and
II 3, 13, and 15 of the Interstate Commerce
Act have no application.
The motion to dismiss la denied. The
Judgment is affirmed.
(HI tr. B. »3S)
P. L. CRANE, Appt.,
ConsnrunonAi. lAw e=3230(2) — Eqcai.
PBOTECTIOK 01' THE LAWS — LiCKNBIHO
Dbuqixu PaAcnriocJEBs— EixBXPTiocis.
1, The exemption in favor of persons
treating the tick by prayer from the appU-
catton of Csl. Laws 1913, chap. 364, as
amended br Laws 191S, chap. 105, \fhlidi
providM Uiat persons may not practise
drugless healing nnlees holding a "drugless
practitioner certiflcate," obtainable onl;
upon completion of a prescribed eourae of
■tudy and after an examination, does not'
render the statute Invalid as denying the
1 — 1._4.,__ _i .i_ 1 — ranteed by
B who does
1 bis treatment of dis-
ss, but does u«e faith, hope, the proeeaaes
of mental suggestion and mental Bdaptati<
a form of treatment in which ikiil enhanced
bj practice ia to he
[BM. Not*.— For oCli«r easel, see CoDslttutlonal
I«W, Cut. Dls. I SS7: Deo. Dis. ^=i;!3D|a),]
PHTBIC1AM3 AND SUBSEONS *=1— PoLlCB
PowEB — LicEKstKa DauaLEsa Pbaoti-
TIONEKS.
2. The state's pollee power eztenda to
requiring, aa Is done by Cal. Laws 1913,
cliap. 354, aa amended by Lawa 1S15, chap.
105, that drugless practitioners employing
faith, hope, and tbe processes ot mental sug-
gestion and mttital adaptation In the treat-
ment of disease, ahall have completed a
prescribed course of study and passed ~ ~
[Ed.
APPEAL from the District Court of the
United States for the Southern District
of California to review a decree denying an
Interlocutory injunction to restrain the en-
forcement of a state statute requiring drug-
less practitioners to have completed a
prescribed course of study and paaaed an ex-
amination. Affirmed.
See same case below, 233 Fed. 334,
The facts are stated in the opinion.
Mr. Tom Ij. Jotmetoa for appellant.
Messrs. Robert M. Clarke, Ttiomas
Ijoe Woolwine, George E. Cryer, and Mr.
V. B. Webb, Attorney Qeoeral of California,
for appellees.
Mr. Justice HcKeniut delivered tka opin-
ion of the court:
Appeal from an order denying an int«r-
locutory injunction, three judges slttinsS
The court took Jurisdiction of* the aetioi^V
citing Raich v. Truaz, 219 Fed. 2T3, 283,
but denied the injunction on the ground
that the averments of the complaint did
not justify It.
Complainant is a diugleis practitioner,
he avers (we state the facts averred nar-
ratively), and has practised his prolessioa
In tiie city and county of Loa Angeles for
the last seven years, and la dependent
upon it for making a living. He does not
employ either medicine, drugs, or surgery
in his practice, nor is tiiere anything harm-
fnl in it to the individual or dangerous U>
society; but he does employ in practice
faith, hope, and the processes of mental
suggestion and mental adaptation.
Under a statute of the state that went
Into effect August 10, 1013, amended in
1015, a board of medical examiners was
created which was empowered to prescribe
a course of study and examination for
those practising medicine (using this word
In a broad sense for convenience), and ta
issue certificates of qualiScations and
Tliree forms ot certificate s were required
to be issnedi First, a certificate authoriiing
the holder thereof to use drugs, or what
are known aa medicinal preparations, is
or upon human beings, and to per torn)
surgical operations, which certificate shall
be designated, "physician and surgeon cer-
tificate." Second, a certificate authorizing
an opposite treatment to that whieh the
first certificate authorized (we are nsing
general description), which certificate shall
be designated, "drugless practitioner eertifi-
cate." Third, a certificate authorizing tbs
holder to practise chiropody. And the stat-
ute also provides for the issuance of what
it designates as a "reciprocity oertiflcate."
Any of these certificates, on being recorded
in the ofllce of the county clerk, as provided
in the act, shall constitute the holder there-
of a duly licensed practitioner in accord*
ance with the provisions of his certificate.^
Applicants must file with the board testi-g
monials of good'moral character and diplo-*
mas of a school or schools, and, in addition,
each spplicant for a "physician and surgeon
certificate" must show that he has attend-
ed four courses of study, each to have been
not less than thirty-two weeks' duration,
with some other additions; and each appli-
cant for a "drugless practitioner certifi-
cate" must show that he has attended two
courses of study, each of such courses to
have been not less than thirty-two weeks'
duration, but not necessarily pursued <
^ssFor othar ei
le topic ft KET-NUMBBR In all Ksr-Mnmbned Slfssts * laOnMi ) '^ I C
1SI6.
CRANB T. JOHNSON.
17T
tinnoiulj oi eonsecutlYelj, mud at lesst
montha shall have intervened b«tweeD the
bquming of any courae and the beginning
of the preceding course; and the course in
chiropody U to be of not leu than thirty-
Mine weeki' duration, conBt»ting of not leas
than 6M hours. There is a provision that,
in lieu of a diploma or diplomas and pre-
liminary requirements iu the other caurses,
if the applicant can shovr to the board that
ha has taken the eoursei refuircd by the
statute in a school or schools approved by
the board, totaling not less than sixty-four
weeks' study of not less than 2,000 hours
tor a "drugless practitioner certificate," or
128 weeks' study of net less than 4,000
hours for a "physieian and surgeon certifi-
cate," he shall be admitted to examination
for his form of certificate.
The statute sets out the course of Instruc-
Uon which the respective applicants must
have pursued, giving the course that Is
necessary for a "physician and surgeon cer-
tificate" and the course for a "drugless
practitioner certificate." Ilhe descriptions
are very elaborate and technical. The stat-
ute also prescriljes the manner of examina-
tion, states the exemptions from its pro-
visions, the penalties for its violation, and
for what conduct and upon what condi-
tions the certificates may be revoked.
Jtmong the latter is the following:
"Ninth. The use, by the holder of a
'drugless practitioner certificate,' of drugs
or what are known as medicinal prepara-
•ftioBB, in or upon any human being, or the
• severing or penetrating by the bolder at
said 'drugleas practitioner certificate' of
the tissucB of any human being in the treat-
ment of any disease, injury, deformity, or
other physical or mental condition of such
human being, excepting the severing of
the umbilical oord." [Stat 1813, chap.
354, p. 734.]
By I 22 of the original act (unaffected
1^ the Act of 1910), it U provided: "Nor
•halt this act be construed so as to dis-
criminate against any particular school of
Bedieine or surgery, or any other treat-
Bent, nor to regulate, prohibit or to apply
to, any kind of treatment by prayer, nor
to interfere in any way with the practice
of religion." [SUt. 1913, chap. 354, p.
738.]
It is alleged that ths statute violates the
14th Amendment of the Constitution of the
United Statu, especially the equal protec-
tion clause thereof, in that it imposes
greater burdens upon complainant than
upon others In the same calling and posi-
tion. That It discriminates in favor of
the Christian Science drugleas practitioner,
dietinguiahes between the treatment of ths
■iek t^ prayer, the treatment of th» sick
87 S. C^— 12.
by faith, mental suggestion, and mental
adaptation, and treatment by laying on of
hands, anointing with boly oil, or other
kindred treatment.
Complainant does not employ prayer in
the treatment of disease, and is, therefore,
not exempt from examination by the medical
board, and Is subject, therefore, to the
penalties of the act if he practises his pro-
fession, tor which he haa fitted himself by
study and practice, and upon which he is
dependent, and by reason of his age he i»
in large measure unable to take up any new
branch of work. Tbat defendants, appel-
lees here, are threatening prosecutions un-
der the act, and he la without remedy at
law.
There Is an allegation that the supreme
court of the state of California has decided
that the statute is not offensive to tho
14th Amendment, in habeas corpus proceed-^
ings proiecuted by one Chow Juyau, whoS
was^eonvieted of practising some form of*
Chinese healing which was adjudged a vio-
lation of the act.
The allegations of the bill set forth com-
plainant's particular grievance to be that
the statute discriminates between forms of
healing the sick and the use of prayer and
other drugless methods, and invoke the
equal protection clause of the 14th Amend-
ment of the Constitution of the United
States. In other words, he attacks the
classification of the statute as having no
relation to the purpose of the legislation.
Of eourse, complainant is eonflned to the
special discrimination against himj he can-
not get aasistance from the discrimination,
if any exist, against other drugleas prac-
titionera. The case, therefore, is brought to
the short point of the distinction made be-
tween his practice and certain forms of
practice, or, more speclffcally, between hia
practice of drugleas healing and the use of
prayer.
The principle of decision needs no ex-
position, and the ouly question Is whether
it was competent for the state to recognizo
a distinction in its legislation between drug-
less healing as practised by complainant
and such healing by prayer. Hat there is
a distinction between his practice and that
of prayer, complainant himself, it seems
to us, has charged in his bill. He has not
only charged that he doea not employ either
medicine, drugs, or aurgery in hla practice,
but that he does employ faith, hope, and
the processes of mental suggestion and
mental adaptation. These processes he doea
not describe. Presumably they are different
from healing by prayer, — different from the
treatment by Chriatian Science. But ha
allies that for his practice he has become
'particularly fitted by many years of
.A^^OO^IC
87 SUPREME COURT BEPOBTEB.
Ooi. IUh,
•tud; and practice tliarein." In other
words, the treatment is one iu which skill
la to be exercised, uid the skill can bi
haoced by prsctioe, snd the objectH of the
^treatment are diseased human beings whose
*0ODdition is to be diagnosed. To treat a
• disease there^iut be aji appreciation of it,
a distinction between it and other diseases,
and special knowledge is thereloia required.
And this was the determination of the state;
but it determined otherwlae as to prayer,
the use of whicli, it decided, was a practice
of religion. We cannot say that the state's
estimate of the practices and of their differ-
ences is arbitrary, and therefore b^ond
Uie power of government. And this we
should have to saf to sustain the conten-
tions of complajmuit, and say besides, pos-
sibly against the judgment of the state, that
there was not greater opportunity for de-
ception in complainant's practice than in
other forma of drugless healing.
Because of our very recent opinioni
omit extended reply to the argument of
counsel and the cases cited by him, not
only of the general scope of the police
power of the state, but aho of the distinc-
tions which may be made In classifying the
objects of legislation. And for like reason
we do not review or comment upon the
eases cited in opposition to complainant'
eontentlons.
It is to be ohserred that the order of the
court was put upon the narrow ground of
the averments of the oomplaint, no opinion
beyond such averments being expressed.
Decree affirmed.
Physicians and Subqeonb ^al— Police
POWEB— lilCESBINO OfTOUETBISTS.
1. A state may, in the exercise of its
ell ice power, confine to registered optome-
ists who have passed the examination pre-
scribed by C^. Laws 1913, cbap. G9a, the
right to employ means other than drugs to
measure the range of human riaion, and
tlie accMnmodative and retractive states of
the human eye.
[Ed. Kota.'-FoT otbar cases, see Plirilolsat
sod Sorceons. Cant Dl|. | 1 1 Dec. Dls. ^31.]
CossTrronoNAi. IJAW «=>230(2) — Equal
PBOTECTION or THE IjAWS — LlOBHSIKO
OPTOMETBISTS — EZEMPTINa PBTSICIAflB
AKD SUBOEONB.
2. The exemption In favor of duly II-
oenaed physicians and surgeons, which is
made by Cal. Laws 1S13, chap. SQS, con-
fining to rc^Btered i^tometrists who have
pasaed the prescribed examiDation the right
to employ means other than the use of drugs
e the range of human vision, and
the accommodative and refractive states of
the human eye, does not deny tiie equal
protection of the laws guaranteed by IT. S.
tkinst. I4tli Amend,, to a regularly gradn-
atad ophthalmologist who onploys druglesa
means for sudi purposes.
[ad. Nat&— I^r othw esses, ■>■ CansUtutloaal
Law, Cent. Die | tS7; Deo. Dig. «=3:U[S).]
[No. 404.]
Argued December 12, 1010. Decided Jana>
ary 8, 1917.
APPEAL frwn the DUtrict Court of the
United States for the Southern District
of Califomia to review a decree denying
an interlocutory injunction to reetrain the
enforcement of a state statute licensing
optometrists. Affirmed.
See same case below, 233 Fed. 334.
The tacts are stated In the opinion.
Mr. Tom L. Jotanaton for appellant.
Messrs. Robert H. Clsrke, Tbomfts
I<ee Woolwl&e, George E. Cryer, Bay E.
Nimmo, and Mr. U. S. Webb, Attorney
Goieral of California, for appellees. ^
Mr. Justice HcKe&nft delivered the opin.*
ion of the court:
This case was aubmltted with Crane T.
Johnson, Just decided [242 D. S. 33S, SI I.
ed. 348, 87 Sup. Ct Eep. 176]. It was con-
sidered in the district court with that case,
three Judges sitting as in that case. It
cornea here on appeal from an order denying
an interlocutory injanction. The court en-
tertained juriadiction upon the authority
of Baich V. Truaz, S19 Fed. 273, 283; Truax
T. Batch, 239 U. 8. SS, SO L. ed. 131, L.B^
1910D, S4S, 3e Sup. Ct. Bep. 7.
The court, in denying the injunction, said
"that the granting of such orders is within
the sound discretion of the court, and, in
the exercise of such discretion, based upon
the averments of the bills, we are of opinion
that the application should be denied." The
court did not pass upon the merita, expreas>
Ing a doubt of its authority to do so, as
the court said it was composed of three
judges, "under etatutory requirement." a
Appellant — we shall call her complainant,^
and state Narratively the facta she alleged*
— is a regularly graduated ophthalmologist,
which is a school of scientiSc learning and
practice confined to the treatment of the
Inflammation of the eye and its membranea
and In fitting glasaes to the human eye. She
has practised her iNrofession iu the city of
Los Angeles for the past three years snd
is dependent upon the proceeds of her labor
and services. Bbe does not employ either
medicine, drugs, or surgery, nor Is there
anything In her practice hurtful to the in-
dividual or dangerous to society.
^nFor oUisr esse* ■•■ ■•
• topic A KSX-KttUBBR In all Ks7-NBmbsred DIcMa *
?Wbogic
HdNAUGHTON ▼. JOHNSON.
1T»
In her prkctlce tt b alwolutelj
And indUpeniabla th&t she muMure the pov-
en and range of human vliian without thi
use of druga, and there la no law in the
«tata of Calttornla preecrlbing
tion lor and T«culatlng the practice
qihthaJmotogy.
At its 40tb Mulou the leglBlature of Cali-
fornia Hiaetad a etatute by which it pro-
Tided that it ehonld be unlawful for anj
person to engage in the practioe of optome-
try without flrat having obtained a certiS-
eate of regiatiation from the StaU Board
of Optometry under an act to regulate that
practice, approred March 20, 1903, and the
aet* amendatory thereof.
Ihe practice ol optometry la defined to
be the employment of any meane other than
the UM of drug! for the meaanrement ol
the powers or range of human viiioa,
the determination of the accomraodatire and
refractiva states of tha human eje, or the
scope of Its functioDB in general, or the
adaptation of lensec or frames for the aid
The board is given the power, among
others, to visit schools where the lolence of
•ptomatiy la taught, and aoeredit sneh aa
the board finds give a sufficient coune ol
•tn^ for the preparation of optometriats]
to keep a register of all persona to whom
MTtUcatet of regiatratioD have been issued
•Kd of all Itinerant licenses, and to grant
$or refuse or revoke such certificates. The
Paet'preecribes a course of examination, de-
aoribes the particnlars of the examinations,
and provldaa that every appllesnt for an
examination, upon passing it, shall be en-
titled to bs restored in the board's register
of optometriats, and a oertiflcate of regis-
tration shall be issued to him.
"At such examinatlona the board shall
exainlne applleanta in the anatomy of -Qie
ays, in normal and abnormal refractive and
■cctnamodatiTa and muacnlar conditions and
«OH>rdlnati<m of the eye. In subjectii
and objective optometry, including Uie flt-
ting of glasses, the principles of lens grind-
ing and frame adjusting, and in such oUier
mbjects as pertain to the soience and prao-
tice of optometry, such subjects to be
•namerated In publication by the board.
In ease ot teilnre, the applicant shall be
examined at the next examination only in
the subjeeta in which he failed. All such
applicants, without diecriminatltMi, who
■hall satisfactorily paas such examination
ahall therenpon be roistered in the board's
r^isto' of optometrists and a certificate of
r^iattmtion shall bt issnad to them, under
ttaa aeal and signature of Uia members of
s^d board upon p^ment of a fas of $6.
Such oertiflcate shall oontlnne In tores until
the first day of August in the year next
succeeding." [Stat. 1018, diap. S98, p.
1100.}
Before engaging In pracUce It shall be
the duty of each rtgistered optometrist to
notify the board in writing of the place or
plaees where he la to engage or intends to
Migaga in practice, and of changes in such
There ara other provisions intended to
fortify those above mentioned, and viola-
tions of tha act are made miademeanora,
with fines and imprisonment, incieasing
with repetition of the offense.
It is provided that the act shall not be
construed to prevent duly licensed physi-
cians and surgeons fron treating the human
eye, nor to prohibit the sale of complete
ready-to-wear eyeglasses as merchandise
from a permanent place of bnsiness, in good
faith, and not in evasion of the act, by the
person not holding himself out as com-
petent to examine and prescribe for tha
human eye. <*
■Registry eertlQcatea may be revoked for?
eertain spedfled causes.
Cmnplalnant charges that the act offends
tha 14tb Amendment of the Constitution of
tiia United States in that it deprives b«r
of her proper^ without due process of law
and denies her the equal protection of the
laws; and aa speelfioatianB ot the last she
instancaa tha axemption from the provislona
of the act ot licensed physicians and snr-
geons ; the appropriation to the sols use of
registered optometrists of the right to em-
ploy any means other than the use of drugs
in the measurement of the powers or range
of vision; Uie denial to all other sehools of
sclentlfle learning and practice the right to
lore the range of htunan vision other
than by the uae of drugs on equal terms
with the physician and surgeon; and con-
tends generally that her occupation being
a lawful one, not hurtful to the Individual
or dangerous to the community, the state
to power to impose discriminatory regu-
lations upon it.
She alleges her competency to practise
her profession and apply it* treatment, that
appellees are threatening to enforce the law,
hence prays temporary and permanent
In junctions.
These specific objeotlons are brought dowf
to the general objection that the statute dla-
criminatM against those who employ ai^
other means than the use of drugs, and
therefore "creates a monopoly favored and
protected by law in the interest ol prao-
A^^OOglC
180
S7 SUFEBUE COURT REPURTEB.
titioneri who employ drug* In determiDiDg
th« accommodative and rcfraetlvs statea at
the human eye."
To ■ustain the statute appellees adduce
the police power of the state; against the
statute complainant urgas the I4th Amend-
ment and its prohibltioa of discrimination.
The case requires, under the avermenta of
-the bill, adjustment of these contentions.
^ It la CEtabliahed that a state may regu-
■late the practice* of medicine, using this
word In its most general sense. Dent
West Virginia, 129 U. S. 114, 32 L. ed. Si
B Sup. Ct. Rep. 231; Hawker r. New York,
170 U. S, 190, 42 L. ed. 1002, 18 Sup. Ct
Rep. 673; Beetz v. Michigan, 188 U. B. 605,
47 L. ed. 603, 23 Sup. Ct Rep. 300; Watson
T. Maryland, 218 U. 8. 173, 64 L. ed. 987,
SO Sup. Ct. Rep. 844; Collins t. Texas, 223
U. S. 288, &e L. ed. 430, 32 Sup. Ct. ~
E80.
Complainant tries to escape from the
rulings of those cases b; asserting a dis-
crimination against her. She Is an ophthal-
mologist, she avers, ''which Is a school of
seienlific learning and practice confined to
the treatment of the inflammation of the eye
and its membranes and in fitting glasses to
the human eye," and that she has prac-
tised her profesaion for the paat three years,
and docs not employ medicine, drugs, or
surgery. She, however, attacks the statute
because, to use the language of her coun-
sel, it "arbitrarily discriminates against
every other school of scientific knowledge
and practice in favor of the school employ-
ing drugs in determining the accommodative
and refractive states of the human eye."
It undoubtedly does, hut gives the name of
the school that of "optometry" and its prac-
titioners "optometrists." Ws cannot sup-
pose that any injury is done her by the dif-
ference in names, and yet she gives no other
tang ih la ground of complaint. Whether
they are different, snd whether the differ-
ence is of substantial or unsubatantlal de-
gree, she does not inform ua. She practises
one of them in preference to tlie other, and
for the practice of that one the state has
declared that its certilicata of competency
is neccBsary. The cases cited above estab-
lish that the state has such power and it
requires no more of complainant than It re-
quires of any other ophthalmologist, to use
her word, or of any other optometrist, to
use the word of the statute.
The District Court was, therefore, right
when it decided that, on the averments of
the hill, complainant was not entitled t* ma
Injunction.
Decree alBrmed.
Oct. Tesu,
(HIU. B.im
JAMES CLARE DISTILLINa COHRANT,
WESTERN MARYLAND RAILWAY COM-
PANY and the SUte of West Virginia.
(No. 76.)
CoHSTrrnnoNAL Law «=>295--DnK Pao-
CEBS OF Law— FORBIDDINQ Shifhehts
or IflTOXICATINQ LiQUOK — Pesborai.
Use.
1. A stats may, consistently with the
due process of law clause of if. 3. Const.
14th Amend., forbid all shipments of in-
toxicating liquor, whether intended for per-
sonal use or otherwise.
Law, Cant Dig. | BU; DteTb
CcwuEBCE ^=14 — Statk Reoui^tion —
TBAnSPOBTINO InTOZIGATINa LlQTJOK—
Webb -Kek Ton Act,
2. Any immunity from the prohibitions
of W. Vs. Code 1913, chap. 32A, as amend-
ed by Laws 1015, chap. 7, | 7, Laws 1016,
2d Ex. Sees. )>. S60, g 34, against the ship-
ment from without the state of iutoxica^
ing liquors intended for personal use,
and the receipt and possession of liquors
so tranaported, which the interstate char-
acter of such a shipment might otherwise
give, was takm sway by the provisions
of the Webb-Kenyon Act of March 1, 1813
(37 SUt. at L. 609, chap. 90, Comp. SUt.
1013, § 8T3B), forbidding the intersUU
shipment or transportation of intoxicating
liquor which is intended by anv person In-
terested therein to be received, possessed,
sold, or in any manner used, either In the
iffinal pacicage or otherwise, In violation
of the law of the state to which the liquor
is transported, although individual use may
not have been prohibited by the West Vir-
ginia law.
[Ed. Note,— For othsr cue*.
Cent. Dis. |i SO, M : D»3. DIE. <
CouuERCE «=361(1)— Power OF Conokess—
iKTEBSrATB TRAMSPOBTATIOH Of iKTOXl-
CATiRQ Liqooas— Wbbb-Kknton Aot,
3. Congress did not exceed its power
under the commerce clause in enacting the
provision of the Webb-Kenyon Act of March
1, 1913 (37 Stst. at L. BOO, chap. 00, Comp.
Stat. 1913, S S739), forbidding the Inter-
state shipment or transportation of intoii-
:ating liquor which Is intended hy any
person Intereated therein to be received, poa-
sessed, sold, or in any manner used, either
in the original package or otherwise, in
'iolation of any law of the state Into which
the liquor is transported.
[Ed. Note.— For ottter cases, hs CanuDerce,
Cu>t DIs. It n, Si; Dec. DK. «=>S1C1).1
CoNeTTTunoNAi. Law «=329e<l) — Dm
Pbocebs or Law — Fobbiddino Ship-
UBMT8 OF IHTOZICATINO LlQUDft— PeI-
BORAL Use.
4. There is nothing repugnant to tha
due process of law clause o( U. 6. Const. Sth
IS topic * KBT-NUUBES ll
11 Ksr-Mumbsrsd DlissU * iDdnv
L',ali..,-)-,.*^-.OOglC
CT-ATtlC DISTIUJKG CO. v. WESTERH UABYLAND R. 00.
lU
Ammd- to the nrovtaloM of tha Webb-Een-
ron Act ol March 1, IftlS (37 SUt. at L.
«S, chap. SO, Comp. Stat. 1913, S 8730)
under which an interstate shipment of in
toiicating liquor, though intended lor per
•onal uae, may be lubjected to the liatt
prohibit or; law a.
[Sd. NoM.— For othsr mm, n« CoDttltntlanal
Law. Cent. Dig. | BU; Dec DIr ft»19<a)-]
Argued iSaj 10 and 11, 1916. Ordered for
reargument November 1, IfllS. Reargued
November 3 and 9, ISIS. Decided Janu-
ary 8, 1B17.
TWO APPEALS from the Dirtrict Court
of the United StaUi for the District of
Uaryland to review decreei diemiBslng the
billi in tuits tc compel carrier* to accept
ahipmenta of intoxicating liquor for inter-
■tata tranaportation forbidden bj the laws
of the state into which the liquor was to
be transported. Affirmed.
Tha facts are atated in the opinion.
Meaara. I^awrence Maxwell, Joseph
Graydon, Walter C. Capper, and J. Phillip
Koman for appellant.
Measrs. W. B. Wheeler and Fred O.
Bine for the state of West Virginia.
Ur. Wiley E. Jones, Attorney General of
Arizona, Mr. Clifford Walker, Attorney Gen-
eral of Georgia, Mr. J. H. Peterson, Attor-
ns General of Idaho, Mr. George Coeson,
Attorney General of Iowa, Mr. S- M. Brews-
ter, Attorney General of Kansas, Mr. Rosa
Collins, Attorney General of Miuisaippi, Mr.
T. W. Bickett, Attorney General of North
Carolina, Mr. Henry J. Linde, Attorney Gen-
eral of North Dakota, Mr. B. P. Freeling,
Attorney General of Oklahoma, Mr. George
M. Brown, Attorney General of Ore^n, Mr.
lliomaa H. Peebles, Attorney Grcneral of
South Carolina, Mr. Frank M. Thompson,
Attorney QeneraJ of Tennessee, Mr. John
Garland Pollard, Attorney General of Vir-
ginia, Mr. W. V. Tanner, Attorney General
of Washington, and Mr. William I- Martin,
Attorn^ General of Alabama, as amici
M (Ur. Chief Justice Wlilte delivered the
opinion of the court:
To refer to the principal state law relat-
ing to these suits, to the pleadings and
tha decision of the court below, will make
the issnea in these cases clear and point
directly to the elements required to be eon-
sidered in deciding theniL
2 West Virginia in February, 1913, enact-
^ed a prohibition* law to go into effect on
July lit of the following year. Code 1913,
tibMf. 32A. Putting out of view the right
4rf druggists, under stringent regulations
prorided by Uie statute, to sell for medicinal
purposes, and the right otherwise to sell
wine for sacramental and alcohol lor scien-
tiflc and manufacturing purposes, the law
forbade "the mtmufacture, sale, keeping or
storing for sale in this atate, or offering or
eipoaing for sale," intoxicating liquors, and
tha intoxicants embraced were compre-
henaively defined. The statute contained
many reatrictions concerning hotels, restau-
rants, clubs, and so-called associations
where liquor was kept and served either aa
a result of membership or by gift or other-
wise, which were evidently intended to pre-
vent the frustration of the prohibitions
against the keeping of intoxicants for sale
and purchase by subterfuge in the guise of
tha exercise of an individual righL Tlkera
was no exprese prohibition against the in-
dividual right to use intoxicants and none
implied unlcaa that result arose (a] from
tha prohibition In universal terms of all
sales and purchases of liquor within the
state, (b) from the clause providing that
every delivery made In the state by a com-
mon or other carrier of the prohibited in-
toxicants should be considered as a consum-
mation of a sale made In the state at the
point of delivery, and (c) from the prohi-
bitions which the statute contained against
solicitations made to induce purchases ol
liquor, and against the publication in the
state of all circulars, sdvertisements, price
lists, etc., which might tend to stimulate
purchasea of liquor.
Under this statute, and in reliance upon
the provisions of the act of Congress known
as tha Webb-Kenyon Law (Act of Congress
of March 1, 1913, 37 Btat. at L. 699, chap.
90, Comp. Stat. 1913, S 8739), tha sUU
of West Virginia in one of its courts sued
ths Western Maryland Railroad Company
and ths Adams Express Company to enjoin
them from carrying from Maryland into.
Weat Virginia liquor in violation of law.i^
Innubstance it waa charged that very many*
shipments had been taken by the carriers
contrary to the law, both as to solicitations
and as to tha use for which the liquor was
intended. Preliminary injunctions were is-
sued restraining the carrying of liquor into
the state, subject to many conditions as to
investigation, etc., etc With these Injunc-
tions in force, these suits wers commenced
by the Clark Distilling Company to compel
'^e carriers to take a shipment of liquor
'hich it was asserted was ordered for per-
sonal use, and deliver it in West Virginia,
the ground that the Act of Congress to
Regulate Commerce imposed the duty to re-
ceive and carry, and that, beaides, the West
Virginia prohibition taw, when rightly eon-
atrued, did not forbid it. The carriers, not
challenging the asserted meaning of tha
Weat Virginia law, aet up the injunotions
ssFiv othar easas sassi
» topic * KBY-NUMBBR in all Ker-NnmlMrad DlsasM A Indaiea
D,at,z.d-,.'^-.00'^IC
S7 8UPREUZ COURT KGPOKTER.
OOT. TwiM,
tad kTerred that to reeeiTB and cairr the |
Uqnor would violatd their proriaiotiB, and
therefore there vaa no dutj under the Unit-
ed StatM law to do ao. Weit Vlr^nia
tnterrened in the auita, relying upon the
state law and the injunctioni which had
been iaeued. At the trial it was ahown
that the plaintiff Distilling Company liad
ajatematically solicited purchases and con-
atantlj shipped liquor from Maryland into
West Virginia In violation of the prohibi-
Uon Uw. The court held that the West
Virginia law did not prohibit personal use,
and did not forbid shipmenta for lueh use,
and that, as there was no itate prohibi-
tion, the Webb-Kenyon Law had no applica-
tion, and that, as the solicitations forbidden
by the state statute were lolicitatiena to
do that which was forbidden, that considera-
tion was irrelerant. The construction ol
the statute made by the state eourt was
held not authoritatively binding, as that
court was not one of last resort, and the
right to practically modify the injunctions
was declared to exist because West Virginia,
bj making herself a party to the suits, had
submitted herself to the jurisdletlon of the
SeourL All questions concerning the power
• of the state of West Virginia'to pass the
prohibition law If it meant otherwise, and
of the right of Congress to adopt the Webb-
B^j<»t Act under a like hypothesii, were
rsMrved. 219 Fed. 9S3. Before the decrees
Mitered became final, the cirenit court ol
appeals tor the fourth circuit, in a ease
pending before It (West Virginia v. Adams
Ezp. Co. LJtJi.ieieC, 2D1, 130 C. C. A.
404, 21B Fed. TB4), decided diraeUy to the
eontrarr. It held that the law of West
Virginia did prohibit shipments for personal
UM; that it did forbid solicitations therefore
for such purchases; that, hj operation of
Oie Webb-Kenjon Act, there was no longer
a Tigbt to ship liquor into the state in vio-
lation of its laws; and that both the state
law and the Webb-Eenyon Act were con-
stitntionsl. Controlled bj such decision,
the trial eourt recalled Its opinion, heard a
reargument, and, although not changing It*
view, accepted and gave effect to the con-
clusions reached by the circuit court of
appeala because they were deemed to be
authoritative, and the case* were brought
directly here, because of the constitutional
questions, to review such action.
The issues to be decided may be em-
braced in four propositions which we pro-
ceed separately to consider.
1. The eorrect meaning of the West Vir-
ginia law as to the subjects In dispute.
He difference as to the meaning of the
statute in the eourt below was whether or
not the West Virginia, law prohibited the
receipt of liquor tor petioual use; and, if
it did, whether or not the prohlblttons
of the law equally applied to shipments
from outside and to those originating in
the state. But the possibility of dispute
these subjects no longer exists because,
after the decision below, and since the
cases were first argued (for they have been
here argued twice), the state of West Vir-
ginia amended the statute ao as to leave no
room for doubt that it does forbid all ship-
ments, whether for personal use or other-
wise, and whether from within or without?
the state. The pertinent* provisions of thef
amendments are placed in the margin, ^
As the relief sought is the permanent right
to ship in the future, the meaning of the
statute now, that is, as amended, is the test
by which we must consider the questions
requiring solution. Indeed, this is franklyg
admitted by the* parties, since it is un-*
equivocally declared that the question la
the operation and effect of the statute aa
amended and ita constitutionality. Ws
therefore come to the second question,
which Is;
2. 'de power sf the state to enact the
prohibition law eonsistently with the due
process clause of the 14th Amendment and
the exclusive power of Congress to r^^ulate
commerce among the several states.
That government can, consistently with
the due process clause, forbid the manufac-
ture and sale of liquor and regulate Its
trafflc, is not open to controversy; and that
there goes along with this power full police
authority to make it effective. Is also not
open. Whether the general authority in-
cludes the ri^t to forbid Individual use,
we need not consider, since clearly there
wonid be power, as an incident to the right
to forbid manufacture and sale, to restrict
the means by which intoxicants tor personal
vise could be obtained, even if such use was
permitted. Tbi* being true, there can be no
doubt that the West Vir^nia prohibition
law did not offend against the due process
clause of the 14tb Amendment.
But that it was a direct burden upon
1 "Sec T. It shall be unlawful for any per-
son to keep or have, for personal use or
otherwise, or to use, or permit another to
have, keq) or use, intoxicating liquors at
any restaurant, store, office bidlding, club,
§lace where soft drinks are sold (except a
rug store may have and sell sJcohol and
wine as provided by gS 4 and 24), fruit
stand, news stand, room, or place where
bowling allevB, billiard or pool tables are
maintained, livery stable, boathouse, publla
building, paric, road, street or alley. It
shall sJso be unlawful tor any pereon to
S'lve or fumish to another intoxicating
quors, except as otherwise hereinafter pro-
vided in this section. Any one violating
this section shall be guilty of a miademeaa-
,A_^OOglC
1014.
CLABE DISTILLING CO. T. WESTERN MABTLAIO) R. 00.
1B3
IsUnt&ttt commerca and conflicted with the
power of Congrew to regulate commeica
UQong the terersl atktta, and therefore
oould not be need to prevent interetate
■hipmenta from Marrland Into West Vir-
ginia, has been not open to question aiDce
the deciaioQ in Ltisy t. Hardin, 135 U. S.
100, 34 L. ed. US, 3 Inten. Com. Bep.
hSS, 10 Gup. Ct. Rep. 6S1. And this brings
Jjua to cpnaider whether the Webb-Ken^n
* Law has so regulated interst«t« commerce
u t« give the state the power to do what
it did in enacting the prohibition law, and
cause ita prciTiaiona to be applicable to Bhip-
monts ol intoxicant! in interatate commerce,
thus saving that law from repugnanoy to
the Constitution of the United States, whlnh
ii the third propoaition for conaideration.
3. Assuming the coustitutiontlitj of the
Webb-GenyoD Act, what is its true mean-
ing and ita operation upon the prohibitions
contained In the West Virginia law I
Omitting words irrelevant to the subject
now under consideration, the title and text
«»f the Webb-Eenyon Act are as follows:
"An Act DiTesting Intoxicating Uquori
•f nieir Interstate Character In Certain
Caaea.
"... That the ahlpment or trana-
portation, in any manner or by any means
whatsoever, of any apirituooa, vinous,
Mialted, fermented, or other intoxicating
Ufoor of any kind, from one state, terri-
toiy, or district of the United SUtes,
. . . into any other state, territory, or
distrlcrl of the United State*, . . .
which aaid aplrituoua, vinous, malted, fer-
mented, or other Intoxicating liquor ia In-
tended, by any person interested therein, to
be received, posaesaed, aold, or in any man-
ner used, either in the original paclcaga or
otherwise, in violation of any law of aach
state, territory, or district of the United
States . . . Ia hereby prohibited."
As the atata law forbade the shifonent
Into or transportation of liquor in the
state, whether from inaide or out, and all
receipt and possession of liquor so trans-
ported, without regard to the nae to which
the liquor was to b« put, and aa the Webb-
Eenyon Act prohibited the tran sport ation
in interstate commerce of all liquor "intend-
ed to Im received, possessed, aold or in any
manner used, either in Uie original pack-^
age or otherwise, in violation of any lawg
of Buch state," there would aeem'to be no*
room for doubt that the prohibitions ol
the state law were made applicable by the
Webb-Eenyon Lew. If that law was valid,
therefore, the itata lav waa not repugnant
to the commerce clause. It la insisted that
this view gives too wide an effect to the
Webt>-Eenyon Law, since that act was only
Intended to include state prohibitions i«
so far as they forbade the shipment, r«-
oeSpt, and possession of liquor lor a forbid-
den nae, and hence, as individual nae waa
not forbidden by the state law, the ship-
ment, receipt, and posaession for such nae
was not emhrsoed by the Webb-Eenyon
Aet, and the state law, so far aa it was
outside of that Act, was repugnant to the
commerce clause. This ia sou^t to ba sup-
ported by the hlatorioal environment of the
Webb-Kenyon Act aa evidenced by the de-
bate* on ita paasage and fay a deciaion ti
this oonrt, as wall as decisions of state
«r, and upon convlotion thereof shall be
fined not less than 9100, nor more than $600,
and be imprisoned in the county jail not
less than two nor more than aix months ;
provided, however, that nothing contained
in this section shall prevent one, In his
borne, from having and there giving te an-
other Intoxicating liquors when such hav-
ing or giving ia In no way a shift, scheme
or device to evade the provisions of this act ;
but the word 'borne' aa used herein, abail
not be construed to be one's dub, place of
common resort, or room of a tranaient guest
in a hotel or boarding house. And, provided,
further, that no common carrier, for hire,
nor other person, for hire or without hire^
«h^I bring or carry into this state, or carry
from one place to another within Uie state,
Intnzicsting liquors for another, even when
intended for personal use; except a common
carrier may, for hire, carry pure grain
alcohol and wine, and such preparations as
nwy be sold by druggists for the special
purposes and in the nuuiner as set forth in
fl 4 and Z4j and, provided, further, however,
ihat in case of search and selcure, the flnd-
stored for unlawful pnrposca." [Acta IVIS,
cbap. 7, p. 34.J
"See. 34. It shall be unlawful for any
person In this state to receive, directly or
indirectly, intoxicating liquors from a com-
mon, or other carrier. It shall also be un-
lawful for any person in this state to possess
intoxicating liquors, received directly or
Indirectly from a common, or Other carrier
In this state. This aection ahall apply to
auch liquors Intended for personal use, as
welt aa otherwise, and to interstato, aa well
as intraatate, shipments or carriage. Any
person violating this section shall be guilty
of a misdemeanor and upon conviction shall
be fined not less than $100 r
S200 and in addition thereto may be im-
prisoned not more than three months; pro-
vided, however, that drugElats may receive
and possess pure grain ucohol, wine and
such preparations aa may be sold by drug-
gists for the speoial purpose and In tJie
manner as set forth In §g 4 and 24." [Acta
I8IG, id Ex. Seas. chap. T, p. 000.]
.A^^OOglC
184
37 SUPBEMB COUBT BBPOBTEB.
OOT. TEBHr
WMirts (whicit are In the margin*), which.
It U insisted, have to construed that act.
Assuming, for the sake of argument 0DI7,
that the debates may b« resorted to for
tha purpose of showing enviroDment, we are
at opinion tbe;r elearly establish a reeult
dirfctlf contrary to that which thej are
ciUd to maintain. Undoubtedly they show
thbt it was insisted the act was not in-
tended to interfere with penonal use, as
of Miurse it was not, since its only purpose
wa.( to give effect to state prohibitions, not
to compel the states to prohibit personal
us*. Indeed, the meaning which it is sought
to atHx to the Webb-Kenyon Act, If accept-
ed, would cauHB that act to have the effect
of compelling the states to prohibit personal
uae, since, if all the prohibitions of state
i.lawa against manufacture, sale, receipt, and
Mpossession of intoxicants remained subject
• to the danger of indirect* violation by per-
nltting shipment, receipt, and possession
for personal use^ it would follow that a
necessary and immediate incentive was im-
posed upon the stat«s by the Webb-Kenyon
Act to enact a {ffoviaion against personal
The antecedent! of the Webb-Eenyon Act,
that is, its Ic^lativa and judicial progeni-
tors, leave no room for the eonteation made.
To correct the great evil which was asserted
to arise from the right to ship liquor into
a state through the channels of interstate
commerce, and there receive and sell the
same In tha original paclcage, in violation
of state prohibitions, was indisputably the
purpose which led to the enactment of the
Wilson Law (Act of Congress of August
B, 1800, 28 Stat, at L. 313. chap. 728,
Comp. Stat. 1013, 9 8738), forbidding the
aale of liquor in a state in the original
package even although brought in through
Interstate commerce, when the existing or
future state laws forbade salea of intoxi-
cants. And this was recognized by the
long line of decisions (a few of the leading
cases are in the margin*] which upheld
that law, and pointed out that it permitted
■Van Winkle v. Btate, i Boyce (Del.)
GTS, 91 Atl. 365. Ann. Cas. 1&16D, 104;
Adams Gicp. Co. v. Com. ISl Ky. 462, 48
L.R.A.(N.S.) 342, 167 S. W. B08; Adams
Exp, Co. V. Com. lao Ky. eS, 169 S. W, 603;
Palmer v. Southern Exp. Co. 129 Tenn. 118,
165 S. W. 238; Ex parte Peede, 75 Tax.
Crim. Eep. 247, 170 S. W, 749.
■Be Rahrer, 140 U. B. S46, 36 L. ed.
672, 11 Sup. Ct. Bep. 865; Rhodes v. Iowa,
170 U. S. 412, 42 L. ed. 1088, 18 Sup. Ct.
Bep. 604; American Exp. Co. v. Iowa, 196
U. S. 133, 49 h. ed. 417, 25 Sup. Ct. Rep.
182; Pabat Brewing Co. v. Crenshaw, 198
U. S. 17, 46 L. ed. 925, 25 Sup. Ct. Rep.
U2; Roaenberger v. Paciffc Exp. Co. 241 U.
& 48, eo L. «d. BM, M Bap. Ob B«. 610.
the state prohibitions to take away front
interstate commerce shipments a right
which they otherwise would have embraced;
that Is, the right to sell after receipt in.
the original package, any state law to the
contrary notwithstanding. At the same
time it was recogniied, however, that as the-
right to receive liquor was not affected by
the Wilson Act, such receipt and the pos-
session following from it and the resulting
right to use remained protected by the com-
merce clause even in a state where what is
known as the dispensary system prevailed.
Vance v. W. A. Vandercook Co. 170 U. 8.
438, 42 li. ed. 1100, 18 Sup. Ct. Bep. 874.
Reading the Webb-Kenyon Law in the light
thus thrown upon it by the Wilson Act and
the decisions of this court which sustained^
and applied 1^'there is no room for doubt?
that it WB* enacted simply to extend that
which was done by the Wilson Act; tliat is
to say, Its purpose was to prevent the im-
munity characteristic of interstate com-
merce from being used to permit the receipt
of liquor through such commerce in state*
contrary to their laws, and thus in effect
afford a means by subterfuge and indirec-
tion to set such laws at naught. In thi»
light it is clear that the Webb-Kenyon Act.
il effect ii to be given to its text, but
operated so as to cause the prohibitions of
the West Virginia law against shipment^
receipt, and possession to be applicable ani
controlling irrespective of whether the state
law did or did not prohibit the individua)
use of liquor. That such also was the em-
bodied spirit of tha Webb-Kenyon Act plain-
ly appears, since, if that be not true, the
coming into being of the act is wholly in*
explicable.
The ease in this court relied upon t«
eatabliab the contrary (Adams Exp. Co. v.
Kentucky, ESS U. 8. 100, 69 L. ed, 1267,
L.R.A.1916C, 273, 36 Sup. Ct. Rep. 824,
Ann. Cas. 191GD, 1167) clearly does not
do so. All that was decided in that eaae
was that, as the court of last resort of Ken-
tucky, into which liquor had been shipped,
had held that the state sUtute did not for-
bid shipment and receipt of liquor for per-
sonal uae, therefore the Webb-Kenyon Act
did not apply, since it only applied to
things which the state law prohibited.
The leading state case cited is Van Winkle
T. State, 4 Boyce (Del.) 578. 91 Atl. 386.
Ann. Cas. 1916D, 104. It is true in that
ease the state law prohibited shipment to
and receipt of intoxicants in local-option
territory, and if the Webb-Kenyon Law
had been applied, there would have been no
possible ground for claiming that the state
prohibitions could be escaped because the
liquor was shipped in interstate eommeroe.
Bat tlia shipment was lield to be protected
.A^iOOglC
-leiS. CIAAE DISTIUJNa CO. T. WBSTEBN UASYLAND R. <X>.
IW
KB interaUte comineTee despite tbe staU
prohibition becausa th« Webb-Kenjon Iaw
WM not correctly Applied, for the following
^reason: Coming to consider the text of that
%l*M, the court said th«t as the Webb-
'*£cDyon Act 'prohibited the shipment of in-
toxicants "only when liquor ii intended to
b« uied in Tiolation of th« law of the state,"
■nd as the liquor shipped was Intended for
personal uee, which was not forbidden,
therefore the shipment, although prohibited
b; the state law, was beyond the reach of
the Webb-Kenyon Act. But we tee no
ground for following the ruling thus made,
Bi^«^ as we have already pointed out, it
necessarily rested upon an entire miscon-
ception of the text of the Webb-Kenyon Act,
because that act did not simply forbid the
introduction of liquor Into a state for a
prohibited use, but took the protection of
interstate commerce away from all receipt
■and poBsesaion of liquor prohibited by
«tat« law.
The moTament of liquor in interstate com-
merce and tbe receipt and pose eea ion and
right to sell prohibited by the state law
baving been in express terms divested by
the Webb-Kenyon Act of their interstate
commerce character, it follows tiiat if that
set was within the power of Congress to
«dopt, there ia no possible reason for hold-
ing that to enforce the prohibitions of the
•tate law would conflict with the commerce
clause of tbe Constitution; and thla brings
us to the last question, which is:
4. Did Congress have power to enact the
Webb-Kenyon Law!
We are not unmindful that opinions ad-
verse to the power of Congress to enact the
law were formed and expressed in other
department* of the government. Opinion
of the Attorney General, 80 Op*. Atty. Gen.
88; Veto Uesaage of tbe President, 49 Cong.
Bee. 4291. We are additionally conscious,
therefore, of the responsibility of deter-
mining these issues and of Uieir serious
character.
It is not in tbe slightest degree disputed
that if Congress had prohibited the ship-
ment of all intoxicants in tbe channels of
interstate commerce, and therefore had
prevented all movement between the several
M'tates, such action would have been lawful,
f because within the power'to regulate which
tbe Constitution conferred. Lottery Case
(Champion t. Ames) 18S U. B, 321, 47 L.
«d. 492, 23 Sup. Ct. Rep. 321, 13 Am. Crim.
Kep. 6C1; Hoke v. United SUtes, 227 U.
6. 303, 67 L. ed. 623, 43 L.ILA.fN.S.) OOfl,
33 Sup. Ct. Rep. 281, Ann. Gas. 1013E,
906, The issue, therefore, is not one of an
absence of authority to accomplish in sub-
stance a more extended result than that
brought about by the Webb-Kenyon Law,
but of a want of power to reach the tmaU
accomplished because of the method resort-
ed to for that purpose. This Is certain
since the sole claim is that the act was
not within the power given to Congress to
regulate because it submitted liquors to the
control of the states by subjecting inter-
state commerce in such liquors to present
and future state prohibitions, and benc^
in the nature of things, was wanting in uni-
formity. Let us test the contentions bj
reason and authority.
The power conferred Is to r^ulate, and
the very terms of the grant would seem to
repel the contention that only probibiti^n
of movement in Interstate commerce was
embraced. And the cogency of this is mani-
fest since, if the doctrine were applied to
those manifold and important subjects of
interstate commerce as to which Congress
from the beginning has regulated, not pro-
hibited, the laistence of government under
the Constitution would be no longer pos-
sible.
The argument as to delegation to the
states rests upon a mere misconception. It
is true tbe regulation which tbe Webb-
Kenyon Act contains permits state prohibi-
tions to apply to movements of liquor from
one state into another, but the will which
causes tbe prohibitions to be applicable Is
that of Congress, since the application of
state prohibitions would cease the Instant
the act of Congreas eeased to apply. In
fact, the contaition previously made, tbat
the prohibitions of tbe state law were not
applicable to the extent that they were
broader than Vkt Webb-Kenyon Act, is in
direct conflict with the proposition as to
delegation now made.
So far as uniformity la concerned, thercM
is no question'that the act uniformly ap-?
plies to the conditions which call Its pro-
visions into play, — that Its provisions
apply to all the states, — so that tbe ques-
tion really la a complaint as to tbe want
of uniform existence of things to which the
act applies, and not to an absence of uni-
formity in the act itself. But, aside from
this, It is obvious that tbe argument seeks
to engraft upon the Constitution a restric-
tion not found In it; that is, that the
power to regulate conferred upon Congress
obtains subject to the requirement that
regulations enacted shall be uniform
throughout the United States. In view of
the conceded power on the part of Congress
to prohibit the movement of intoxicants
in interstate commerce, we cannot admit
that because It did not exert Its authority
to the full limit, but simply r^ulated to
tbe extent of permitting the prohibitions
in one state to prevent the use of inter-
state oomraerce to ship liquor from another
,A_^OOglC
lU
87 SUPREMB COURT KBPOKTXB.
OOT. Tkui,
state, Congrcai (soeeded iti antlioritj to
r«gulat«. We cut see, therefore, no force
in the Argument relied upon tested tram
the point of view of reaaon, tad we coma to
the fueition of authority.
It ia aettled, saya the argument, that In-
tentate commerce la divided into two great
daaoei, one Bmbracing aubjecta which do
not ekaet uniformity, and which, although
■ubject to the regulation of Congieea, are,
In the ahaence of auch regulation, aubject
to the control of the aeveral atatea (Coolej
V. Port Wardeni, 12 How. 2BS, 13 L. ed.
996), and the other embracing lubjecta
which do require untformitj, and which, in
the absence of legulation by CongreBs, re-
main free from all state control (Leiey t.
Hardin, 133 U. S. 100, 34 L. ed. 128, 3
Inters. Com. Kep. 36, 10 Sup. Ct. Bep. 6B1).
Ab to the first, it ia aaid, Congresa may,
when regulating, to the extent It deems
wise to do so, permit state legislation en-
acted or to be enacted to goTcrn, because
to do so would only be to do that which
would exist it nothing had been done by
Congress. Aa to the second daas, the ar-
gggument ia, that in adopting r^ulations
^Congresa ia wholly without power to pro-
■ ride for the application of state power to
any degree whatcTcr, becauae, in the ab-
sence of the exertion by Congress of power
to regulate, the suhjeet matter would have
been tree from state control; and because,
besides, the recognition of state power
der such eircumatancea would be to bring
about a want of uniformity. But granting
the accuracy of the two classifications
which the proposition states, the limitation
upon the power of Congresa to regulate
which is deduced from the classiHcations
finds no support in the authority relied
upon to sustain It. Let us see if this is
not the case by examining the authority
relied upon. What is that authorltyt The
ruling in Leisy r. Hardin, supra. But that
eaae, instead of supporting the contention,
plainly refutes it for the following reason :
Although Leisy v. Hardin declared in ex-
press terms that the movement of intoxi-
cants in Interstate commerce belonged to
that class which was free from all inter-
ference by state control in the absence of
regulation by Congress, it was at the
time in the most explicit terms declared
that the power of Congress to regulate in-
terstate commerce in intoxicants embraced
the right to subject such movement to state
prohibitions, and tliat the freedom of ii
toxicants to move In Interstate
and the protection over It from state
trol arose only from the absence of
greasional regulation, and would endure
only until Congress had otherwise provided.
niuB in that case, in pointing out that the
movanent of Intoileanta !■ interstata omi-
merce waa under Uie control of OongreM
despite the wide scope of the police author-
ity of the state over the subject, it waa
said {p. 108): "Yet a subject matter
which has beta confided excluaively to Con-
gress by the Constitution is not within the
jurisdiction of the police power of the
state, unless placed there by congressional
action." Again, referring to the uniform
operation of interstate eommerce regula-
tions, it was said (p. 109): "Hence, in-s
asmucfa aa interstate oommerce, cansistingjj
In the transportation, •purchase, sale, and*
exchange of eommoditisa, is national in ita
character, and must be governed by a uni-
form system, so long aa Congress does not
pass any law to regulate it, or allowing
the states so to do, it thereby indicates ita
will that such oommerce shall be free and
untiammeled." P^rther the court said {p.
110): "The conclusion fallows that, s«
the grant of the power to regulate com-
merce among the states, so far as one sys-
tem is required, la exclusive, the states
cannot exercise that power without the as-
sent of Congress." Again, after pointing
out that the question of the prohibition
of manufacture and sale of particular ar-
ticles was a matter of state concern, it waa
said (p. 123) : "But, notwithstanding it
is not veated with supervisory power over
matters of local adminietration, the re-
sponsibility Is upon Congress, so far as tha
regulation of Intestate commerce is con-
cerned, to remove the restriction upon tha
state in dealing with imported articles ol
trade within its limits, which have not been
mingled with the common mass of property
therein, If, in its judgment, the end to be
secured Justifies and requires such action."
And finally, after pointing out that tha
states had no power to Interfere witli the
movement of goods in interstate commerce
before they had been commingled with the
proper^ of the state, it waa said that this
limitation obtained "in the absence of con-
gressional permisBion" to the state (p.
124).
Thus It follows that although we accept
the classification of interstate commerce ia
intoxicants made in Leisy T. Hardin, we
could not accept the contention which is
now based upon that classification without
in effect overruling that case, or, what is
equivalent thereto, refusing to give effect
to the doctrine of that case announced in
terms so certain that there is no room for
controversy or contention concerning them.
But we would be required to go further
than this, since it would result that we^
would have to shut our eyes to the con-g
atruction put upon the'ruling in Leisy v.*
Hardin by Congress in legislating when
,A_^OOglC
CL&BE DISTlLLlNa CO. v. WXSTXBN MABTL&ND B. 00.
18T
tt adopted the WiUon Act, and also to
pri«ticall7 overmle the line of decision!
vhich we bave alreadj referred to mitain-
Ing and enforcing that act. Let u* see if
this ia not certain. Am wb liave alread7
pointed out, the very regulation made by
Congress in enacting the Wilion Law to
minimize the eril resulting from Tiolating
prohibitions of state law by sending liquor
through interstate commerce into a state,
and selling it in violation of such law, was
to divest such shipments of their interstate
oomnerce character and to strip them of
the right to t»e sold in the original pack-
age free from state authority which other-
wise would hare obtained. And that
Congress bad the light to enact this legisla*
tion making existing and future state pro-
hibitions applicable was the express result
of the decided cases to which we hare re-
ferred, beginning with Re Rahrer, 140 U.
S. SiS, 3G L. ed. 572, 11 Sup. Ct. Rep. 865.
As the power to regulate which was mani-
fested in the Wilson Act, and that which
waa exerted in enacting the Webb-Eenfon
Law, are esscntlall; Identical, the one being
but a larger degree of exertion of the iden-
tieal power which was brought into plaj in
the other, we are unable to understand
upon what principle we could hold that the
ane was not a regnlatiim without holding
that the other had the aame inflrmltj,—
m result which, as we iiave previously said,
would reverse Leisy T. Eardin and over-
throw the many adjudications at this court
austaining the Wilson Act.
These considerations dispose of the con-
tention, but we do not stop with stating
them, but recur again to the reason of
things for ths purpose of pointing out the
fundamental error upon which tbe conten-
tion rests. It la thia: the mistaken as-
sumption that the accidoital considerations
which cause a subject, on the one hand, to
come under state control in the absence
of congressional regulation, and other sub-
jects, on the contrary, to l>e free from state
^control until Congress has acted, are the
^essential criteria by which to tost the ques-
• tion of the power of Congress to'regulate
and the mode in which the exertion of that
power may be manlteated. The two things
are widely different, since the right to r^-
ulate and ita scope and the mode of exer-
tion must depend upon the power possessed
by Congress over the subject regulated.
Following the unerring path pointed out
by that great principle we can sea no rea-
son for saying that although Congress, in
view of the nature and character of intoxi-
cants, had a power to forbid their move-
ment In interstato commerce. It bad not tbe
authority to so deal with the subject as to
establish a regulation (which Is what was
done by the Webb-Eenyon Law) making it
impossible for one state to violate the pro-
hibitions of the laws of another through
the cliannels of interstate commerce. In-
deed, we can see no escape from the con-
clusion that if we accepted the proposition
urged, we would be obliged to announce
the contradiction in terms that because
Congress had exerted a regulation lesser
in power than it was authorized to exert,
therefore its action was void for excess of
power. Or, In other words, stating the
necessary result of the argument from a
concrete consideration of the particular
subject here involved, that because Con-
gress, in adopting a regulation, had con-
sidered the nature and character of our
dual system of government, state and na-
tion, and instead of absolutely prohibiting,
had so conformed its regulation as to pro-
duce co-operation iMtween the local and na>
tional forces of government to the end of
preserving the rights of all, it had there-
by transcended the complete and perfect
power of regulation oouferred by the Con-
stitution. And it is well again to point
□ut that this abnormal result to which the
argument leads concerns a subject as to
which both state and nation, in their re-
spective spheres of authority, possessed the
supramest authority before the action of
Congreas which is complained ol; and
henee the argument virtually comes to the
assertion that. In some undisclosed way, by
the exertion of eongreaaional authority,
power possessed has evaporated. m
* It is only necessary to point out that the?
considerations which we have stated dia-
pose of all contentions that the Webb-Een-
yon Act ia repugnant to tbe due process
dense of the 6th Amendment, since what
we have taid concerning that clause in the
I4th Amendment as applied to state power
is decisive.
Before coo eluding, we come to consider
what we deem to be arguments of incon-
venience which are relied upon; that is,
ths dread expressed that the power by
r^ulation to allow state prohibitions to
attach to the movement of intoxicants lays
the bssis for subjecting interstate com-
merce in all articles to state control, and
therefore destroy* the Constitution. The
want of force in the suggested inconven-
ience becomes patent by oonsidering the
principle which, after all, dominates and
controls tbe question here presented; that
is, the subject r^ulated and the extreme
power to which that subject may be sul)-
jected. The fact that regulations of liquor
have been u[AeId In numberless instances
which would bars been repugnant to the
great guaranties of the Constitution but
for the enlarged right possessed by govern-
,A_.OOglC
1S8
S7 SUFIIEME COUBI BEFOKTEB.
Oct. Tax,
ment to r%uUt« liquor tu aerer, thai
•T« anare of, been token ee ^Botiiug the
basis for the thought that government
might exert an enlarged power as to eub-
jects to which, under the conBtitutionsI
guarintieB, suck enlarged power could not
be applied. In other words, the exceptional
nature of the subject here regulated ia the
basia upon which the exceptional power
exerted muat rest, and aSords no ground
for ajif fear that such power may be con-
stitutionally extended to things which it
tnaj not, coDslBtenti/ with the guaranties
of the Constitution, embraosb
Affirmed.
(ta V. 6. 633)
ATLANTIC COAST LINE RAILROAD
COMPANY, Pia. in Err,
Courts «=>39S(3)— Ebrob to State Coitbt
—Federal Quxsnon— How and Wheh
Raised.
The refusal of the state trial court,
npheld bj the highest murt of the atate, to
admit testimony in aupport of a claim under
the Federal ^ployers' Liability Act of
April 22, leOS (35 Stat, at L. 66, chap. 140,
Comp. Stat. 191S, g 8857), is not a denial
of a Federal right which the Federal Su-
preme Court can review hj writ of error,
where such claim was not asaerted at a
time or in a manner calling for its considera-
tion bj tha higheat et«te court under its
eetabiished ajebem of practice and pleading,
it not having been presented until after the
plaintiff had rested in the second trial of
the caae after it had once been talcoi to the
highest atate court, and after the defendant,
upon the opening of the second trial, had
amended its answer bj adding a new defenae,
without mentioning or in anj manner at-
tempting to plead the Federal claim, and
where the assertion of the claim even at that
stage of the trial conaisted only of a tender
of testimony without any application to
amend the
IBd. Not*— F^r other cui«i,
Die 1 USD; Dec. Dig. «=^
B Coarts, C
IN ERROR to the Supreme Court of the
State of South Carolina to review a
judgment which, on a aecond appeal, affirmed
a judgment of the Circuit Court of
Richland County, In that state, in favor oi
plaintiff in an action for wrongful death.
Dismissed for want of jurisdiction.
See same case below, 100 S. a 375, 8ft
S. E. 372.
The facts are stated in the opinion.
Messrs. Frederic D, McUcuney, P. A.
Willcax, L. W. McLemore, and Douglas Mo-
Kay for plaintiff in error.
Messrs. William S. Nelson, Jo-Berry
Sloan Lylea, J. Team Gettys, and John IL
Clifton for defendant in error.
Mr. Justice Clarke delivered the opiQ<
ion of the court:
On December 10th, 1910, John J. Mimi,
a ear Inspector in the employ of the plain-
tiff in error, when attempting to cross a
trade to inspect a train of cars which badn
juat'arrived, was run down and killed by?
a switching engine at a public croBaing in
the city of Sumter, South Carolina.
In April following this suit was com-
menced by the filing of a complaint, which
charges actionable negligence and alleges
that the defendant owned and operated a
line of railway described as wholly within
the state of South Carolina. There is
nothing In the complaint tending to stat«
a cause of action under the Federal law.
To this complaint the defendant filed an
answer which is a specific denial under the
South Carolina Code of Civil Procedure and
which containa two separate defenses. The
first defense admits that Mims was killed
at the time alleged, admits the paragraph
alleging that the defendant, at the time of
the accident complained of, owned and
operated the line of railroad described as
b«ng wholly within the state of South
Carolina, and denies alt the other allqr<^
tions of the complaint. The second de>
fcnee ia one of contributory negligence.
Upon this complaint and answer the case
went to trial, and when the testimony was
all introduced the trial court granted a
nonsuit, which was reversed by the supreme
court of the state with an order remanding
the case for a new trial.
When the case was coiled for the second
trial the defendant asked leave to amend
its answer by pleading "gross and wilful
contributory negligence" on the part of de-
oeased, which was granted, and the trial
proceeded until plaintiff rested her caae.
Up to this time no claim had been mads
by defendant and no facts had i>een pleaded
or evidence offered by either party from
which it could be inferred that the deceased
at the time of his death was engaged in
interstate commerce, or that the Federal
Employers' Liability Act was in any manner
applicable to the case.
When the plaintiff rested her case on th»
le topic * KST-NUUBBB In all Kar-NnmlMrsd Dlc«aU ft Indeiea
^ic
ATLANTIC COAST LINX R. 00. T. MI118.
Uft
gMoond trial, the defendant lor the first
• time oBernl to introdace •testltnon j whieli
It ia elalmed, if admitted, would have tend-
ed to prove tb&t the train whieh the de-
eeaeed waa in the act of approaching to
inspect when be was killed "was engaged
in interstate commerce and that the de-
eeaaed was in this respect and otherwise
engaged in interstate commerce." The
trial court rejected this proSer of testi-
mony on the ground that it came too lata
and was not relevant to anj Usue tendered
bj the pleadings in the case. No applica-
tiOB was made for leave to amend Uie an-
swer bj adding the claim under the Fed-
The practice differs in the eonrta of the
various atates as to what testimony may be
Introduced under "a specific denial," such
as waa filed in this case, and the supreme
BOort of South Carolina, while recognising
fully the ruling character of the Federal
Employers' Liability Act when the facts
mailing it applicable are properly pleaded,
yet, upon full and obviously candid and
competent consideration, decided, as we
have seen, that, under the eettled rales of
Reading tai that state, the evidence tendered
was not admiaaible. The essential justice
of this decision, which is the fundamental
Uiing, commends It to our favor. The evi-
igmea admitted in the case shows that the
train which the deceased waa about to in-
apect when he waa killed was a local freight
train, with a run habitually, and on the
morning of the accident complained of,
wholly within the state of Bouth Carolina.
If the relation of the deceased to the traffle
which this Intrastate train carried was such
■• to give an interstate character te his
■ervlce, that fact mnst have been known
to the defendant from the day the accident
occurred, and it oould not possibly have
been known to the plaintiff, and tiierefore
mrprlse and delay certainly, and possibly
defeat of plaintiff's claim under atatutes
«f limitation, must have been the inevitahle
reault of permitting the introduction of the
S proffered testimony late in the second trial,
• without the Federal'ri^t clUmed from it
having been "apeclally set up and claimed"
In the answer of the defendant.
The plaintiff recovered a Judgment, which
the supreme court affirmed.
nis epitome of the action of the state
eoort shows that the d^m under the Fed-
oral statute now made waa not presented
tmtil alter the plaintiff had rested in the
■econd trial of the case after It had been to
the supreme court, and after the defend-
■nt, upon the opening of this second trial,
had amended ita answer by adding a third
defense, without mentioning or in any man-
ner attempting to plead the Federal claim.
Even at this stage of the trial the assertion
of the claim consisted only in a tender of
teatimony, without any application to
amend the answer.
To become the basis of a proceeding in er.
ror from this court to the supreme court of
a state "a right, privilege, or immunity"
claimed tinder a statute of the United
States must be "especially set up and
claimed," and must be denied by the state
court. Rev. SUL | 709, Judicial Code,
I 237 [36 Stat, at L. 116«, chap. 231, Comp.
Stat. 1913, J 1214]. This means that the
claim mnst be asserted at the proper time
and in the proper manner by pleading, mo-
tion, or other appropriate action under the
state system of pleading and practice (Mu-
tual L. Ins. Co. V. McGrew, 188 U. 8. 2B1,
308, 47 L. ed. iSQ, 484, 63 L.R.A. 33, 23
Sup. Ct. Rep. S7G), and upon the question
whether or not such a claim has been so
asserted the decision of the state court is
binding upon this court, when it ii clear,
aa It Is in this case, that such decision is
not rendered in a spirit of evasion for the
purpose of defeating the claim of Federal
right. Central Vermont R. Co. v. White,
238 U. S. S07, SB L. ed. 1433, 3S Sup. Ct.
Rep. 865, Ann. Gas. ISISB, 262, 9 N. C. C.
A. 265; John v. Paullin, 231 U. S. 583, S3
L. ed. 381, 34 Sup. Ct. Rep. ITS; Erie R.
Co. V. Purdy, 185 U. S. 148, 48 L. ed. 847,
22 Sup, Ct Rep. 605; I«yton v. Missouri,
187 U. S. 3S6, 47 L. ed. 214, 23 Sup. Ct.
Rep. 137.
The plaintiff In error mistakenly argues
that, under recent decisions of this court,
it is not necessary to claim the tienefita^
of the Federal Employers' Liability Act ing
a 'pleading in a state court in order te<
obtain a review here of a deoision denying
or refusing te consider such a claim. Ref-
erence te the decisions relied upon shows
that the Federal right was in terms claimed
in the petition In Missouri, K, A T. R. Co.
T. Wnlf, 226 U. S. 679, 67 L. ed. 365, 33
Sup. Ct. Rep. 135, Ann. Caa. lgi4B, 134,
and Qrand Trunk Western R. Co. v. Lind-
say, 233 U. S. 42, 68 L. ed. 838, 34 Sup.
Ct. Rep. 531, Ann. Cas. I914C, IBS, and
that In St. Louis, I. M. ft B. R. Co. v.
Hesterly, 228 U. 8. 702, 67 L. ed. 1031,
38 Sup. Ct Rep. 703, the decision proceeds
upon the statement that, since the supreme
court of the state held the Federal ques-
tion sufficiently raised and decided it, the
objection that it was not saved was not
open in this court While it is true that
the reporte show that In St Louis, S. F.
ft T. R. Co. V. Scale, 220 U. S. 166, 67 L.
ed. 1I2S, 33 Sup. Ct. Rep. 661, Ann. Cas.
19I4C, 168, and in Toledo, St L. ft W. R.
Co. V. Slavin, 238 U. S. 454, 69 L. ed. 671,
36 Bnp. Ct Rep. 308, the Federal act was
A^iOOglC
100
n SUPBEMB COURT REPORTER.
Oct. Tu^
not apeoiaTly referred to In the plekdinga,
yet timj were in Buch form that the trial
court, either without objection or over ob-
jection which the supreme court of the state
refused to eustain, admitted testimouf
making it neceBsiry to apply the Federal
act in deciding each case, liiiB, of course,
waa equivalent to holding that the plead-
inge in the trial court were in a form to
justify the introduction ot teetimony in
support of the Federal claim, under the
ayatem of practice and pleading prevailing
In the courts of the two states in which the
caees were decided. This brings these de-
cisions clearly within the principle of the
conclusion we are announcing in this case.
While it is true that a substantive Fed-
eral right or defense duly asserted cannot
be lessened or destroyed by a state rule of
practice, yet the claim of the plaintiff in er-
ror to a Federal right not having been ae-
serted at a time and in a. manner calling for
the consideration of it by the state supreme
court under its established system ot prac-
tice and pleading, the refusal of the trial
court and of the supreme court fa) admit
the testimony tendered in support of such
nclalm is not a denial of a Federal right
f which*this court can review (Baldwin v.
Kansas, 120 U. S. 62, 82 U ed. 640, 0 Sup.
Ct. Rep. 103; F. Q. Oxley SUve Co. *. Butler
County, 106 U. S. 648, 41 L. ed. 1149, 17
Sup. Ct. Rep. 708), and therefore, for want
of jurisdiction, the writ of error is dia-
(MI IJ, S. SM)
THOMAS CUSACK COMPANT, Plff. in
Err.,
board over 12 square feet in area In any
block in which one half of the buildings
both sides of the street are used exclu-
sively for residence purposes, without first
obtaining the written consul^ of the owners
of a majority of the frontage on both sides
of Uie street In such block, may be prohibit-
ed in the exercise ot the state's police power,
and such prohibition works no denial to a
corporation engaged in outdoor advertising
of either the due process of law or equal pro-
tection of the laws guaranteed by the 14th
Amendment to the Federal Constitution.
[Ed. Mote.— Far otber esses, MS CotutltuUonal
lAv, Cent. Dig. I) eS8, SU, «T. (H, SK-gtt; Dee.
Dig. C=>210a). m(i).]
Argued December 20 and 21, lOlB. Decided
January 16, 1017.
ivCTsed, with directions to diamiaa the bill,
decree of the Superior Court of Co<A
County, in that state, restraining the en-
forcement of a municipal ordinance r^^lat-
iug the erection and maintenapoe of bill-
boards in residence districts. ASbmed.
See same ease below, 267 111. 344, 108 H.
E. 340, Ann. Cas. IQldC, 488.
The facts are stated in the opinion.
Messrs. John 8. Htunmer and Jamaa S.
McQrath tor plaintiff in error.
Meesra. Loring B. Hoover. Ohester B.
Cleveland, and Samuel A. Etteloon lor da-
fendants in error. |.
CITY OF CHICAGO et al.
CouiiTS ^=>368(8)— Ebbor to Statk Coubt
— SCOPB OT RtVIIW—^JUSBTlON OF LOCAL
1. The decision of the highest court ot
a state iiiat a certain mnnioipal ordinanee,
challenged as repugnant to the Federal Con-
stitution, is within the scope ot the powers
conferred by the state le^slature upon a
municipality, is conclusive upon the Feder-
al Supreme Court on writ of error to the
state court.
[Bd, Notn,— For oUiar earn, see Courts, OMt.
Dig. IE K2. 9*1; D«. Dig. ^=33W(t).l
UuNtciP&L CoRFOBATiona ^s602— Poucz
Power— Validity or Muhioipai. Obdi-
iTANCE— Bill boabds.
2. A municipal ordinance passed under
authority delegated by the state legislature
to regulate or control the construction and
maintenance of billboards is a valid exercise
of the police power unless it is clearly un-
reasoneDle ana arbitrary.
[Bd. Nets.- For otber cosea, see HnDlidpal
Corporatlona, Dec. Dig. ^=9<KII.]
ConSTITTJTIOSAL LAW ^=3240(1), 2»6(2) —
Due Pbocess of Law— ICqoal Pboteo-
iioN OF THE Laws — Poliob Powbb —
RzuuLATi.vo Bill BOABDS.
3. Tbe erectiOD ot an; billboard or sicn-
^sForotbarrju*
* Mr. Justloe Clarke delivered the opinionr
of the court:
In this proceeding the plaintiff In error,
a corporation engaged in "outdoor adver-
tlsing," claims that g 707 of article 23 of
an ordinance ot the city of Chicago, govern-
the erection and maintenance ot hill-
boards in that dty, is unconstitutional.
This section ia as follows:
"707. Frontage consents required. — It
shall be unlawful for any person, firm or
corporation to erect or construct any bill-
board or signboard In any block on any
public street in which one bait ot the build-
ings on both sides of the street are used
exclusively for residence purposes wiUiout
first obtaining the consent in writing of
the owners or duly authoriied agents ot
said owners owning a majority of the
frontage of the property on both sides of
the street in the block In which such blU-R
board or* signboard is to be erected, con-f
atructed or located. Such written consents
shall be filed with the conunlerioner of
buildings before a permit shall be issued
for the erection, construction or looatioa
of such billboard or signboard." ^^
topic * KBT-NUMBBR In aU Ker-Humbere* DlM««e * I»*«^y^
UlS
CUSACK C0JIPA5T t. CHICAOa
m
Tb* plaintiff In error ezprtsalj eoQMdw
In this court that it I* within the police
|>OW«r of the ait7 of Chicago to exercise
within the city llmita a reamnable regula-
tlon and oontrol over the eonstmction end
maintenance of billboBrds and other eimllar
■tmeturea. But It ia coateDded Uiat the
Mctton quoted ia in terms "an arbitrary,
nnreatrained" exercise of power, which, if
given effect, conld be nied without any re-
gard "to the ■alety, health, morala, comfort,
or welfare of Uie public," and that it there-
foro offeadj against the Cth and 14tb
Amendments to the Constitution of the
United SUtea.
ObTiDusIy, claims made under the Cth
Amendment need not be considered (Lfr-
IngstoQ T. Moore, 7 Pet. 4S0, 061, B L.
•d. TSl, rei; Uoyd v. Dollieon, 194 U. B.
MB, 48 li. ed. 1062, 24 Sup. Ct Rep. 703),
and there remain* only the question wheth-
er the ordinance, if enforced, would work
"a denial to tiie plaintiff in error of the
equal protection of the laws," or would
"deprive it of ita property without due
process ot law."
The claimed infiimity In the ordinance
eonsista in the requirement that before any
billboard or signboard of over 12 square
feet in area may be erected in any block
in which one haU of tbe buildings era used
excluBively for residence purposes, the own-
ers of a majority of Om frontage of the
property on both sides ot the street in snch
block shall consent in writing thereto.
TbiM, It Is clahned. Is not an exercise by the
city of power to r^ulate or control Uie
eonstruction and maintenance of billboaTds,
but Is a delegation of legislative power to
the ownere of a majority of the frontage
of the property In the block "to subject
Uie use to be made of their property by thd
minority owners of property In such blook
to the whims and caprice* of their neigh-
cJlKir*."
? 'Hie supreme court of the state of IIU-
nois sustained the validity of the ordinanee
in an opinion (2S7 111. 344, 108 N. E. 340,
Ann. Gas. IQIGC, 488) which declares that
the act of the legislature of that atate,
passed in 1912 (Eurd'i SUt. 1913, chap.
£4, 1 696) ia a clear legislative declaration
that the subject of billboard advertising
ahall be subject to municipal control.
It Is settled for this court by this de-
elaion that the ordinance assailed is within
the scope of the power conferred on the city
«f Chicago by the l^islature, that It is
to be treated m proceeding from the law-
making power of the state, snd that, there-
fore, it I* a valid ordinance unless the
record shows It to be ole»rly unreaaonable
and arbitrary. Relnman t. Idttle Bock, 237
D. 8. 171, 69 L. ed. MO, 35 Sup. Ct. Eep.
511.
Upon the question of the reasonableness
of the ordinance, much evidence was intro-
duced upon the trial of the case, from which
the supreme court finds that fires had been
started In the accumulation of combustible
material which gathered about such bill-
boards] that offensive and insanitary
accumulations are habitually found about
than, and that they afford a convenient
concealment and shield for immoral praa-
tlces, and for loiterers and criminals. As
bearing upon the limitation of tbe require-
ment of the section to blocks "used excln*
slvely for reaidenee purpoeet," the court
finds that the trial court erroneously re-
fused to allow testimony to be introduced
tending to show that residence sections of
the city did not have as full police or fire
protection aa other sections have, and that
the streets of such sections are more fre-
quented by unprotected women and chil-
dren than, and are not so well lighted as,
other sections of the city are, and thab
most ot the crimes e.galnst women and chil-
dren are offenses against their persons.
Neglecting the testimony which was ex-
cluded by the trial court, there remains
sufflcittit to convincingly show the pro-
priety ot putting billboards, as distin-^
guiahed from bnildings and fences. In a classn
by themselres (St. Louls'Gunning Adver-*
tialng Co. T. St. Louis, 235 Mo. 90, 137 8.
W. 929), and to justify the prohibition
against their erection in reaidenee districts
of a city In the Interest of the safety,
morality, health, and decency of the com-
munity.
The claim I* palpably frivolous that the
validity of the ordinance li impaired by
the provision that such billboards may be
erected In such districts as are described
if tbe consent in writing Is obtained of the
owners of a majority of the frontage on
both sides ot the street in any block in
which such biliboard U to ba erected.
Tlie plaintiff In error cannot be injured,
but obviously may be benefited, by this
provision, for without It the prohibition
of the erection of such billboards in such
residence sections is absolute. He who Is
not Injured by the operation of a law or
ordinance cannot be said to be deprived by
It of either constitutional right or of prop-
erty. Tyler v. Judges of Ct. of Registra-
tion, 179 U. S. 406, 45 L. ed. 262, 21 Sup.
Ct. Rep. 200; Plymouth Coal Co. v. Penn-
sylvania, 232 U. S. 631, 68 L. ed. 713, 34
Sup. Ct. Rep. 369. To this we may add
that such a reference to a neighborhood of
tbe propriety ot having carried on within
it trades or occupations which are prop-
erly the subject of regulation in the exer>
,A_iOOglC
IDS
87 SUPREME GOUKT REPORTBR.
Oat. TXBU,
cise of Uie police power U not uncommon
in I&WB which have been sustained againat
«very possible claim of unconstitutionality,
euch as the right to maintain saloonB
(Swift V. People, 1S2 111. 534, 33 L.R.A.
470, 44 N. E. 528), and as to the location
of gu-ages (People ez rel. Busching v.
EriCBsoQ, 263 111. 36S, L.R.A.1916D, 60T,
105 N. E. 316, Ann. Ca*. 191EC, 183).
Buch treatment is plain); applicable to
eSensive structures.
The principles govenilng the exercise of
the police power hare receiTed such fre-
quent application and have been so elabo-
rated upon in recent declBiona of this court,
<wncluding with Armour Jb Co. t. North
Dakota, 240 U. S. 610, 614, 60 L. ed. 771,
775, 36 Sup. Ct. Rep. 440, Ann. Caa. 1B16D,
S48, that further dlicusBion of them would
not be profitable, especially in a caae fall*
ing as clearly as this one does within their
scope. We therefore content ourselves with
eaying ttiat white this court has refrained
Ktrom any attempt to define with precision
*the limits of the poiiee'power, yet its dis-
position is to favor the validity of laws
relating to matters completely within the
territory of the state enacting them, and it
so reluctantly disagrees with the local legis-
lative authority, primarily the judge of
the public welfare, especially when its
action is approved by the highest court of
the state whose people are directly con-
«erned, that it will Interfere with the action
of such authority only when it Is plain and
palpable that it has no real or substantial
relation to the public health, safety, morals,
or to the general welfare. Jacobeon t.
MassachusetU, 1B7 U. 8. 11, 30, 49 L. ed.
«43, 661, 26 Sup. Ct. Rep. 368, 3 Ann. Cas.
766. And this, for the reasons stated,
«anDOt be said of the ordinance which we
have here.
The plaintiff in error relies chiefly upon
Eubank r. Richmond, 226 U. S. 137, 67 L.
ed. 166, 42 L.R,A.(N.S.) 1123, 33 &up. Ct.
Rep. 70, Ann. Cas. 1S14B, 1S2. A sufficient
distinction between the ordinance there con-
sidered and the one at bar is plain. The
former left the establishment of the build-
ing line untouched until the lot owners i
should act, and then made the street com-
mittee the mere automatic register of that
action, and gave to it the effect of law.
The ordinance In the case at bar absolute-
ly prohibits the erection of any billboards
in the blocks designated, but permits this
prohibition to be modified with the consent
of the persons nho are to be most affected
by such modification. The one ordinance
permits two thirds of the lot owners to
impose restrictions upon the other prop- :
erty in the block, while the other permita
one half of the lot owners to remove a re-
■trlction from the other property owners. ,
This is not a delc^tion of It^lative power,
but is, as we hare seen, a familiar pro-
vision affecting the enforcement of laws and
ordinances.
It results the.t the Judgment of the So*
preme Court of lUiDoIs will he afi^rmed.
Uf, Justice HoXttima, dissents.
UNITED STATES. (No. 189.)
MAURY I. DIGGS, Petitioner,
UNITED STATES. {No. 183.1.
U T. HAYS, Petitioner,
UNITED STATES. (No. 464.)
Statutes ®=»217, 220 — Conbtbuctioh—
NAia or AcT—CouiaTTCE Bepobt,
1. The name given to a congressional
enactment by way of designation or descrip-
tion in the act or the report of the com-
mittee accompanying Uie introduction of the
bill into the House of Representatives can-
not change the plain implication of the
words of the statuto,
[Ed. Kate.— Per othsr casM, le* StatutM, CaaL
Dll. II 99S. 19S ; Dw. DIE- «=t21T, 120.)
Pbostitution *=»1— Whitb Slavc TnAf-
nO— NORHEBCZKABT TSAltSFOBTATTOn,
2. Transportation of a woman in later-
state commerce in order that she may b*
debauched or become a mistress or eon-
cubine, although unacoompanied by Uke ez-
Eectation of pecuniary gain, is condemned
y the provisions of the White Slave Traffic
Act of June Z5, 1910 (36 Stat, at L. 626,
chap. 3BG, Comp. Stat. 1913, g 8ai3), mak-
ing It an offense knowingly to transport or
cause to be transported in interstate com-
merce any woman or girl tor the purpoM
of prostitution or debauchery, or lor any
other immoral purpose, or with the intent
or purpose to induce such woman or girl
to become a prostitute, or to give herself
up to debauchery, or engage in any other
immoral practice.
[Ed. Nota,— For other cuea, sM Prostitution.
Cent. Die || 1, I: Dec. Dls. ft=tL]
OomiBBCX #=16— PowKs or Conqbess —
Whitb Slavi TRAFnc.
3. Construing as applicable to trans-
portation, unaccompanied by the expecta-
tion of pecuniary gain, the provisions of the
White SUve Traffic Act of June 25, 1910
(36 Stat, at L. 825, chap. 395, Comp. SUt.
1S13, g 8613), mnking criminal the trans-
portation or Uie causing to be transported,
or the obtaining, aiding, or assisting in the
transportation in int^tata commerce of
women or girls for the purpose of prostitu-
tion, debauchery, or other immoral purposes.
does not render the statute invalid as In ex-
ess of the constitutional power of Congres
ver interstate commerce.
[Hi. Note.— For other caset, •■« I
snt. DIK. 1 1; Dee. Vs. «=3l<L]
<K:=»For oUm csms se
)• topic * KaT-NUUBEB la aU Eejr-Numbo^ Dlsesla *
"VMW^ic
1011
CAMINETTI T. xnnTBD STATES.
m»
Cbiiukai. Law «=s787(1) — Aocused xb
WlTXEBB — GOllUENT OS OMISSIONB IN
Tbstimont— Seut- CBimN&TiON .
4. An acciiaed who t«keB th* itand In
bis own beliaif and voluatarily testiSee for
bimulf m&; not atop ahort io bia teatimony
bj omitting and failing to explain incrim-
inating circumetaiices and eventa already
in evidence in niiicli he participated, and
concerning which he it fwlly Informed, with-
out subjecting his silence to the inferencea
naturally to be drawn from it, and justify-
ing eomtnent by tha court in hia charg« to
the effect that the jury may take thia omia-
dcm into conaideration in reaching a Terdict.
[Ed. Note.— For other cbim, im Criminal Idw,
Cent. Dig. t 19M: Dec Dig. *=J8T(1).]
CnnnRAL Law «=9ll73(2}— AppEAi^-Bas-
nTBAL TO iNSTEnCI^-TKBTlMONT 0» Ao-
5. A conviction under the White Slave
Traflic Act of June 2E, ISIO (36 SUt. at
L, tt2S, cliap. 305. Comp. Stat. 1913, § 8813),
■talcing criminal the transportation or the
causing to be transported, or the obtaining,
aiding, or assisting in the transportation in
interstate commerce of women or girls for
the purpose of proatltation, debauchery, or
other immoral purposes, will not tie ravened
because of the refusal of the trial court to
instruct the jury that the testimony of the
women naa Uiat of accomplices, and waa to
be received with great caution, and to ba
believed only when corroborated by other
testimony.
(Bd. Not*.— For othsr caaa. ■•• CMmlnal Law
Cent. Dlj. I »l«5j D«, Dig, *=.un").j '
[Nos. 139, 163, and 484.]
Argued Xovember 13 and 14, 1016. Decided
January 16, 1817.
TWO WRITS of Certiorari to the United
8tatea Circuit Court of Appeals tor the
Ninth Circuit to review judgments which
•IBrmed convictions in the District Court
ot the United Statea for the Northern Dia-
trict of California ot violationa of the
White Slave Traffle Act. AfHrmed. Also
ON WRIT ot Certiorari to ths United States
Circuit Court of Appeals for the Eighth
Circuit to review a judgment which affirmed
■m conviction In the District Court for tha
Western District ot Oklahoma of a viola-
tion Of the Whito SUn TnfAc Act. Al-
See same caae below, in Noa. 130 and 163,
13S C. C. A. 147, £20 Fed. MS, in No.
464, 146 C. C. A. 204, 231 Fed. lOB.
The facts are stated in ths opinion.
Messrs. Joseph W. Bklley, Marshall B.
Woodvrorth, and Robert T, Devlin for peti-
tlonera in Nos. 130 and 163.
Mr. Hftrrj' O. Olasaer for petitioner In
No. 464.
Aasistant Attorney Oeneral Wallace tor
the United SUtes.
• Mt. Justice Day delivered the opinion of*
the court:
These three esses were argued together,
and may be disposed ot In a single opinion.
In each of the cases there was a conTletion
and sentence tor violation of the so-called
White Slave Traffic Aet of June 26, 1010
(36 SUt. at L. 826, chap. 306, Comp. Stat.
1013, J SS13), the judgments were affirmed
by the circuit courts ot appeala, and writs
of certiorari bring the cases here.
In the Caminetti Case, the petitioner waa
Indicted in the United SUtes district court
for the northern district of California,
upon the 6th day of May, 1013, for al-
leged violationa ot tbe act. The indictment
waa in four counts, the flrst ot whioh
efaarged him with transportli^ and causing,,
to be transported, and siding and assiftingiB
in* obUining transporUtion tor a cerUIn*
woman from Sacramento, California, to
Reno, Nevada, in intersUte commerce, for
the purpose of debauchery, and for an im-
moral purpose, to wit, that the aforesaid
woman should be and become his mlstreas
and concubine. A verdict ot not guilty waa
returned as to the other three counts of
this indictment. As to the first oount, de-
fendant was found guilty and sentenced to
imprisonment for elghUen months and to
pay a fine ot (1,500. Upon writ ot error
to the United Statea circuit court ot ap-
peals tor ths ninth circuit, that judgment
was affirmed. 13S a a A. 147, 220 Fed.
C45.
Diggs was Indicted at the same time
aa waa Caminetti, upon six counts, wltb
only four of which are we concerned, in-
asmuch as there was no verdict upon ths
last two. The first count charged the de-
fendant with transporting and causing to
be transported, and aiding and assisting
In obtaining transporUtion for, a eertaln
woman from Sacramento, California, to
Reno, Nevada, tor the purpose of debauch-
ery, and for an immoral pnrpoae, to wit,
that the aforesaid woman ahouM be and
become his concubine and mistrese. Hie
second count charged him with K like of-
fense as to another woman (tha eompauira
of Caminetti) In transporUtion, etc., from
Sacramsnto to Reno, tJiat she might be-
came the mistress and concubine of Cami-
netti. The third count charged him
(Dtggs) with procuring a ticket for the
first-mentioned woman from Sacramento to
Reno in inUrstate commerce, with the In-
tent that she should become his concubine
and mistrcsa. The fourth count made a
like charge as to the girl companion of
Caminetti, Upon trial and verdict of
guilty on these four counts, he was sen-
tenced to imprisonment for two years and
to pay a fine of (2,000. As In the Garni-
W topic ft KXT-NUUBER in all K«T-Mn»b«^ DlgesU ft Indexaa
S7 SD^SEMB OOUST BKPORTEB.
Om. "TrnM,
Mtti MM, that Judgment wm affirmed by
th* «ireuit court of appeals. 130 C. C. A.
^ 147, 220 Fed. 045.
Eltatea district court for the weBtem dis-
trict of Oklahoma againat Hajs and aa-
uthar, charging violationa of the act. The
Srst count charged the said defendants
with having, on March 17th, IB14, per-
suaded, Induoed, enticed, and coerced a ear-
tain woman, unmarried and under the age
of eighteen years, from Oklahoma City,
Oklalioma, to the city of Wichita, Kansas,
in Interstate commerce and travel, for the
purpose and with intent then and there to
induce and coerce the said woman, and in.
tending that she should be induced and
eoarced to engage in prostitution, debauch-
ery, and other immoral practdcea, and did
then and there, in furtherance of auch pi
poaes, procure and furnish a railway ticket
entitling her to pasaaga over the line of
railway, to wit, the Atchison, Topeka, A
Santa Fa Railway, and did then and there
and thereby, knowingly entice and
the laid woman to go and to be carried and
transported a* a passenger in interstate
eommeroe upon uid line of railway. The
second count charged that on the same date
the defendants persuaded, induced, enticed,
aad eoerced the aasie woman to be trans-
ported from Oklahoma City ta Wichita,
Kansas, with the purpoM and intent to iu-
Auce and coerce her to engage in prosti-
tution, debauchery, and other imnioral
practioM at and within the state of Kan-
sas, and that they eutteed her and caused
Ikcr to go and be carried and transported
as a passenger in interstate commerce from
Oklahoma City, Oklahoma, to Wichita,
Kaoaaa, upon a line and rout* of a com-
mon carrier, to wit: The Atchison, To-
peka, t Banta Fe Railway. Defendants
were found guilty by a jury upon both
counts, and Hays was sentenced to im-
prisonment for eighteen montha Upon writ
of error to the circuit court of appeals for
the eighth circuit, judgment was afGrmed
(14S C. C. A. 294, 231 Fed. 100).
^ It is contended that the act of Congress
■< is intended to reach only "commercialized
• rice," or the traffle In women*for gain, and
that the oonduet for which the several pe-
intionsrs were indicted and convicted, how-
ever repreheiisible in morals, is not within
the purview of the statute when properly
construed in the light of ita history and
the pnrposM intended to be accomplished
by its enactment. In none of the casu
was It charged or proved that the trans-
portation was for gain or for the purpose
of furnishing women for prostitution for
Ure, and it is inaietad that, tuch being tho
caM, the acts charged and proved, upon
which conviction was had, do not come
within the statute.
It is elementary that the meaning of a
statute must, in the first fnatance, be aou^t
in the language in which the act Is framed,
and if that Is plain, and if the law is with-
in the constitutional authority of the law-
making body which passed it, the sole
function of the court* is to enforce it ac-
cording to its terms- Laks County v. Rol-
lins, 130 U. B. 002, «70, 871, 32 L. ed.
1060, 1003, 1004, » Sup. Ct. Rep. 051; BaU
Refrigerating Co. v. Sulebsrger, 167 U. a
I, 33, 3S L. ed. 001, 610, 16 Sup. Ct. Rep.
G08; United StatM v. Lexington MiU t
Elevator Co, 232 U. 8. SO0, 400, GS L. ed.
OSS, 001, L.R.A.I&1GB, 774, 34 Sup. Ct.
Rep. 337; United States v. First Nat. Bank,
234 U. S. 24S, 25B, 66 L. ed. 129S, 1303,
34 Sup. Ct. Eep. 848.
Where the language is plain and admits
of no more than one meaning, the duty of
interpretation does not ariM, and the rulM
which are to aid doubtful meanings need
no discussion. Hamilton r. Rathbone, 176
U. 6. 414, 421, 44 L. ed. 2ig, 222, 20
Sup. Ct. Rep. 160. l^ere la no ambiguity
tn the terras of this act. It la specifically
made an offense to knowingly transport or
cause to be transported, etc., in interstate
commerce, any woman or girl for the pur-
pose of prostitution or debauchery, or for
"any other immoral purpose," or with the
intent and purpose to induce any such
woman or girl to become a prostitute or
to give herMlf up to debauchery, or to
engage in any other Immoral practice.
Statutory words are uniformly presumed,
unless the contrary appears, to be used ia;p
their ordinary and usual aeuM, and witb^
the meaning commonly attributed to Hhom. *
To cauM a woman or girl to b« transported
for the purposM of debauchery, and for
an immoral purpose, to wit, becoming a
concubine or mistrew, for which Caminettl
and Diggs were convictad; or to transport
an unmarried woman, under eighteen years
of age, with the intent to induce her to
engage in prostitution, debauchery, and-
other immoral practices, for which Hays
was convicted, would seem by tho very
statement of the facta to embrace tranBpor<
tation for purposes denounced by the act,
and therefore fairly within ita meaning.
While sueh immoral purpose would be
more culpable in morale and attributed to
baser motives if accompanied with the ex-
pectation of pecuniary gain, such consider-
ations do not prevent the lesser offeuM
against morals of furnishing transporta-
tion in order that a woman may be de-
bauched, or become a mIstrMS or a concu-
bine, from being the ezeeuUon of purposM
,A_.OOglC
Ul«.
CAMJSTETTl r. UNITED BTATES.
105
within the tneanlng of tlili Ikw. To ssy the
contrarj would •hock the cammon under-
■tvidiDg ol whAt CMistltutea an immoral
pnrpoM when thoae terau are applied, aa
here, to sexual relations.
In United Stutei v. Bitty, SOS U. 8. 393,
fie L. ed. 643, 28 Sup. Ct. Kep. SOS, It was
held that the act of Congress agninit the
importation of alien women and girls for
the purpose of prostitution "and any other
Inunoral purpose" included the importation
of an alien woman to live In concubinage
with the person Importing ber. In that case
thla court said:
"All will admit that full effect must be
given to the intention of Congress aa gath-
ered from the words of the statute. There
ean be no doubt as to what elaas was aimed
at by the clause forbidding the importation
of alien women for purposes of 'prostitu-
tion.' It refers to women who, for hire
or without hire, offer their bodies to in-
discriminate intercourss with men. me
lives and example of sucb persona are in
f hostility to the idea of the family, as eon-
Jsiatlng in and springing from the union for
'life of one>man and one woman in the holy
eatate of matrimony; the sure foundation
•f all that ia stable and noble in our civi-
Uiation; the beat guaranty of that rererent
morality which ii the source of all benefl-
Mnt progress in social and political Im-
prorement.' Murphy t. Ramsey, 114 U. B.
IS, 4fi, 29 L. ed. 47, S7, S Sup. Ct Kep.
T4T. . . . Now the addition In the last
■tatate of the words, 'or for any other im-
moral purpose,' after the word 'proitltu-
tloii,* must have been made for some prao-
tieal object. Thoae added words show
beyond question that Congress bad in view
the protection of aociety against another
•lass of alien women othtf than those who
night be brought here merely for pur-
poses of 'prostitution.' In forbidding the
importation of alien women 'for any other
Immoral purpose,' Congresa evidently
thought that there were purpoaea in eon-
neetlon with the importations of alien wom-
an which, aa in Uie case of importations
for proatitutlou, were to be deemed Im-
moraL It may be admitted that, in ac-
eordanea with the familiar rule of a/usdem
feaeria, the inunoral purpoae referred to
by the words 'any other immoral purpose'
must be one of the same general claas or
kind as the particular purpoae of 'prosti-
tution' specified in tlte same clauu of the
statute. 2 Lewis's Sutherland, SUt.
Conatr. g 423, and authoritie* dted. But
that rule cannot avail the accused in thia
ease; for the inunoral purpoae charged in
the Indictment la of the same general class
or kind aa the one that controls in the im-
portation of aa alien woman for the par-
pose strictly of prostitutloa. Th» prosti-
tute may, in the popular sense, be mora de-
graded in character than the eoncubine, but
the latter none the less must bo held to
lead an immoral life, if any regard what-
ever be had to the views ijiat are almost
uaiversally held in this country as to the
relations which may rightfully, from th*
standpoint of morality, exist between man
' woman in the matter of sexual inter-
Thi^ definition of an immoral purpoas^
ks given prior to the enactment of the^
(t now under consideration, and'muat be*
presumed to have been Icnown to Congress
when tt enacted the law here involved.
(Sea the sections of the acti set forth In^
the margin.) v
• But it la contended that though the*
words are so plain that they cannot be mis-
apprehended when given their usual and
ordinary Interpretation, and although the
sections in which they appear do not in
terms limit the offense defined and punished
to acts of "commercialized vice," or the fur-
nishing or procuring of transportation of
women for debauchery, prostitution, or im-
moral practicea for hire, such limited pur-
pose is to be attributed to Congress and
engrafted upon the act in view of the
language of g 8 and the report which ac-
1 Sections 2, S, and 4 of the act are aa fol-
"Sec. t. That any person who ahall know-
ingly transport or eanae to be tiansported,
or aid or assist in obtaining transportation
for, or in transporting, in interstate or far>
eign commerce, or in any territory or in the
Diatrict of Columbia, any woman or girl for
the purpose of prostitution or debauchery,
or tor any other immoral purpose, or with
the Intent and purpose to Induce, entlc^ or
compel suoh woman or girl to become a
prostitute or to give herself up to dctiaut^-
ery, or to engage In any other unmoral prac-
tice) or who ahall loiowinglT procure or
obtain, or cause to b« procurea or obtained,
or aid or asaist in procuring or obtaining,
any ticket or tickets, or any form of trans-
portation or evidence of the right thereto,
to be used by any woman or girl in inter-
state or forugn commerce, or In any terri-
tory or the District of Columbia, in going
to any place for the purpose of prostitution
or debauchery, or for any other immoral
purpose, or with the intent or purpose on
the part of such person to induce, entice, or
compel her to give herself up to the prac-
tice of prostitution, or to ^ve herself up to
debauchery, or any other immoral practice^
meree, or In any territory or the District
of Columbia, ahall be deemed guiltr of a
felony, and upon oonviction thereof snail bs
puniuied by a line not exceeding five thou-
sand dollars, or hf impriaonment of not
v*^iOOglC
IM
»7 SDPBEUE CODBT BEPOETEB.
Oai. Tekh.
•aupuiied tbe Uw upon tU Introduction
into and labsequent pauage by tha Houm
of RepreBentatifes.
In this connection, it maj be obaerved
that while the title ol an act cannot over-
oomo the meaning of plain and unambigu-
oiu woTcU used in ite bodjr (United States
V. Fiaher, 2 Cronch, 35S, 386, 2 L. ed. 304,
813; Goodlett *. Louisvilie & N. R. Co. 122
U. S. 3D1, 40S, 30 L. ed. 1230, 1233, 7 Sup.
Ct Rep. 1254; Patterson v. The Eudora,
190 U. S. 169, 172, 47 L. ed. 1002, 1003,
23 Sup. Ct. Rep. S2l; Cornell t. Coyne, 1H2
U. 8. 118, 430, 4S L. ed. 604, 609, 24 Sup.
Ct. Rep. 383; Lapiaa t. Williama, 232 U.
S. 78, 92, G8 L. ed. el6, 520, 34 Sup. Ct.
Bep. 198), the title of this act embraces
the regulation of interstate commerce "hj
e prohibiting the transportation therein for
^ inunoral purposes of women tJid girls, and
* f or other purposes," It is true that') 8
of the act provides that it shall be known
and referred to as the "White Slave Traffic
Act," and the report accompanying the in-
troduction of the same into the House of
Bepresentatives set forth the fact that m
material portion of the legislation suggest-
ed was to meet conditions which had arisen
In the past few yean, and that the legisla-
tion was Deeded to put a stop to a Tiliain-
ouB interstate and international traffic in
women and girls. Still, the name given to
kn aet by way of designation or descrip-
tion, or the report which accompanies it,
eannot change the plain import of its
words. If the wards are plain, they give
meaning to the act, and It is neither the
duty nor the privilege of the courts to
•nter specuiativs fields in search of a dif-
ferent meaning.
Beporta to CongreM aecompsnyiog th*
introduction of proposed laws may aid
the courts in reaching the true meaning of
the legislature in cases of doubtful interpt»-
tation (Blake v. National City Bank, 2S
WalL 307, 319, 23 L. ed. 119, 120; Bate
Refrigerating Co. v. Sulzberger, 167 U. 6.
1, 42, 39 L. ed. SOI, 813, 16 Sup. Ct. Bep.
603; Cbesapeake k P. Teleph. Co. v. Man-
ning, 188 U. S. 238, 248, 48 L. ed. 1144,
1147, 22 Sup. Ct. Rep. 881; Rinna v. United
States, 194 U. S. 488, 495, 48 L. ed. 1087,
1090. 24 Sup. Ct. Rep. 816). But, as we
have already said, and it has been so often
affirmed as to become a recognized rule,
when words are free from doubt they must
be taken as the final expression of the legis*
latire intent, and are not to be added to
or subtracted from by considerations drawn
from titles or designating names or reports
accompanying their introduction, or from
any extraneous source. In other words,
the language being plain, and not leading
to absurd or wholly impracticable conse-
quences, it is the sole evidence of the ulti-
mate legislative intent. See Mackenzie v.
Hare, 239 U. 8. 299, 303, 60 L. «d. 297,
300, 36 Sup. Ct Rep. 100.
The fact, if it be so, that the act as it fi
writtoi opens the door to blackmailing
operations upon a large scale, ia no reason
why the oourta should refuse to enforce it
according to its terms, it witliin the eon-^
stitutional authority of Congress. Such^
coneiderationa are more appropriatelyad-*
dressed to the legislative branch of the gov-
ernment, which alone had authority to en-
act and may, it it sees fit, amend the law.
Lake Coun^ v. Boliins, 130 U. 8. 073, 32
L. ed. 1084, 9 Sup. Ct. Rep. 661.
more than five years, or by both such fine
and imprisonment. In the discretion of the
"Sec 3. That any person who shall
knowingly persuade, Induce, entice, or
eoerce, or cause to be persuaded, induced,
enticed, or coerced, or aid or assist in per-
suading, inducing, enticing, or coercing any
woman or girl to go from one place to an-
other in interstate or foreign commerce, or
In any territory or the District of Columbia,
for the purpose of prostitution or debauch-
ery, or for sny other immoral purpose, or
with the intent and purpose on the part of
such person that such woman or girl shall
engage in the practice of prostitution or
debauchery, or any other immoral practice,
whether with or without her consent, and
who shall theret^ knowingly cause or aid
or assist in causing such woman or Ctrl to
go and to be carried or transportea as a
passenger upon the line or route of any
common carrier or carriers in interstate or
foreign commerce, or any territory
•f a felony and on eonvictton thereof ■hall
be punished by a fine of not more than five
thousand dollars, or by imprisonment for a
term not exceeding five years, or fay both
such fine and ioiprisanment, in the discre-
tion of the court.
"Sec. 4. That anv person who shall Imow*
ingly persuade, induce, entice or coerce any
woman or girt under the age of eighteen
E!aT8, from any state or territory or the
istrict of Columbia, to any other state or
territory or the District of Columbia, with
the purpose and intent to Induce or coerce
her, or that she shall be induced or coerced
to engage in prostitution or debsuchery, or
any other immoral practice, and shall in
furtherance of such purpose knowingly in-
duce or cause her to go and to be carried or
transported as a passenger in interstate
commerce upon the line or route of any com-
mon carrier or carriers, shall be deemed
guilty of a felony, and on conviction thereof
shall be punished by a fine of not more than
ten thousand dollars, or by imprisonment
for a term not exceeding ten years, or bj
iMtb such fine and impri»>nment, in the dia-
cretion of the court."
,A_.OOglC
lOlC
flAMTW Wi'17 V. UNITED BTATBS.
187
It is further indsted th^t a different
oonitmctloii of the act than is tc
gathered from retding it ii ueceBiar; In
order to ure it from constitutioDol objee-
tioDB, faUl t« iU Tftlldit^. "Die act hu ita
conttitutionfti lanetion in the power of
Congreaa over interatite commerce. Tbe
broad character of that authorl^ wai de-
clared once for all in the judgment pro-
nounced bj thU ooiirt, ipeaktng bj Chief
Jnatice Maxahall, In Gibboni v. Ogde
Wheat 1, t L. ed. 23, and baa since been
St«adil7 adhered to and applied to a rarletj
of new condition! aa they have ariaen.
It may be conceded, for the purpose of
the argument, that CongreBB haa no power
to punish one who travele in Interstate
commerce merely because he haa the inten-
tion of committing an lll^al or immoral
act at the conclusion of the journej. But
tiiii act ia not eoncemed with such in-
stances. It ■eeka to reach and punish the
movement in inteiatata commerce of women
and girls with a view to the accomplisb-
nent of the unlawful purposes prohibited.
The transportation of paasengers in in-
terstate commerce, it has long been settled,
is within the regulatory power of Congress,
nnder the commeroe clause of tbe Consti-
tntion, and the anthority of Congress to
keep the cbannela of interstate commerce
free from immoral sjid injurioua uses has
been frequently luitained, and ia no longer
open to question.
HoreoTcr, this act has been sustained
against objections affecting Its constitu-
tionality of the character now urged. Hoke
T. United States, £17 U. S. 308, 67 L. ed.
623, 43 L.KA.(N.S.) SOS, 33 Sup. Ct. Rep.
281, Ann. Gas. 1013E, 006; Athanaiaw t.
United States, ZZ7 U. 8. 320, 67 h. ed.
S2S, 88 Sup. Ot Rep. 295, Ann. Cas. iei3£,
Dll; Wilson T. United States, 232 U, S.
6«3, 6B L. ed. T2S, 34 Sup. Ct. Rep. 347.
In the Hoke Case, the constitutional objcc-
tiona were given consideration and denied
upon grounds fully stated In the opinion
^ (pages 308 et seq.). It Is true that the
a particular ease arose from a prosecution
■ of one charged with •transporting a woman
for the purposes of prosUtution in viola-
tion of the act. But, holding as we do,
that the purposes and practices for which
the transportation in these cases was pro-
cured are equally within the denunciation
of the act, what was said in the Hoks Case
aa to the power of Congreas over the sub-
ject is WM applicable now as it was then.
After rerlewing the Lottery Case (Cham-
pion T. Ames) 1S8 U. B. 821, 367, 47 L.
ed. iK, 60], 28 Sup. CL Rep. 321, 13 Am.
Crim. Bep. 6S1, and other cases in this
court decided since the dedslon of that
case, It was said In tbe H<Ae Case (page
323):
'"Die principle established by the oases
is the simple one, when rid of confusing
and distracting considerations, that (in-
gress has power over transportation 'among
tlie aeversl states;' that the power is com-
plete in Itself, and that Congress, as an
incident to It, may adopt not only means
necessary but convenient to ita exercise,
and the means may have the quality of
police regulations. Gloucester Ferry Co. t.
Pennsylvania, 114 U. 8. 190, 216, 29 L. ed.
168, 166, 1 Inters. Com. Rep. 382, S Sup.
Ct. Rep. 82B; Cooley, Const Lim. 7th ed.
8S6. We hare no hesitation, therefore, in
pronouncing the act of June 25, 1910, a
l^al exercise of the power of Congress."
Notwithstanding tliis disposition of the
questions concerning the construction and
constitutionality of the act, certain of the
questions made are of sufScient gravity to
require further consideration.
In the Dtggs Case, after referring to tbe
fact that the defendant had taken the stand
his own behalf, and that his testimony
differed somewhat from that of the girls
who had testified in the case, end instruct-
ing the jury that it was their province
to ascertain the truth of the matter, the
court further eaidi "After testifying to
the relations between himself and Caml-
netti and these girls down to the Sunday
night on which the evidence of tbe govern-
ment t«nds to show the trip to Reno was
taken, he stops short and has given none of
the details or incidents of that trip nor anyu
dlreot statement of the intent or purpoea^
with 'which that trip was taken, contenting*
himself by merdy referring to it aa hav-
ing been taken, and by testifying to his
state of mind for some days previous to
the taking of that trip. Now' this waa the
defendant's privilege, and, being a defend-
ant, he could not be required to say more
if be did not desire to do so; nor could he
rosB-ezamined as to matters not cov-
ered by his direct testimony. But In pass-
ing upon the evidence in the case for the
purpose of finding the facts you have a
right to take this omission of the defend-
ant into eonalderation. A defendant Is not
required under the law to take the witness
stand. He cannot be compelled to testify
at all, and If he fails to do so, no inference
nnfavorable to him may be drawn from
that fact, nor Is the prosecution permitted
In that case to comment unfavorably upon
the defendant's silence; but where a de-
fendant electa to go upon the witness stajio
and testify, be then subjects himself to the
same mie aa that applying to any other
witness, and if he has failed to deny or ex-
plain acts of an Incriminating nature that
,A_iOOglC
IM
37 SUPBEME 001TRT BXPORTBR.
Ooi. Tmmu,
the evidence of the prosecution tendi t« es-
tabliab (gainst him, euch failure may not
Dtkly be commented upon, but may be eon-
Bidered bj the jury with all the other cir-
cumstances in reaching their conclusion m
to bia guilt or innocence ; since it is a le-
gitimate inference that, could be have
truthfully denied or explained the incrimi-
nating evidence against him, he would have
done so."
This instruction, it is contended, was
error in that it permitted the jury to draw
InfereDcea against the accused from failure
to explain incrimiDating circumstances
when it was within his power to do so,
and thus operated to his prejudice and vir-
tually made bim a witness against himself,
In derogation of rights secured b; tbe 6th
Amendment t« the Federal Constitution.
There Is a difference of opinion expressed
J In the cases upon this subject, tbe circuit
« court of appeals in the eighth circuit hold-
* ing a contrary view, bb also did thi^ circuit
court of appeals in the first circuit See
Balliet v. United States, 64 C. C. A. 201,
12B Fed. eS9: Myrick v. United SUtes, 134
C. C. A. 619, 218 Fed. 1. We think the
better reasoning supports the view sus-
tained in tbe court of appeals in this case,
which is that where the accused takes the
stand in his own behalf and voluntarily
testifies for himself {Act of March 16, IS78,
20 Stat, at Ik 30, ehap. 37, Comp. Stat,
ISIS, g 1466), he may not atop short in
his testimony by omitting and failing to
•zplaln incriminating circumstances and
erenta already in evidence, In which he
participated and concerning which he Is
fully biformed, without subjecting his sl-
lenca to the inferences to b« naturally
drawn from it.
The accused, of all persons, had it with-
in his power, to meet, by his own account
of the facts, tlie incriminating testimony
of the girls. When he took the witness
stand in his own behalf he voluntarily re-
linquished his privilege of silence, and
ought not to be heard to speak alone of
those things deemed to be tor his interest,
and be silent where he or his counsel re-
garded it for his interest to remain so,
without the fair Inference which would nat-
urally spring from his speaking only of
those things which would exculpate him
and refraining to speak upon matters wiUi-
in his knowledge which mi^t incriminate
him. Hie Instruction to the jury concern-
ing tbe failure of the accused to explain
acts of an incriminating nature which the
evidence for the prosecution tended to es-
tablish against him, and the inference to
be drawn from hia ^enee, must be read In
connection with the statement made in this
part id the charge which clearly shows that
tbe court was speaking with reference to
tbe defendant's silence as to the trip to
Reno with the gills named In the indict*
ment, and as to tbe facts, circumatanoei,
and intent with which that trip was talceni
and tbe jury was told that it had a right
to take into consideration that omission.
The court did not put upon the defendants
tbe burdeQ*of explaining every inculpatory?
fact shown or claimed to be establiabed
by the prosecution, ^e inference was to
be drawn from the failure of tbe accused
to meet evidence aa to these matters witli-
in his own knowledge and as to events in
which he was an active participant and
fully able to speak when he voluntarily
took tbe stand in his own behalf. We agree
with the circuit court of appeals that it
was the privilege of the trial court to call
the attention of tlie jury in such manner
as it did to this omission of the accused
when be took tbe stand in his own behalf.
See, in this connection, Brown v. Walker,
161 U. S. 691, 697, 40 L. ed. 819, 821, S
Inters. Com. Sep. 3S9, 16 Sup. Ct. Rep.
644; Sawyer v. United States, 202 U. S.
150, 165; 60 L. ed. 972, 979, 26 Sup. Ct.
Rep, 676, 6 Ann. Cas. 269; Powers v.
United SUtes, 223 U. S. 303, 314, 66 L.
ed. 448, 462, 32 Sup. Ct, Rep. 281.
It is urged as a further ground of re-
versal of the judgments below that the trial
court did not instruct the jury that the
testimony of the two girls was that of ac-
complices, and to be received with great
caution and believed only when corroborat-
ed by other testimony adduced in the ease.
We agree wltii the circuit court of appeals
that the request* in ttie form made should
not have been given. In Holmgren t.
United States, S17 U. S. S09, U L. ed. 861,
30 Sup. Ct Rep. fiSS, 19 Ann. Cas. 778,
this court refused to reverse a judgment
for failure to give an instruction of this
general character, while saying that it was
the better practice for courts to caution
juries against too much reliance upon the
testimony of accomplices, and to require
corroborating testimony before giving ct«-
dence to such evidence. While this is ao,
there Is no absolute rule of law prevent-
ing convictions on the testimony of accom-
plices If juries believe them. 1 Biehop,
Crim. Proc. 2d ed. | 1081, and cases cited
in the note.
Much is said about the dtaraeter of the
teatimony adduced aad as to certain facta
tending to establish the guilt or innocenea
of the accused, ma court does not w«a^
the evidence In a proceeding of this char-
acter, and it is enoogb to say that there
was substantial teatimony tending to anp-^
port the verdicts rendered in the trial a
'Courts. Other objectitms are urged upon*
,A_.OOglC
mo.
CAimnrm t. umrED n^Aixa
19»
OUT attention, Tnit wa And in none of them
» ■offieient re«aon for nrarjing the Jndg-
meott of the Clrenlt Conrta of Appnla In
these c«we.
The judgment in each «f tha cuea ii mf>
flnned.
Ifr. Justlea HcKeuna, diseentitig:
UndoubtAdlf, In the investigation of the
naiaiDg of k «t«tute we leeort first to its
words, snd, when olear, thej Are dealsiTs.
The principle h«8 attrsotiTe and seeming-
ly disposing simplicity, but that It is not
easj of application, or, at least, encounters
other principles, many cases demonstrate.
The words of a statute ma^ be uncertain
In their signiflcatiun or in their applica-
tion. If the words be ambiguous, the prob-
lem they present is to be resolTad bj their
deflnition; the subject matter and the lezi-
oons become our guides. But here, even,
we are not exempt from putting ourselvea
in the place of the legislators. If the words
be desr in meaning, but the object* to
which thejr are addressed be uncertain, the
problem then la to determine the micer-
taintf. And for this a realization of con-
ditions that provoked the statute miut in-
form our judgment. Let ne spplj these
obsemtions to the present case.
The transportation which is made
lawful is of a woman or girl "to become a
prostitute or to give herself up to debauoh-
oy, or to engage In an; other immoral
practlee." Our presoit concern is with the
words "anj other immoral practice," which,
it is asserted, have a special ofBce. The
words are clear anongh as general descrip-
^tious; they fail tn particular deaignstion;
tfthej are aIsss words, not speciflcationa.
• Ara the; controlled bj those which 'pre-
eada them I If not, thej are broader in
generalisation and include those that pre-
cede them, making them unnecesflai7 and
confusing. To what eondusiou would this
lead us I "InunorsJ" is a ▼ery eomprehen-
alre word- It means a dereliction o( mor-
als. In such sense it eovers every form ol
Tiee, every form of conduct that is con-
trary to good order. It will hardly be
eontended that In this sweeping sense it is
used in tha statute. But, it not used in
such sense, to what Is it limited and by
what limit«dT If it be admitted that it is
limited at all, that ends the imperative
tf ect assigned to it in the opinion of the
court. Bat not Insisting quite on that, we
ask again. By what ia it limited! By its
oontext, neceasarily, and the purpose of the
statute.
Vor tha eontvrt I must refer to the stat-
ute; of the purpose of the statuta Congress
itself has given ns illumination. It devotes
» section to the declaration that the "act
shall be known and referred to as tbt
"White Slave Traffic Act.' " And its promi-
nence gives it prevalence in the construc-
tion of the statute. It cannot be pushed
aside or subordinated by indeSnite words
in other sentences, limited even there by
the context. It is a peremptory rule of
constriictlm that all parts of a statute
must be taken Into account In ascertaining
its meaning, and It cannot be said that S 8
has no object. Even if it gives only a title
to the act, It has especial weight. United
States V. Union P. R. Co. 91 U. S. 72, 82,
23 L. ed. 224, 829. But it gives more than
a title; it makes distinctive the purpose
of the statute. He designation "white
slave traffic" has the sufficiency of an axiom.
If apprehended, there is no uncertainty as
to the conduct It describes. It is commer-
cialized vice, immoralities having a merce-
nary purpose, and tiiia is confirmed by other
circumstances.
The author of the bill was Mr. Maan,
and In reporting it from the House com-
mittee on interstate and foreign commercejs
be declared for the committee that it was$
notHhe purpose of the bill to interfere with"
or usurp in any way tha police power of
the states, and further, that it was not the
intention of tha bill to rq^Iate prostitu-
tion or the places where prastitution or
immorality was practised, which were said
to be matters wholly within the power of
the states, and over which the Federal
government had no jurisdiction. And fur-
ther explaining the bill, it was sftid that
the sections of the act had been "so drawn
that they are limited to the cases in which
there la an act of transportation in inter-
state commerce of women for the purposes
of prostitution." And again :
"Ihe WhiU Slave Trade.— A material
portion ol the legislation suggested and
proposed is necessary to meet conditions
which have arisen within the poet few
years. The legislation is needed to put
a stop to a villainous interstate and Inter-
national traffic in women and girls. Tha
legislation is not needed or intended as sa
aid to the states in the exercise of their
police powers in ths suppression or regula-
tion of immorality in general. It does not
attempt to regulate the practice of volun-
tary prostitution, but alms solely to pre-
vent panderers and procurers from compel-
ling thousands of women and girls against
their will and dealre to enter and oontinne
iu a Ufa of prostitution." Cong. Ree. vol.
fiO, pp. 33S8, 3370.
In other words, tt is vice as a business
at which the law is directed, using inter-
,A_.OOglC
200
87 SUPBBME COUBT HEPOETEB.
Ooi. Tbu^
atata commerce as a fadllty Ut procure or
distribute its victima.
In 1912 the aenae of the Department of
Justice vaa taken of tke act in a caae
where a woman of twenty-four yeara went
from Illinois, where ahe lived, to Minne-
acta, at the solicitation and expense of a
man. She was there met bj him and en-
gaged with him in immoral practices like
those for which petitioners were convicted.
The aaaistant district attorney forwarded
-her atatement to the Attorney General,
• with the comment that the element of
• traffic was absent from tiie-iransaction and
that therefore, in his opinion, it was not
"within the spirit and intent of the Mann
Act."' Replying, the Attorney Geueral ex-
preaaed his concurrence in the view of hia
■ubordinate.*
Of eourae, neither the declarations of the
report of the committee on interstate com-
merce of the House nor the opinion of the
Attorney General are oonclusive of the
meaning of the law, but they are hi
perauasive. The opinion was by one akllled
in the rule* and methods employed in the
interpretation or construction of lawa, and
informed, besides, of the conditions to
which the act waa addreaaed. The report
was by the committee charged with the
duty of investigating the necessity for the
•at, and to inform the House of the resulta
of that inveatigation, both of evil and
edy. Hie report of the committee has,
therefore, a higher quality than debates
the floor of the House. The repreaentations
of the latter may indeed be ascribed to the
aiag^erationa of advocacy or opposition.
The report of a committee is the execution
of a duty and has the sanction of duty.
There is a presumption, therefore, that the
■ "Careful constderation of the facts and
circunetances as related by Miss Cox fails
to convince me that her case came within
the qiirlt and intent of the Mann act The
element of traffic la entirely absent from
thia transaction. It is not a case of prosti-
tution or debauchery and the general words
'or other immoral practice' should be quail-
fled by the particular preceding words and
be read in tiie ll^ht of t^e rule of ejuadem
generis. This view of the atatut« b the
more reasonable when considered in coi
tion with S Si where Congress employs the
terms 'alave' and 'traffic' aa indicative of
its purpoBB to suppress certain forma of
abominable practice connected with the
degradation of women for gain."
> "I agree with your concluaion that thi
facta and circumstances set forth in your
letter and its inclosure do not bring the
matter within the true intent of the White
Slave Traflle Act, and that no prosecutii
against Edwards should be instituted
the Federal courts unless other and dlffar*
(dt facta are presented ta yon."
measure It reeommenda has the purpose itg
declares and will acoomptish it aa deolared-io
' This being the purpose^ the words of the
statute should be construed to execute it,
and they may be so construed even if their
literal meaning be otherwise. In Church
of the Holy Trinity v. United States, 143
U. S. 457, 36 L. ed. 226, 12 Sup. Ct. Bcp.
Gil, there come to this court for construe*
tlon an act of Congress which made it un-
lawful for anyone in any of the United
States "to prepay the transportation, or in
any way asust or encourage the imports^
tion or migration of any alien or aliens
any foreigner or foreigners, into the United
State* . . . under contract or agree-
ment ... to perform labor or tervioe
of anjf kind [italics mine] In the United
Statea, its territories or the District of
Columbia." The Trlni^ Church made a
contract with one E. W. Warren, a resi-
dent of England, to reman to the city of
New York and enter its service aa rector
and pastor. The church waa proceeded
against under the act and t^e circuit court
held that it applied, and rendered judg-
ment accordingly. 36 Fed. 303.
It will be observed that the language of
the statute is very comprehensive,^ — fully
as much so as the language of the act under
review, — having no limitation whatever
from the eonteztj end the circuit court, in
submission to what the court considered Its
imperative quality, rendered judgment
against (^e church. Thia court reversed
the judgment, and. In an elaborate opinion
by Mr. Justice Brewer, declafed that "it
is a familiar role that a thing may be
within the letter of the statute and yet not
within tha Btatutc^ because not within its
spirit, nor within the intention of its mak-
ers." And the learned jnatice further aaidi
"This baa been often aeaerted, and the r»
porta are full of eooes illustrating Its ap-
plication."
It is hardly neceasary to say that the ap-
plication of the rule does not depend upon
the objects of the legialation, to be applied
or not applied aa It may exclude or include
good things or bad things. Ita [M'incipte
is the simple one that the words of a stat-
ute will be extended or restricted to execute m
ita purpose. %
'Another pertinent llluatratlon of the rule*
ia Beiche y. Smythe, 13 WalL 162, SO L.
ed. 6QS, in which the oourt declared that
if at timea it was its du^ to regard the
words of a statute, at times It was also its
du^ to disregard them, limit or extend
them, in order to execute the purpoae
of the statute. And applying the prin-
ciple, it dedded that in a tariff act
the provision ttkat a duty ahonld be in-
posed c» horses, etc., and other KM ooi-
,A_^OOglC
191S.
VON BAUMBACH v. SABGEKT LAND 00.
201
mot* im ported from foreign countries
■hould not include canaiy birds, ignoring
tike eUssification of nature. And so again
in SilTer v. Ladd, 7 WaU. 210, 15 L. ed.
138, where the benefit of the Oregon Dona-
tion Act was extended by making the words
"■ingle man" uaed in the statute mean an
unmarried woman, disregarding a differ-
enee of genders clearly expreaeed in the
law.
The rule that these cases illuetrats I* a
valusble one and in Tarying degrees has
daily practice. It not only rescues legia-
lation from absurdity (so far the opinion
of the court admits its application), but it
often rescues it from invalidity, — a useful
result in our dual form of governments and
conflicting jurisdictions. It is the dictate
of common sense. Language, even when
most masterfully used, may miss lUfEciency
and give room for dispute. Is it a wonder,
therefore, that when used in the haste of
legislation, in Tiew of conditions perhaps
only partly seen or not seen at all, the
coDaequenceo, it may be, beyond present
foresight, it often becomes necessary to ap-
ply the mleT And it is a rule of prudence
and highest sense. It rescues from crudi-
ties, excesses, and deficiencies, making leg-
ialatlon adequate to its special purpose,
render iug unnecessary repeated quslifica-
tlona, and leaving the simple and best ex-
position of a law the mischief it was in-
tended to redress. Nor is this judicial
Initiation. It Is seeking and enforcing the
true sense of a law notwitlistandiog Its im-
perfection or generality of expreasion.
E There is much in the present ease to
tempt to a violation of the rule. Any meas-
• urs that proiects the purity of Vomen from
assault or entictment to degradation finds
an Instant advocate in onr best emotions;
but the judicial function cannot yield to
emotion — it must, with poise of mind, con-
aider and decide. It should not shut its
efee to the facts of the world and assume
not to know what everyliody else knows.
And STcr^body knows that there is a differ-
ence between the occasional immoralities
ot men and women and that systematized
and mercenary immorality epitomized in
the statute's graphic phrase "white slave
traffic." And it vras such immorality that
waa in the legislative mind, and not the
other. The other is occasional, not habit-
ual,— ineonsplcuouB, — does not olTensiveiy
obtnide upon public notice. Interstate
commerce is not its instrument as it is of
the other, nor is prostitution its object
or Its end. It may, indeed. In instances,
find a convenience in croseing state iinea,
but this is its accident, not ite aid.
There la danger in extending a statute
b^ond Its purpose, even if justified by a
•trict adherence to Ita words. The pur>
pose Is studied, all effects measured, not
left at random, — one evil practice prevent-
ed, opportunity given to another. The
present case warns against ascribing such
improvidence to the statute under review.
Blackmailers of both sexes have arisen, us-
ing the terrors of the construction now
sanctioned hj this court aa a help — indeed,
the means — for their brigandage. The re-
sult is grave and should give us pause. It
certainly will not he denied that legal au-
thority justifies the rejection of a oonatruo-
tion which leads to mischievous conse-
quences, if the statute be susceptible of
another construction.
United States v. Bitty, 208 U. S. 393. 52 L.
ed. G43, 28 Sup. Ot Rep. 366, is not in op-
position. The statute passed upon was a
prohibition against the importation of alien
women or girls, — a statute, therefore, of
broader purpose than the one under review.
Besides, the statute finally passed upon
was sn amendment to a prior statute, and^
the words construed were an addition tog
the* prior statute, and necessarily, there-*
fore, had an added eSect. The first sUtute
prohibited the importation of any alien
women or girl into the United States for
tht pvTpoie of prosHtutton [italics mine].
The second statute repeated the words and
added "or for any other imitiorai purpose."
Necessarily there was an enlargement of
purpose, and besides, the act was directed
against the importation of foreign corrup-
tion, and was construed accordingly. The
case, therefore, does not contradict the
rule; It is an example of it.
For these reasons I dissent from the
opinion and judgment of the court, express-
ing no opinion of the other propositions in
the eases.
I sm authorized to say that the Cmxr
Justice and iSi. Justice Clarice concur in
this dissent.
FBED VON BAUMBACH, Collector of In-
ternal Bevenue, Petitioner,
SAHOGNT LAND COMPANY. (No, 286.)
SUTTON LAND COMPANY. (No. 287.)
EEABSAROB LAND COMPANY. (No.
28S.)
iHTKBirai. Revenue ^sft— Excise on Cob>
POEATioNa— "Okqakized fob PBonT."
1. CorporatioDS formed by the ownerf i
4;3par other gshs ■«« n
IS topic * KBT-NUUBER In sU Ksr-Numbarsd DlCseU * iDdeiSS
gic
37 6UPBEME COURT K£POaT£B.
of landi for the purpoM of handling the
{iropertj and distributing the process of
ts disposition are organized for profit,
within the meaning of the Act of August 5,
190D (86 StaL at L. 112, i-hap. «), | SS.i
imposing an excise tax measured b; annual
net income upon th« carrying oii or the do-
ing of busineaa bj corporationa, joint atodc
companies, or aaHociationa orgaoized for
protit, and having a capital etock repra-
■anted bj abarea.
[Ed. Note.— for other cobeb, aae Internal Oay-
•nue, Cent. Dig. )) 13-28: Dec. Dig, «=>S.]
IBTEBRAL Revenue <S=9— Excise oh Cob-
FOBATION — DOINO BUSINEM -~ REAI/TT
CouPAMiea—" En oaoED in Bobiness."
'£. Realty cOTporationa organized for
and actually engaged in such activities as
handling large tracts of land owned by such
corporations, leasing and selling parcels
thereof, disposing of stumpage, eeeiog that
their lesseea under mining leaaes lived up
to their contracta, and distributing the
troceeda of such activities among the atoclc-
oldra'B, — are engaged in huainess within the
meaning of the Act of August 6, 19D9 (36'
Btat. at I. 112, chap. S), S 3S, impoiing an
excise tar measured hj annual net income
upon the doing or carrying on of husineai
In a corporate or quasi corporate capacity.
rXd. Note.— F^ir other caiM. Me Intsriul Ilav-
■oue. Cent. Dig. H 1S-S8: Dec Dig. «s».
For oilier deOnltlooa, am Words and Phraaaa,
First aad Second 9erl«. Sngaged.]
IitTZRNAL Retekoe *=>9— Bxcims ok Coa-
poBATioN— "Income"— B0TAI.TIK8 ssoM
Mi Nina Zxabbb.
3. The so-called royaltiea received by
tlia corporate owners of lands leased for long
terma tor the purpose of exploriug for, and
mining and removing, the merchantable Iron
ore therein, to persons who agreed to pay
monthly a specitled sum per ton for all ore
mined and shipped the previous month, and
for the minimum amount specifled and take
credit therefor, and apply eucb Bums upon
ore mined and ahipped thereafter in eiceu'
of Buch minimum, — are income, within the
meaning of the act of August 6, 1900 (36
SUt at L. 112, chap. 6), § 38, imposing a
tax meaaured Iiy annual income upon the
doing of business in a corporate or quail
corporate capacity.
[Sd. Not*.— For other case*, ih Internal Rbt-
enue. Cent. Die. H 13-28; Dec. Dig. «=3g.
For other deflnltloni, see Words and Pbruie*.
nrst and Second Ssrlee. Income.]
iNTCBNAi. Rev FIN VE 9=39— ExclSR on Cob-
PORATioN— "Depbbciatior" — EUsAns-
TION OP Mine.
4. Ezhanstlon of the ore body resulting
from the procesa of mining ii not an element
to be conaidered in determining the reason-
able "depreciation" which, under the Act of
August 5, 190B (36 Stat, at L. 112, chap.
6), ) 38, ia to be deducted from the net an-
nual income of the corporate mine owner
when asaeaaing the exclae imposed by that
aot upon the doing of bueinesa in a
porate or quasi corporate capacity.
IBd. Note.— For other caaaa, bm Internal
— ). Cent. Dig. il 13-28; Deo. DIr. «S3>.
For D
d Serciid Seriea, Deiireclata.1
IXoa. 286. 287, 288.}
Argued December IS and 14, 1916. Decided
January 15. 1917.
THREE WRITS of Certiorari to the Unit-
ed States Circuit Court of Appeals for
the Eighth Circuit to review judgment*
which affirmed judgmenta of the Dtstriot
Court for the District of Minneaota in favor
of plaintiffs in actiona to recover back cer>
taxes aasesaed under the Federal cor*
poration tax law. Reversed.
The facts are stated In the opinion.
See same case below, 134 C. a A. «4»,
SIO Fad. 31.
Aaaistant Attorney General Wallace tot
petitioner.
Messrs. John R. Van Derllp, Burt P.
Liun, and Kenneth Taylor lor respondents. •«
*Mr. Juatice Dfty delivered the <^inion of*
the court:
Tbeae three cases vrere argued and sub-
mitted together and inTohe pracUeally Qia
> facts. Suite were brought t^ the
corporations named in the United State*
district court for the district of Uinneaot*
against the collector of internal revmiue, to
recover certain taxes, paid under protect,
assessed under the Corporation Tax I«w of
1S09 (36 Stat, at L. 11, 112, chap. 6), for
the years 190S, 1»10, and 1011. The judg-
mmts in the district court were for the re.
apondents (207 Fed. 423), which judgments
were affirmed in the circuit court of a^
peels (134 C. C. A. 649, S19 Fed. 31).
In 1890, John S. Fillsbury, George A.
Pillsbury, and Charles A, Pillabury, doing
business together as John 8. Pillsbury A
Company, were the owners of large tracts of
lands in northern Minnesota, which had
been acquired for the timber and from
which the timber had been cut, being
raluahie after auch severance of the tim-
ber for the mineral deposits contained
tberein. lu the yeai named, the Pills-
burys entered into an arrangement with
John M. Longyear and Russell M. Bennett,
authorizing the latter two to explore the
lands for iron deposits. In 1892, Longyear
and Bennett having discovered valuable de-
posits of iron ore, a half interest in aoma-
thing over 10,000 acres of the lands was
conveyed to them, the lands thereafter
being owned by the Pillsbnrys, John, George^
and Charles, each an undivided sixth, and
John M. Longyear and Rusaeil H. Bennett
each an undivided fourth. In the year 1901,
the Pillsburys having died, these corpora-
tions were formed under the laws of Hitme-
sota. In 190B, the ownership of these leased
lands was vested in the three corporations
named as respondents in the proceedings.
As originally organized, the nature of th*
buiriuess waa stated to be "the buying, a^Q
1««.
VON BAUMBACH v. SARGENT LAIO} 00.
ing, exploring, and dercloplng, Icasiag, im-
proving, HUing, and dealing in lands, tone'
n menta, and hereditament*, and tlie doing vf
Tall thingi* incidental to the things above
■peclfied." In Deoember, 1B09, the articlea
of incorporation were ajnended to read as
followa: "The geneTal purpoae of the
earpoTstion Is to unite lu one ownership the
ludiTided, fractional intereata of its various
sfaMUioldera In lands, tenements, and
hereditameDts, and to own inch property,
and, for the eonvenlenoe o( ita stakeholders,
to receive and distribute to tfaem the pro-
ceeds of anj dleposition of such propertr,
at such times, in such amonnts, and in auch
Bianner aa Uie board of dlrecton may de-
All of the mining leases hereinafter men-
tloned, wiUi the exeeption of a contract with
the Van Bnren Mining Companr, were exe-
cuted before the organlEstiou of the corpo-
rations. Eadi of theae inetnimenta pro-
Tided that the owners et the property de-
mised to the lessees, exelusivelj, all the
lands covered by the descriptions, for the
psrpoee of exploring for, mining and re-
moving, the merchantable iron ore which
night be found therein for and during the
period named, uenally flfty years. The
lessee* were given ezeiuaive right to ocenpy
•ad control the demiaed premiaei and to
aiect all necessary buildings, atruetares,
and Improvements thereon. Bight was re-
•erred to the lessors to enter for the pur-
pose of measuring the amount of ore mined
and removed and making observation! of
the operations in the mines. The lessees
■greed to pay, in moat cases, fifi eents per
tm for all ore mined and removed, and to
nake such payments monthly for ore mined
wid dipped during the preceding month.
^e lessees agreed to mine and ship a speci-
fled quantity ef ere In each year, and, tn de-
tenlt ef this, to pay the lessors for the
nlnimuni amount speeifled, and take credit
Uierefor and apply such sums upon ore
Blned and shipped thereafter in excess of
■oeh minimnm. The Icesees were to pay the
«t»zea and to keep the property free from
2 SBetunbrancea and liens. Bight was re-
• served to^tenulnate the contract upon the
failure of the lesaees to comply with the
terms thereof.
llie form of the leases li shown In ex-
bibita IB and IB, which were not in the
printed reeord, owing to their length, but
eopiee ef which, pursuant to stipulation,
havs been sent to this court. An examine'
tion of exhibit 16 ahowa that the lesieea had
the right to terminate and surrender the
lease hf giving the lessors, or those having
tlirir Mtate In the premises, sixty days*
writtMi noUee, and executing suffieient ««•
TeTanees releasing aU interest and right of
the lessees in the premises with any Im-
provements thereon, and surrendering the
same in good order and condition, etc., and
that thereupon all liability of the Icsseee to
taxes subsequently asBessed on the demised
premiaea or for rent thereof thereafter to
accrue, or royalty on ores therefrom, except
on account of ores removed, ehould ceaee
and determine; the lessees to be liable for
all ores removed from the premises not
theretofore paid for, and to pay for the
premises rent or royalty for the year In
which termination should be made, or the
portion thereof which should have expired,
at the rate of (12,600 per annum.
filnce their organieation the corporations
have disposed of certain lands and have also
dispoaed of the atumpage on some timber
lands. Certain parcels were rented and
leased, and a village was allowed to use part
of the land for schoolhouse purposes, as
well as another part for a public park.
To ineure the proper carrying on of the
mining operationa, the companies employed
another corporation, engaged In engineering
and inspection of ore properties, to provide
supervieion and inapeotion of the work upon
the respondents' propertiee, for which the '
inspecting company was paid from month to
month, aa st^ements were rendered. ,
The eompaulea were asseased upon thelrg
gross Ineom^* being the entire receipts of*
the companies from royalties on the leases
oollected in the years 190G, 1910, and 1911,
and some sums received from the aalea of
Iota, lands, and atumpage, from which ex>
penses and taxea were dedooted, but no
deduction was made upon aeoount of the
depletion of the ore in the properties, or
on account of such sales.
The brief for the respondents states thai
these casea present for eouBlderBti<m four
questions, wUi^ are:
"1. Are the respondenta eorporations
organized for proBtt
"8. Were Hie respondents earrying on or
doing busineea during the yean 1909, 1910,
1811T
"3. Were mon^s received bj the respond-
ente during those years in payment for iron
ore, under the eontraets covering their
mineral lands, gross income, or did they
represent, in whole or In part, the con-
version of the investment of the eorpora-
tions from ore into mon^ I
'4. If such moneye were gross Income, are
I respondents entitled to make any de-
duction therefrom on account of Uie d^
pleUon of their capital investment t"
As to the flret queetion, whether these
corporations were organised for proflt, there
can be no diScnl^. They certainly do not
! within the exceptlcmal character of
charitable or eleemosynary oqaaisatioaa
,A_^OOglC
S7 SUPBEMB COUBT EBPORTEB.
Ooi. Tm^'
•zoepted frran th« opention of the «:t. We
need not dwell upon the obvious purpose of
these corporations, organized under the pro-
vlelons of the Minnesota statute roncerning
eompanies organized for profit, to pursue
gain and to profit because of their opera-
Ab to the second question: Wera the re-
■pondente carrying on business, within t^e
meaning of the Corporation Tax AetT This
question was dealt with bj this court in
the first of the Corporation Tai Caaes, Flint
V. stone Tracy Co. 220 U. 8. 107, 6B L. ed.
S89, 31 Sup. Ct. Rep. 342, Ann. Cas. 1912B,
1312. Aa the tax was there held to be as-
esesaed upon the privilege of doing business
Stn ft corporate capacity, it became necessary
to inquire what'it was to do business, and
this court adopted with approval the deQ-
nition. Judicially approved in other Cftaes,
which included within the oomprehensive
term "business" "that which occupies the
time, attention, and labor of men for the
purpose of a livelihood or proBt."
In that case a number of realty and min-
ing companies were dealt with, and the Park
Realty Company, organized to deal in real
estate, and engaged at the time in the
management and leasing of a certain hotel,
wae held to be engaged in business. It
was also held that the Clark Iron Company,
organized under the laws of Minnesota, and
owning and leasing ore lands for the pur-
pOBB of carrying on mining operations, and
receiving a royalty depending upon the
quantity of ore mined, was engaged in
businees.
At the same time, and decided with the
main corporation tax ease, this court held.
In the case of Zonne v. Minneapolis Syndi-
cate, 220 U. S. 187, S5 L. ed. 42S, 31 Sup.
Ct. Rep. 361, that a corporation whidi
owned a piece of real estate which had been
leased tor one hundred and thirty years, at
an annual rental of (61,000, and which had
amended its articlea of Incorporation bo aa
to limit its purposes to holding the title to
the property mentioned, and, (or the con-
venience of its stockholders, to receiving and
distributing from time to time the rentals
that accrued under the lease and the pro-
ceeds of any disposition of the land, was
not engaged in doin^ business within the
meaning of tbe act, by reason of the fact
tbut the corporation had practically gone
out cl business and bad disqualified Itself
from any activity in respect thereto.
The act next came before this court In the
case of McCoach v. Minebill & S. H. R. Co.
228 U. S. 29G. 67 L. ed. 842, 33 Sup. Cc.
Rep. 41S, In which it was held, distinguish-
ing the case of the Park Realty Company,
•npn, KOd applying the ease of Zonne t.
Hluneapollt Syndicate, supra, to tho facts
before the court, that a eorporatloa wM«b
had leaaed all its property to another, anl
was doing only what waa necessary to ra-«
ceive and distribute the income therelromg
■among stockholders, was not doing busineM*
within the meaning of the act.
In United SUtes v. Emery, B. T. Realty
Co. 237 U. S. 28, 59 L. ed. 825, 36 Sup.
Ct, Rep. 499, this court held that a corporb-
tion which merely kept up its organization,
distributing rent received from a single
lessee, was not doing business within the
meaning of the act.
It is evident, from what this court baa
said In dealing with the former casea, that
tbe decision In each instance must depend
upon the particular facts befora the court
The fair teat to be derived from a considera-
tion of all of them Is between a corpora-
tion which has reduced its activities to th*
owning and holding of property and the
distribution of ita avails, and doing only
the acts necessary t« continue that status,
and one iriiich is still active and is majn-
taining its organisation for the purpose of
cimtinued efforts in the pursuit of profit anA
gain, and such activities aa are eaaential to
those pnrposee.
From ^e facta dearly eatabllshed In thess
eases, we think these corporations were io-
ing business, within the meaning of tbe act.
Thc7 wars organiied for the purposes stated,
and their activitiea Included simiething mora
than the mere holding of property and the
distribution of the receipts thereof. As was
found by the district court, the eridenoa
shows that these three companies sold,
during each of the years named, qnanU-
ties of real estate, and the same wars
not smalL Tixty mAi stimipagB from
aome of tho properties which had been
burned over, leased certain properttea
in the village of Bibbing, and granted
teases to squatters. One of the companies
made explorations and incurred expenses
in the matter of test pits. They onployed
another company to aes that the mining
operatioua were properly carried <m, and
that the lessees lived up to the engage-
menta of their contracts. "All these thinga
indicate," said the learned district Judge,
"the doing of and engaging in busi-S
ness. It [the corporation] was doing'theP
business of handling a large property, sell-
ing lota, and seeing that the leasees lived
up to their contracts. If that is not en-
gaging in businefls, I do not know what is.'
We agree that it certainly waa doing busi-
ness, and, as the Corporation Tax Act t«-
quires no particular amount of business in
order to bring a company within ita terms,
we tiiink these aetlvities brought the oorpo-
ratioDS in question within that line of de-
elslms in this court which have held mtk
A^^OOglC
I91C
VOH BAUMBACH t. BARGENT LAND OO.
corporatioDB were doing biulneBi in « carpo-
nte Mp*«itj within Uie meuiing of the law.
Next, ii it true, le contended by the
goTemment, that the paj^nent* for ore
mined, under the ocntraete covering the
mineral landi, are income, within the n
ing of the act; or do they represent the
eonvereion of the inveetment of the corp»-
ratfong from ore into monejt
The nattire of these mining leases has
been the snhject of some difference of opin-
ion in the cDurte. The eircnit court of ap-
pe&Ie in this case took the view annonnced
in some of the earlier casee, notablj
PennBflvania, that the leaaea were such In
name only, and were In fact conreyances of
the ore in place as part of the really, and
that the BO- called royaltleB merely repre-
aented p&ymente for so much of the land,
and were in no juet sense income, but mere
eoDTersions of 1Jie capital.
TheBe lands are eituated In Uinneaot*,
mxlA this character of lease has long beeu
familiar In that state, u a means of se-
enring the development and operation of
■Dining properties. Some years before the
passage of the Corporation Tax Act, the
preme court of Minnesota had de*lt vrith
the diaracter of such Instruments, In the
ease of State v. Evans, 99 Minn. 820, 108
N. W. 9GS, 9 Aim. Caa. 020, that court, after
a review of the English and American eases,
nid (page S2T) :
"He propriEty of a lease for the purpose
of developing and working mines ii recog-
nlEed by all of the eases, and the rule
eatabltehed by the great weight of authority
g that such leases do not constitute a sale of
• any part of the land* and, further, that iron
or other materials derived from the usual
operation of open mines or quarries consti-
tnte the rents and profits of the land, and
belong to the tenant for life or years, and
to the mortgagor after sale (hi foreclosure,
and before the expiration of the time for re-
demption. The rule, however, has no appli-
cation to unopened mines, in the absence
of a contract, express or implied, for open-
ing and leasing them."
The same doctrine was h^ld In Boeing v.
Owsley, 122 Minn. ISO, 142 N. W. 129. and
in the late case of Btate v. Royal Mineral
Asso. 132 Minn. 232, 150 N. W. 128, in
which the decirion of the circuit court of
appeals in this case, that such leases were
merely conveyances of the ore in place, was
brought to the attention of the court, and
that conclUBlon expressly denied, the su-
preme court of Minnesota saying:
"^e adhere to the doctrine of the Evans
and Boeing Cases, and hold these Instrn-
menta leases. It follows logically that the
amounts stipulated to be paid by the lessees
are renta, and they were expreasly held by
this eonrt to be rents in the Bo«dng Caae,
supra, — a case whleh involved a oonstxoa-
tion of the veiy leases now before the oonrl.
They are 'the compensation which the oc-
cupier pays the landlord tor that speeies of
occupation which the contract between them
allows.' Lord Dennison, in Reg. v. West*
brook, 10 Q. B. ITS, 206, S New Sees. Caa.
G99, le L. J. Mag. Cas. N. 9. 87, 11 Jnr.
515, 22 Eng. Bnl. Cas. 023."
These conclusions of the supreme court
of Minnesota are not only made eoneeming
contracts in that state, such oa ore here in-
volved, but are aopported by many au-^^
thoriticB.l Ordinarily, and as between jj
private parties, thera'ls no question of the*
duty of the Federal court to follow thcM
decisions of the Minnesota snprome court, ai
a rule of real property long eatablished by
state decisions. Knhn v. Furmont Coal
Co. 21G U. S. 340, seo, 04 L ed. 228, 23i, 30
Sup. Ct. Hep. 140. Whether, in consider-
ing this Federal statute, we should be coa-
strained to follow the established law ot the
state, as is contended by the goTemment, we
do not need to determine. The decisive
question is this case is whether the pay-
ments made as so-colled royoltlea amount to
income so as to bring snob payraenta within
the scope of the Corporation Tax Act of
190Q. The prior decisions of this court In
Stratton's Independence v. Howbert, 231 U.
E. 399, 68 L. ed. 286, 34 Sup. Ct. Rep. ISfl,
and Stanton v. Baltic Hln. Co. 240 U. 8.
103, eo L. ed. 640, SS Sup. Ct. Rep. 278, in
which the Stratton Caae was followed and
approved, are decisive of this question. In
the Stratton Case, certain questions were
certifled to this court from the circuit court
of appeals tor the eighth circuit. The oaM
was tried upon an agreed statement ot
farts, from which it appeared, "aa to the
year 1909, that the company extracted from
its lands during the year certain ores bear-
ing gold and other precious metals, which
were sold by it for sums largely In excess of
Raynolds v. Hanna, OS Fed. 783, SOO,
; Tennessee Oil, Gas ft Mineral Co. t.
Brown, 06 C. C. A. fi24, 131 Fed. 09«, TOO
(opinion by Lurton, J.) j Browning v. Boa-
well, 132 C. C. A. 108, 210 Fed. 820, 834;
Backer v. Fenn Lubricating Co. 89 C. C A.
419, 102 Fed. 627; Young v. Ellis, 91 Va.
297, 21 S. E. 480; Gartside v. Outley, SB
III. 210, 11 Am. Rep. 59, 10 Mor. Min. Rep.
606; Genet v. Delaware ft H. Canal Co. 13S
N. Y. Q02, 19 L.RJ. 127, 32 N. E. 1078;
Lacey v. Newcomb, 90 Iowa, 287, 63 N. W.
704; Austin v. Huntsville Coal ft Min. Co.
72 Mo. 636, 37 Am. Rep. 446, 9 Mor. Min.
Rep. 116; Brown v. Fowler, 66 Ohio St. 007,
621, 93 N. E. 76i Reg. v. Westbrook. 10
Q. B. 178, 206, 2 New Sess. Cos. 699, 10
L. J. Mag. Cas. N. S. 87, 11 Jur. OlS, 22
Eng. Rnl. Cos. 028.
.A^^OOglC
37 SU^BEHE COUBT BBPOSTEB.
Ooi. Tmi,
till ooat of mining, axtracting, uid mmrket-
btg the Bunej that the groH miIm unonnted
to $2S4,e8S.aG, the cort of extracting,
mining, and mAiketing uaoimted to (IM,-
S3S.42, uid the raJue of lald ore* to ex-
tracted in the yeax IB09, when in place In
Mid mine and before extraction thereof,
iraa 193,743.43.' With reepect to the op«rB^
tiona of the companj for tiie year ISIO, the
agreed facta were praetlcaily the saniB, ex-
cept aa to dates and amounts. It does not
appear that the so-called 'value of tha ore
in place,' or any other sum, iraa actually
charged off upon the books of the ccnnpanj
as depreciation." The clrcutt court of
appeals certifled three questions to this
oourt: "L Does | 38 ol Oa act of Con-
gress, entitled, 'An Aot to Frovide ReTenue,
Purposes,' *approTed August E, ISOS (36
Stat, at L. p. 11, chap. S), apply to mining
corporations! II. Are the proceeds of ores
mined by a corporation from its own
pronises income within the meaning of the
aforementioned act of CongreasI III. II
the proceeds from ore tales aie to be treat-
ed as income, ts sneh a corporation entitled
to deduct the value of sudi ore in place and
hafors it is mined as depreciatfon within
the momlng of I 38 of said act of Con-
gress f ^la oourt answered the first and
second questions certified in Mie afflrmatlve,
and tha third question in the negative. In
that case, as here, it was contended that the
proceeds of tha mining operations resulting
fr<Hn a conversion of tha capital cepresented
by real estate into capital represented
cash are In no true sense income. As to this
oont«ition, this court said:
"The peculiar character of mining prop-
erty is sufflolently obvious. Prior to de-
velopment it may preaemt to the naked eye
a mere tract ol land with bairsn surface,
and of no practical value Mceept for iriiat
may be found beneath. Then follow exca-
vation, discovery, development, extraction
of eves, Tesulting eventually, if the process
be thorough, in tha complete exhauHtton of
the mineral contents so far as they are
worth removing. Heoretically, and accord-
ing to the argument, the entire value of
the mine, as ultimately developed, existed
from the beginning. Practically, however,
and from the commercial standpoint, the
value — tiiat Is, the exchangeable or market
valu»— depends upon difi^eroit considera-
tions. B^(!nnlng from little, when the
existence, character, and extent of the ore
deposits are prcAjlematical, it may increase
steadily or rapidly so long as discovery and
development outrun depletion, and tbe wip-
ing out of the value by the practical ex-
hauatlMi of the mine may ba deferred for »
long term of years. WbOe not Ignoring the
Importanca of such considerations, wad*
not think Haj afford the sole teat lor d»H
termining the legislative intent." S
* This court held that it was not correct to*
•ay that a mining corporation was not en-
gaged in buainesB, hut was merely occupied
in converting Its capital assets from one
form to another, and that while a sale out-
right of a mining proper^ might be fairly
described as a conversion of the capital from
land into money, the process of miuing is,
in a sense, equivalent to a manufacturing
process, and however the operation shall be
described, the transaction Is indubitably
"business" within the meaning oi the Aot
of 1909, and the gains derived from it are
properly the income from business, derived
from capital, from labor, or from both com>
bined. Furllier,
"as to the alleged inequality of iqieration be-
tween mining corporations and others, it is
of oourse true that the revenues derived
from the working of mines rMult to soma
extent in the exhaustion of the capital. But
the same Is true of the eaminga of the hu-
man brain and hand when unaided by
capita], yet such earnings ara commonly
dealt with in legislation as Income. Bo It
may ba said of many manufacturing corpo-
rations that are clearly lubject to the Act
of 190S, especially of those that have to do
with the production of patented articles; al-
though it may be foretold from tha begin-
ning that the manufacture will be profitabia
only for a limited time, at the end of whid
the capital value of the plant must be sub-
ject to material depletion, the annual gains
of such oorporations ara certainly to ba
taken as Income for the purpose of measur-
ing the amount of the tax."
It is contended that this oaae is in-
applicable, because the facta disclose that
the ores were being mined by a corporation
upon its own premlsei. In our view, this
makes no difference in the application of
the principles upon which the case was de-
cided. We think that tha payments made
by the lessees to the corporations now ba-
fore the court were not In inhBtance the pro-
ceeds of an outright sale of a mining prop-N
erty, but, in view ot tbe* terms of thesar
instruments, were in fact rents or royalties
to be paid upon entering into the premises
and discovering, developing, and removing
the mineral resources thereof, and as such
must he held now, as than, to oome fairly
within the term "Inoome" as Intended to be
resided and taxed under the terms of ths
Corporation Tax Act.
In Stanton v. Baltle Min. Co. E40 U. 8.
103, 00 L. ed. S46, 36 Sup. Ct. Rep. 278, tha
Income Tax Law of 1913 [38 Btat. at L. IM,
chap. 10, Comp. Stat. UlS, | 8319] wms bs-
A^iOOglC
ISIB.
f BAimBACa V. SABGEHT LABD 00.
107
fore tiie court, and It wu cxmtandad ttiat
the dkiue In thst act, limiting the minei
to ft mftzimum depr«eiAtlon ftllowanee of G
per eoit of their ftonuftl gioH receipt* or
output of ore deposit*, iraa iinccnetitution-
al; or. It thkt pTOTision wb« InBep&rkble
from the rest of tiie ftot, the entire Income
Tax Iaw, Be applied t* mining eompuiiei,
w«a unconatltntlonal. Replying to the
^pment adTknced I7 the mining oompany
in that cue, thU court eaid that it reated
upon tlie wholly fallacloiu aaanmptlon that,
locked at from the point of view of lub-
■tance, a tax on the prodnet of a mine was
neeeaaarily a tax upon the property because
of Its ownerihip unless adequate alloiranee
be made for the exhaustion of the ore body
resulting from the working of the mine;
and, further;
"We say wholly falUdous assumption be-
cause independently of the elTeot o( the
operation of the 16th Amendment, It was
•ettled in Stratton's Independence t. How-
bert, 231 U. 8. 399, 58 L. ed. 236. 34 Sup.
Ct. Bep. 138, that such a tax Is not a tax
upon property as such because of Its own-
ership, but a true excise levied on the ra-
■nits of the business of carrying on mining
operations."
We think It resalts Irom tho principles
■nnonncod In these decisions that In such
OMca as aro now under consideration, the
corporation being within the meaning of the
act organised for profit and doing hualness,
ft Is subject to the tax upon Its Incmue de-
riTcd from the royalties undar these leases.
a This brings ns to the fourth and last
— question In the case, as to irtiether allow-
^anee should be made forVepreeiation <hi ao-
oount ol the depletion of the property by
removing the orta from the mines In qnes-
tira.
Hie ecntaitlon of respondents in tiiis be-
half Is, that If tho oonrt shall find that the
luoneya reedvad by them under their mining
Bontraets can be deemed gross inocme. In
whole or in part, they are entitled to deduot
therefrom, as a reasonable allowauee for do-
preclatlon, Uie full amount of the moue; so
reeeiTed, for the reason that they represent
a mare tranamntation of capital assets,
being. In I^al effect, the selling price of
their rights In the mineral deposits ou or
before January 1, 1909, and which, by virtue
of the mining contracts then outstanding,
bad been pmrlonsly sold for ths exact
amounts of such receipts.
The statemnt <rf facta In the ease of
Stratton's Independence, supra, as the court
■tatea on pagea 418 and 41B, developed from
the eartlAcate, was;
"Prom that oertlfleata It appears that the
caae was snlnnitted to the trial court and a
vardfat directed npca an agreed statement
of facts, and In that statement tho groM
proceeds ot the sale of the ores during
the year were diminished by the moneya
expended in extracting, mining, and mar-
keting the oie^ and the precise differ-
ence was taken to be the value ^ the
ores when In place In the mine. . . .
■7t la dear that a definitlan ol the "ralno
of the ore In place* has been Intentionally
adopted that eEclndes all allowances of prof-
It upon tlie process of mining, and attributes
the entire profit upon the mining operations
to the mine itself. In diort, Ute pMtka
propose to estimate the depredation d a
mining property attribntaMe to the extras
tion of orea according to prindplea that
would be applicable If the ore* had been ro-
moTod by a trespasser."
It is true that In the ease of Strattcn'a
Independence, aupra, the dedsion upon tha
question of depredation waa predicated up-
on the facts stated In the esrtltleate preaenb-
ed to the court, and It was said, at pago^
42S; S
*"It would, therefore, be Impr^Mr for na>
at thia time to enter into tho question
whether the clause^ 'a reasonable allowanoe
for depreciation of pT<q»erty, if any,' ealla
for an aUowanee on that account in r—Jr^ng
up the tax, where no depredation Is charged
1b practical bookkeeping; or the question
whether depreciation, when allowable, may
properly be baaed upon the depletlmi of tba
ore supply estimated othsrwise than In tha
mode shown by the agreed statement of
fads herein; for t« do this wonU be t»
attribute a different meaning to the term
'value of the or* In place* than the parties
hava put upon it, and to fautmet tlw dnult
court of appeals respecting a qneatlon abont
which fautmetion has not been raqnwted
and concerning which It doea not vveo m^
pear that any issue Is depending before that
It Uierefore follows that we have fk»
qnestltm of depredation In thla caae pr^
sented nndtf somewhat didtennt drcnu-
stances than were outlined in the opIoloB
la the case of Stratton's Indapendaioe.
The statuta permits deduotlon of "all
losses sustained within the year ... In-
cluding a reasonable allowance for depre-
dation of property." What waa here meant
ty "depredation of property?" We think
Congress used the expreedon in Its ordinary
and usual sense as nnderetood by businesa
men. It Is common knowledge that bnslneaa
concerns usually keep a depredation a»
count. In whldi la charged off the annual
losses for wear and tear, and obsolescence of
structures, machinery, and personalty In use
in the buslneas. We do not think Congress
intended to eovo- the necessary depreciation
of a mine by axbanstlon of th« orea In da-
A^^OOglC
27 SUPEEMB COUET KEPOBTEB,
OOT. Tan,
terminlDg tlie tacomd to be aiawed under
tlie itatute bj including luoh exhauBtion
-within the kllowauce made for depreciation.
It would bs B BtTKined um of the term "de-
pTMlatiou" to n-j tb>t, where ore is taken
^ from a mine in the operation of the prop-
R vrtj, depreciation, aa generally underitood
■ in^u^nesB circles, follows. True, the value
ta the mine b lesaened from the partial ex-
hauBtion of the proper^, and, owing to ita
peculiar character, cannot be replaced. But
in no accurate aenea can auch exhaustion of
the body of the ore be deemed depreciation.
It la equally true that there leems to be a
hardship in taxing lueh recelpta ae income,
without some deduction arising from the
fact that the mining property ia being con-
tinually reduced by the removal of the min-
arals. But such eonsideration will not
Jutify this court In attributing to depreei-
aUon a aense whldh we do not believe Con-
grus intended to give to It in the Act of
IMI9.
It may be admitted that a fair argument
arises from equitable eonsideratione that,
owing to th* nature of mining property, an
allowance in aaseaeing taxes upon income
shonld be made for the removal of the ore
deposits from time to time. Congreaa rec-
cgniied this fact in passing the Income tax
Motion of the Tariff Act of 1613 (S II- 39
Stat, at L. 106, leT, chap. 16, Comp. Stat.
1»13, II 6319-6328), when It permitted
"a Teaaonable allowance for the exhaustion,
wear and tear of property arising out of
Its use or employment in the business, not
to exceed. In the case of mines, 6 per eentum
of the groBB ralne at the mine of the output
for the year tor which the computation is
and in the Ineoms Tax Law of September B,
1916 (ieiS-1916 StaL 756, TS9), a reason-
able allowanoe is made in the casea of minea
for depletion thereof, "not to exceed the
marlcet value In the mine of the product
thereof wiiich hsa been mined and sold dur-
ing the year for nhieh the return and com-
putation are mode." Hese provisions were
not in the Act of 1906, and, as we have said,
we think that Congress, in that act, uaed the
term "depreciation" in ita ordinary and
usual aignlllcanee. We therefore reach the
conclusion that no allowance can be made
of the character contended for aa an item
of depreciation.
^ No contention is mode In the brief for an
g allowance because of sales of stumpage, lots,
* and lands belonging to*the companies, aa an
exhaustion of the capital assets, and evi-
dently the case was brought for the purpose
of testing the right of the companies to de-
duct the royalties agreed to be paid to th<V)
upon the removal of the minerals from the
lands from the sums for which they wen
•cverally assessed.
For ths reasons stated, we think the Cir-
cuit Court of Appeals and the District
Court erred in the judgments rendered, and
the same will be reversed and the cases re-
manded to, the District Court for further
proceedings, if any are sought, np«i claim
of right to deduct the value of the lands,
lots, and stiunpage sold from the aaseaa-
meuts made.
Judgments reverted.
tZ42 U. 8. «8)
WILLIAM H. BERHY, Jidin E. Howe, and
Davis C. Mott, Constituting tiia Board of
Parol of Iowa, «t al., Appts.,
RUDOLPH DAVIS.
Appeal and Bbbob ^llOT — Uoot
Cabe— PaopEB JvoauKitT — BiVEBsma
FOB DiSHiBBAi:. or Biix.
The moot character of the contro*
vere^ presented by a bill to enjoin stat«
officials from performing vasectomy upon
the plaintiS, pursuant to a state statute^
where, since the preliminary injunction ap-
Kled from was granted, the statute has
n repealed and a new act passed which
does not apply to the plaintiff, requires that
the decree Delow be reveraed and the case
remanded with directions that the bill bs
dismiased without costs to either party.
IBd. Not*.— For other ca»s, hw Appvd and
BmiT, Cut. Dtc 11 1S»-UM: Dec. Dis. «=>
INo. 47.]
Submitted October 26. 1916. Decided Janu-
ary 16, 1817.
APPEAL from tbt District Court of the
United SUtu for the Bouthem District
of Iowa to review a decree enjoining stat*
officials from perferming vaaectomy pur-
suant to the provisions of a state statuta,
Reversed, with directions to dismisa the bill
without coste to either party.
Bee same cose below, E16 Fed. 413.
The facts are stated in the opinion.
Ur. George Cosson, Attorney General of
Iowa, and Mr. Boss R. Mowry for appel-
No appearance for appelleei a
* Mr. Justice Holmes delivered tha opln-*'
ion of the court i
This ia a bill to enjoin the State Board
of Parol and the warden and physician of
the atate penitentiary at Fort Uadison
from performing vasectomy upon the plain-
tiff, the defendant in error, in purauanc*
of on Iowa statute approved April IS, 191S.
30 a. A. chap. 187, % 1. Bup^ement to
i« topic * KET-NOMBER In aU K«r-Numbsred Dlssats & Ii
V?fr>gic
ISlfl.
BEART T. DATI8.
SW
Cods 191S, ohap. Ift-B, g 2000-p. Tbii vA,
Mnon^ other thing!, directed the operatloii
to be performed upon oonvlcta in the peni-
teutiSiry who hid been twice conricted of
Moaj, and on Fsbmuj 14, 1914, the board
had ordered It, upon tba ground that the
plaintiff had been twlM ma coavitA^. The
biU was filed on March 11, 1SI4. On April
U, 1914, following an opinion of the Attor-
aej General that both felonies rouit hare
been committed after the paaaage of the
act, the order «U laid on the table, and
the warden and phyilcian made ai&davlts,
Q filed on April 22, that Uie operation would
^not be performed by them. Nererthelaee,
■ ttiree jndgee, ditr^^'dlnf the 'foregoing
opinion and action, proceeded to iiaue a
preliminarj inJimeUcm ■• prayed in the
bill. 210 Fed. 413.
An appeal waa talcoi to thli eonrt to
M14. In ISIS the Act of lOlS was re-
pealtA, and Uta anbetitntad aot doaa not
•pplf to the plaintUr. Bnpplwiigntal S^
S7 B. a-^4.
plement to the Code of Iowa, 1916, chap.
IS-B, I CeOO-el. All poMibility or threat
of the operation hae diiappeared now. If
not before, by the act of the itate. There-
fore, upon the precedent! we are not called
upon to consider the propriety of the ao-
tion of the district court, but the proper
course ie to rereiBe the decree and remand
the cause, with directions that the bill be
diamisaed without eosta to either party.
United States r. HambnTg-Amerlksniache
PacketfahTi-Actien Oeiellschaft, 239 U. 8.
4M, 470, 478, 60 L. ed. 3S7, 391, 392, 38
Sup. Ct. Bep. 212; JwMa t. Montague, 194
U. B. 147, 1S3, 4B L. ed. 91S, 915, 24 Sup.
Ct Bap. 611; Dinamoie t. Southern Exp.
Co. IBS V. S. lis, 120, 46 L. ed. Ill, 113,
22 Bnp. Ct Bep. 45; Mills v. Qrean, I&9
n. 8. 651, 668, 40 L. ed. eas, 295, 16 Sup.
Ct Bep. 132.
Deorae rereraad. BID to ba illiiiiliirJ
witlunit ecwta to 4tlur f*rtj.
>v Google
■jGoogle
jroLLOWUTG AKE MEMORANDA
OASES DISPOSES Ot AT OGTOBEB TBSH, 1916,
Mumi HAKacm, PUlstlff In Enor, t.
OMKiX NOBIHXBIT RUI.WAT COKFAITT.
tSo. M.]
In Error to tha Sapram* Oourt af tht
St*te of MinnMota.
Uemr>. WUliun E. Sow* and Cbvles
Loring for plaintiff In rtot.
Meuro. B, C. Undlej *nd ^ Ii> 'Jhim
for defentUnt in arror.
Deeonbar 4, IQK. Fer Cariam: Jndg-
»Mt AfBnned wltli cotta, upon the anthor-
ft7 of Oilcsgo Junction R. Oo. t. King, Z82
TJ. S. £22, SB L. cd. 178, S2 Bnp. Ct. R«p.
7B; BMiboard Air Une It. Co. t. Pftdgett,
2SS n. B. MS, 078, » L. ed. 7TT, 781, 36
Sup. Ct. Rep. 481; Great Northern R. Co.
T. Enapp, 240 U. 8. 464, flO I* ed. 740, SS
Sup. Ct. R«p. 3W; Bkltimora ft 0. R. Co.
▼. Whitacre. 242 U. S. 169. 61 L. ed. 228, 87
Snp. OL Rep. 33.
Wnxux Buosa, Plaintiff Id Srm, t.
Statb of KursAi. [No. 113.]
In Error to the Svprema Court of tlie
Stata of Eanaaa.
Hr. A. M. Harr^ for plaintiff In error.
Hr. James P. Coleman for defendant fai
, ISIS. Per Cnriam: Dla-
mlsted for want of Jurisdiction npon the
anthorit^ of: (1) Dreyer t. Illinois, 187
V. 8. 71, 83, 84, 47 L. ed. 79, 8G, 23 Sup.
Ct Rep. 28, 10 Am. Crlm. Rep. ZS3-, Prentia
Y. Atlutie Coast Line Co. 211 U. S. 210,
226, S3 L. ed. 160, 168, 20 Sup. Ct. Rep.
07; (2) Baldwin t. Eanias, ISO U. B. 62,
32 L. ed. S4D, 9 Snp. Ct. Rep. 103; Spies t.
minois. 123 U. B. 131, 31 L ed. 80, 8 Sep.
Ct. Rep. 21, 22; Jacob] t. Alabama, 187 U.
S. 139. 47 L. ed. 106, 23 Bup. Ct. Rep. 4S;
(8) Equitable life Assar. 8oe. t. Brown,
187 U. B. 308, 811, 47 L. ed. 190, 162, 23
Snp. Ct Rep. 123; Consolidated Turnp. Co.
▼. Norfolk A 0. V. R. Co. 2£8 D. 8. 696, 000,
Cr L. ed. 982, 983, 33 Snp. Ct Rep. 009;
Manhattan L. Ins. Oo. t. Cohm, 234 U. 8.
128, 137. 68 L. ad. 1246, 1264, 34 Sup. Ct.
Rap. 874; (4) Uoora t. Hlswnri, 169 U.
8. 073, 40 L. ed. 801. 10 Bup. Ct Rap. 179;
McDonald t. Maatachn setts, 180 U. 8. 811,
4S L. ed. 642, 21 Sap. Ct Rep. 389; Graham
T. West Virginia, 224 U. B. 010, SO L. ed.
017, 38 Bup. Ct Emp. 683; Carleri t. New
Tork, 233 U. B. SI, 68 I.. «d. 843, 84 Sap.
Ct Rep. S70.
QnnoH DaoK et aL, Appellanta, r. Gnmn
W. OoBTRiLB et aL [No. 127.]
Appeal from tha United States Clroalt
Court of Appeals for tha Fifth Circuit.
Mr. Boujamin T. Waldo for appellsnta.
Mr. Solicitor Oaneral Daria for appellaea.
Dacember 4, 1016. Per Curiam; Judg-
ment affirmed with eosta upon the author-
ity of McCollnm *. Eager, 8 How. 01, II
L. ed. 179; Thomas t. Wooldrldge, 23 Wall.
288, 23 L. ed. 136; Bnfflngton r. Harray,
OS n. B. 09, 24 L. ed. 381 ; Rof ord T. Bruns-
wick-Balke.Colletider Co. 228 U. B. 339, 340,
67 L. ed. 804, 867, S3 Sup. Ct Rep. 616.
CsiOAso, MiLWAVKn, ft St. Paul Rah,-
VAT CoxpAXT, Plaintiff In Error, t. John
M. BoKJH. [Ho. 474.]
In Error to tha Supreme Oonrt of tke
State of WaAlngton.
Mr. Henian H. Field for plaintiff in error.
Mr. Merritt J. Qordon for defendant In
December 4, 1918. Per Curiam: Dia-
missed for want of Jurisdiction npon the
authority of Haseltlne t. Central Nat. Bank,
183 U. B. 130, 40 L. ed. 117, 22 Bup. Ct Rep.
49; Schlosser t. Hemphill, 198 U. S. 173,
49 L. ed. 1000, 26 Bup. Ct. Rep. 064; Looist-
ana NaT. Co. r. OyateT Commission, 280 U.
B. 99, 07 L. ed. 138, 38 Bup. Ct Rep. 78;
Thompwn t. Bt. LouU, 241 U. S. 037, M L.
ed. I21S, 30 Sup. Ct Rq>. 4M.
Ul
A^iOOglC
£18
ST SmVBaCE OOUBT BEPORTBR.
Oct. ■
PAm. ScBARBEKBEBQ, Petitioner, v. DoiXAX
Steamship Coupant et b1. [No. G24,]
Petition for k Writ of Certiorari t« the
United States Circuit Court of Appeali for
the Ninth Qrcuit.
MetBn. J. H. Ealiton ajid WUIIam E.
KichRrdton for petitioner.
No appearance for re^randentti
December 4, 1916. Granted.
JoBOB Dabd r TfTTT.iim «t a1., Heln at Law
of Engenia TelUard, Deceased, et al., Ap-
pellasta, T. EnUQm GiEnr et al. [No.
182.]
Appeal from the District Court of tbt
United Statei for Porto Rico.
Hr. Francis H. Dexter for appellants.
"Mr. Edward B. Paine for appelleea.
December 4, 191S. Diemtssed with coati^
OD motion of eonnsd for the appellanta.
Georqe W. Cauiwzll et a]., Fetltionera, t.
KoRTHWESTEBN Tebra Cotta Coupant.
[No. 768.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Eighth Circuit.
Messrs. J. H. Balston and W. E. Hicbard-
son for petitioner*.
Mr. Edgar H. Scott for reapondent.
December 4, 1018. Denied.
Victob-Amfbicas Fith. Compawt, Petition-
er, T. Paul ToULJAnovicH, per pro. ami.
[No. 761.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the First Circuit.
Mr. Caldwell Geaman for petitioner.
Mr. George 8. Klock for respondent
December 4, 1916. Denied.
Taitdalia RAItBOAS GoitPAlfT, Plaintiff In
Error, t. John A. Hou-and. [No. 209.]
In Error to the Bupreme Court of the
State of Indiana.
Me"Brs. f^amuel 0. Pickens and Frederic
D. McKenney for plaintiff in error.
Messra Ittnrtin M. Hugg and Wymond J.
Beckett tor defendant in error.
December 4, 1910. nieiniaBed with costs,
on motion ot counsel for plaintiff in error.
New Yobk Bleotuo Linxb CouPAirr, Petl<
tioner, r. Wiluaic J. Gatkob et al..
Board of Estimate and Apportionment
ot the City of New York, et al. [No. — ,
OHginal.]
On Application for a Writ of Error to
the Supreme Court of the State of New
York for the Countj of New York.
Mr. Alexander B. Bacon for petitioner.
Meura. Edmund L. Mooney, Charlei T.
Kuuell, Frederick A. Card, Lamar Bardj,
and Samuel J. Boaensohn for respondent.
December 11, 1616. Per Curiam: Tha
writ of error prayed for is denied upon Uia
authority of: (1) EusUs T. Bollea, ISO V.
B. 361, 37 L. ed. 1111, 14 Sup. Ct. Eep. 131)
Leathe v. Thomas, 207 U. 8. 63, 62 L. ed.
118, es Sup. Ct. Bep. 30; Holden L^nd ft
Live Stock Co. v. Interstate Trading Co.
233 U. S. fi36, S41, 58 L. ed. 10S3, 1080,
34 Sup. Ct. Pep. 661; Mellon Co. v. Me-
Calfert;, 239 U. S. 134, 60 L. ed. 181, 36
Sup. Ct, Bep. 94; (2) Yazoo t M. Valley
B. Co. T. Adams, 180 U. B. 86, 4S L. ed.
403, 21 Sup. Ct. B^. 2B2; Deals t. Cone,
IBS U. S. 1S4, 47 L. ed, 43G, 23 Sup. Ct.
Bep. 276; Wood t. Cbesborough, S2S U. 8.
672, G7 L. ed. 1018, S3 Sup. Ct. Bep. 706;
(3) Equitable Life Assur. Soc. t. Brown,
187 n. S. 308, 314, 47 L. ed. 190, 193. 23
Sup. Ct. Bep. 123; Conaolidated Turnp. Co.
T. Norfolk k O. V. B. Co. 229 U. S. 566,
600, 57 L. ed. SS2, S83, 33 Sup. Ot Rep.
600; Easterling Lumber Co. v. Pierce, 235
U. 8. 380, 382, 59 L. ed. 279, 281, 36 Sup.
Ct. Bep. 133. See New York Electric Line*
Co. T. Empire City Subway Co. 235 U. 8.
179, 69 L. ed. 184, L.R.A.— , — . 35 Sup. Ct
Rep. 72, Ann. Cas. leiSA, 72.
Fred E. BABner, Plaintiff In Error, t.
Chablbs M. Wat, as Receiver, etc [No.
174.]
In Error to the Supreme Court of Uia
State of Minnesota.
Mr. H. V. Mercer for plaintiff in error.
Mr. James E. Trask for defaidant In er-
ror.
Deeember 4, 1016. Diamlsatd per ittpula-
EioRnEiT PAOEAflEs or Dental Ihstkq-
MKHT8, etc., Appellant and Plaintiff la
Error, v. UwrrTO States. [No. 086.]
Appeal from and In Error to the United
States Circuit Court of Appeals for tha
Third Circuit.
Mr. John A. Kratx for sftpellaot and
plaintiff In error.
,A_^OOglC
U18.
imHOSAKDA GASES.
£18
Ur. Solicitor Gennftl Davli for a^peliM
•sd defendant In error.
December 11, ISie. Per Curluni Dis-
mlsMd for want of jurladioUon upon the
ftuthorit? of the United SUtea T. Knll,
174 U. 8. 38f, 391, 43 L. ed. 1017. 1019, 10
Sup. Ct. Rep. 712; MufuUnd t. Brown,
187 U. 8. 239, 47 L. ed. ISO, 23 Sup. Ct.
Bep. 106) United Stttea t. Be^Uj, 232 U.
a 483, 4BS, fig L. ed. eSO, 387. 94 Sup. Ct.
Bep. 392.
JoHR T. Beicboft, Plftintlff In Error, t.
Gbbat Nobthebit Bailwat Ofotrtm.
[No. eee.]
In Error to the District Court of Ljon
Conn^, StJLt* of Minneaota.
Hr. Tom DariH for plaintiff In error.
Mr. M. L. Conntrjrnua for defendant In
error.
December 11, 1910. Per Carlam: Judg-
ment affinned with coeta on the authorftj
of Chicago Junction R. Co. v. King, 222 U.
8. 222, 60 L. ed. 173, 82 Bup. Ct Rep. 79;
Seaboard Mr Line B. Co. v. Padgett, 28S
U. S. Bee, B73, G9 L. ed. 777, 7B1, S8 Sup.
Ct. Bep. 4B1; Great Northern R. Co. y.
Enapp, 240 U. S. 484, 80 Z* ed. 74B, 30 Sup.
Ct. Rep. 390; Baltimore A O. R. Co. t.
Wbitecre, 242 V. S. 16B, SI L. ed. 228, 87
Sup. Ct Rep. C3.
6. A. Hats, Collector, ete.. Petitioner, t,
Gadut Moudtaif Coai. ComAsr. iSa.
790.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Aj^eaU for
the Fourth Cirimlt
Hr. Solicitor General Davie for petitioner.
No connael appeared for respondent,
DMcmber 11, 1910. Granted.
H. H. Bxiim, BeceiTer, ete.. Petitioner, t.
BrrcKxn Whis. Coxpaitt tt aL [No,
607.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Siith Circuit.
Mesire. Harry L. Gordon and John D,
ElliB for petitioner.
Meiirs. Province If. Pogoe and Joaspb
W. O'Eara for respondents.
December 11, 1618. Denied.
Katioital Bark of CoimEBoc ow Bociras-
TB T. WiLBuB B. OsAADiaoH, Tmstea,
ate. [No. 809.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Aj^eals for
the Seeond Circuit
Heears. Eugene Van Voorhli and Jmbm
U. B. O'Qradf for petitioner.
Mr. Iliomas C. Burke for reapmident.
" • r 11, 1018. Denied.
Q. Bbooic et al., FeUttenera, v. J. B. Chaf-
XAs et aL [No. 763.]
Petition for a Writ of Certiorari to the
United Statea Circuit Court of Appeals for
tiie Fifth Circuit
Mr. William D, Gordon for petitioners.
Meiara. J. W. Terry, H. U. Garwood,
Alex. BrittoB, and Bvana Browne lor r«-
spondenta.
December 11, ISIS. Denied.
UnmD Statib, Plaintiff In Error, t. Wik
LiAM Ssimrax et al. [No. 140.]
In Error to the District Court of tb«
United States for the Southern District of
New York.
The Attorney General for plaintiff in er-
No counsel appeared for defendants la
December 11, 1910. DismlBaed on motion
of counsel for tlie plaintiff in oror.
United States, Plaintiff in Error, t. Joidt
L. BtLLABD. [No. 181.]
In Error to the District Court of the
United States for the Southern District of
New York.
The Attorney General (or plaintiff In er-
No counsel appeared for defendant in er>
December 11, 1910. DIsmlBied on motion
of oounsel for the plaintiff In error.
Anuous Paoxhio Goupakt et mi., Plaintlffi
in Error, T. State of Miaaousi, oir mi
Relation or Jobk T. Baexib, Attorney
OeneraL [No. 14].]
In Error to the Supreme Court of the
State of Hlsoouri.
Mr. Frank Hagerman for plaintiffs In er*
Ur. John T, Barker for defendant In er-
December IS, 1018. Dismissed with costs,
on moUon of eonssel for the plaintiffs In er-
MATTDFAiTruBEBa LioHT ft Heat Coupant
et al., Appdlants, t. Ice Ott et al.. Pub-
lic Service Commission of the State of
West Virginia. [No. 114.]
Appeal from the District Court of the
United States for the Northern District of
West Virginia.
MeearB. Charles McCami^ A. Leo Well,
J. H. Clarke, Geo. B. Price, B. U. Ambler,
P. C. Enox, Frederick De a Panst, Charles
F. Wilson, for appellants,
Messrs. 8. B. Avis, A. A. Lilly, and Ik
B. Sommerville for ^pelleea.
December IS, 1910. Dismissed with ooeta,
on motioa of eomisei for the a^reHanta.
,A_.OOglC
su
87 SUPBEUE COURT REFORTEB,
Ooi. Tnif,
Chulm Souwbuil^ Fnu, PUntiff In
Error, t. Pbopu ow thb Statb <» Nsir
ToBK. [No. 120.}
In Error to tiie Conrt of Sptdftl Seadona,
FIni District, Haw York Cit^. Btata of New
York.
Mr. Alfred Z. Omiaen for plaintiff In er-
MesiTB. Bobert 8. Jolmatooe and Leonard
J. Obermeior for defendant in error.
December 18, IBIfl. Per Curiam: Dla-
miised for want of jariidiatlon npon the
authority of Haoaltine t. Central Nat. Bank,
ISa U. S. ISO, 46 I>. ed. 117, EZ Sup. Ct
R(f>. 40; BchloBMr t. Hemphill, 108 T7. 6.
17), 40 L. ed. 1000, 8S Sup. Ct. Hep. SM;
MiMoori * K. I. H. Co. T. Olathe, 222 U.
8. 18S, H L. ed. 1611, 32 Bup. Ct. Bap. 48;
Louisiana Nar. Co. t. Oyster ConuoissioD,
2Zfi U. 8. 09, 67 L. ed. ISB, 38 Snp. Ct Bep.
7B; IhompMB ▼. St Laaim, 241 U. S. 687,
eo L ed. 121S, 86 Snp. Ct B^ 446.
WlOHIU PAUa ft NOBTHWBBTEBH BAItWAT
CcniPAirr, Plaintiff in Error, t. J. H.
Pdokbtt. [Ho. 636.]
In Error to the Supreme Conrt of the
fiUto of Oklahoma.
UewTB. Joeeph U. Bi7ion, Alex. Brittm,
•nd Brani Browne for plaintiff in error.
HeMra. C. B. Stuart, A. 0. Cnte^ U. K.
Oruce, and Wddon If. Ballay for ddandant
Deoember 18, 1916. Per Curiam: Dl»-
mlaaed for want of juriidlcticxi niton the
authority of: (1) Dower t. Rleharda, 1B1
17. 8. ess, 668, SB L. ad. SOS, 300, 14 Snp.
Ct Bep. 462, 17 Uor. Hln. Bep. 704;
"Oterm T. Spratt, IBO U. B. 346, 868, 47 L.
•d. B4S, 840, 21 Sup. Ct Sep. 576; Wntere-
Pierce Oil Co. t. Texaa, 212 U. S. 86, 97,
63 L ed. 417, 424, 2B Sup. Ot Rep. 820;
Kerfoot t. Farmera ft M. Bank, 218 U. S.
281, 288, 64 I., ed. 1042, 1043, 31 Sup. Ct
Bep. 14; <2) Demlng t. Carllale Paoklng
Co. 220 n. S. 102, 106, 67 L. ed. 140, 142,
33 8x>p. Ct Rep. 80; Conaolidated Turnp.
Co. T. Norfolk ft O. V. R. Co. 228 U. 8. 606,
600, 67 L. ed. 082, 083, 33 Sup. Ct. Rep.
600; Bnnia Waterworki v. EudIb, 233 TJ.
B. 662, 668, 68 L. ad. 1139, 1141, 34 Sup.
Ct Rep. 767; Parker t. McLain, 237 U. B.
460, 471. 472, 60 L. ed. 1061, 1063, 1064,
36 Sup. Ct Bep. OSS.
Josh Sohiokdis Luimti CoiCPAifT, Peti-
tioner, V. RUEET Lma^ OOKPAnr,
Limited. [No. 782.]
Petition for a Writ of Certiorari to the
United State* Circuit Court of Appeala for
the BeTenth Clronlt.
Meetrs. Nathan Ferele^ Jr., and Frank
M. Hoyt for petitioner.
No counael appeared for reepondent
Decembw U, 1016. Denied.
Lo Poifa aliaa Lo Bong, Petition tf, V.
Juaa B. DcNir, Jnq«otor, ete. [N»
803.]
Petition for a Writ of CerUorari to the
United BUtea Circuit Court of Appeals for
the Eighth Circuit
Mr. John H. Briokenstein for petitioner.
Mr. Solicitor General Daiia and Mr. Aa-
slatant Attomcr Goieral Wallaoa for t»
■pondant
December 18, 1916. Denied.
W. H. WATLnroTOR, Petlthoer, v. Umttd
Statu. [No. BOO.]
Petition for a Writ of Certiorari to the
United States Circuit Court of App«aU for
the Eighth Circuit
Meaars. S. W. Hayea and Carlo* Bee for
petitioner.
Hr, BoUoltor Oaneral Davla and lb. A^
alatant Attom^ General WallaM for T**
apondent
18, 1016. Denied.
Uehpbis Btukt Railwat OcmrAWi, Peti-
tioner, r. J. W. Bono, Adaitoiatntor, tte.
[No, 622.}
On Writ of Certiorari to tlia United
Statea Circuit Court of Appeals for the
Sixth Circuit
Metara. Luke E. Wright and Boane War-
Ing for petitioDer.
Meesra. Caruthera Swing and Ike W.
Crabtree lor reapondont
December IB, lOlS. Dlamlaaed with eoria
oo motion of eannaal for Uw patltitoat.
>v Google
1818. 8EVILLETA DE LA JOYA QRANT t. BELEN LAND GRANT. tli
(HI V. B. tail Mcaua. S»mnel Herrick, R. F. Baniw^
BOAHD OF TBUSTEE8 O? THE SB- 1 and J. L. Ntoholu for defendant in error.
VILLETA DB LA JOYA GRANT, aU., |
Mr. Jiutlce Tan Devuiter delivered the-
•pinion of tlie court:
Thli is an action In ejectment to tbooto
the area in conflict between two land grant*
New Mexico reapectivelj known «■ tlie
Im, Joya and the Belen, the plaintiff being
the owner of the former and the defendant
of the latter. The defendant prevaUed and
the judgment waa affirmed. SO N. If. 14S,
140 Fac 969.
The facts are thcM! Both granta were
oompleto and perfect at the time of the
Uezloan eeasiofl and both were eubeequmtl^
conflrmed, the Belen in ISGB bj an act of
Ckingiew (chap. S, 11 BUt. at L. 374) and
the I« JofB In 1683 by a decree of the
eourt of private land olainu under the Act
of Mardi S, 1891, ehi^. 639, SB Stat, at L.
864. Hie Belen waa the oldar grant and
waa patented in 1671, long before the pro-
ceeding for the confirmation of the La Jaji,
grant waa b^nn. Shortlj alter the decrM
oMtflrming It waa rendered, the Ia Joya
grant waa anrTeyed preparatorj to iiaaing
patent for it. Objectiona to tbe snrrej
gre made by two persona interested in the
Belen grant, and the nrvoy, with the ob-
jections, waa laid before tiie court of private
land dalma, as was required by the Act ot
1691. The objections were to the effect
that Uia survey errtmeously placed the
northern boundary of the Ia Joya grant
within OiB Belen gnmt, and therat^ wrong-
ly brought the two largely In conflict.
After a hearing the court found the objee-
Uons well grounded, ordered a reaurvi^ of
the Ia Joya grant, and particularly desig-
nated what should be deemed its northern^
boundary. A resurrey conforming to thata
•direction received the oourfs approval, and*
a patent for Ihat grant waa then issued.
While the resurvey greatly reduced the are*
in con&iet, it still left the northern bound-
ary of the La Joya grant within the Belen
grant, and a oonfliet of about 11,000 Mrei
remained.
Without queetioning the superiori^
which otherwise would result from the
seniority of the Belen grant, ths plaintiff
insisted that the action of the court of
private land claims in directing what
should be deemed the northern boundary of
the La Joya grant, and in approving the
reaurvey wherein that direction waa fol-
lowed, amounted to an adjudication of the
true location ot the common boundary be-
tween the grants, and was oonclnslTe op<n
the ownoa of the Belen grant. But the
atate courts held the contention untenable
PcBUc Laitdb «=3220-^oTnti ot Put ate
La5D CI.AIMS— Jcbisdigtiou— BrracT or
OoKOBEssioiiAi. CoMFiBitA'noN— BonaD-
1. jurisdiction to eeitablfsh as a eom-
mon boundary between two Mexican grants,
a line which reduced the area of that one
of such grants which had been conflrmed by
OoDgreEs and patented long before tbe en-
actment of tbe Act of March S, 1S91 (ZS
Stat, at L. BS4, ohap. 639), creating the
court of private land claims, was denied to
that court by the provisions of SS 6> 13, of
that act, that confirmation by that court
ahall not include any land "that shall have
been disposed of by the United States," nor
have "any effect other or further than as a
release of all claim of title by the United
States," and that "no private right of any
person as between himself and outer claim-
ants or persons" ahall be "in any manner
affected thereby," and that ail proceedings
mnd rights shall be conducted and decided
subject to the restrictions that no elaim
shall be allowed for any land, the ris^t to
which has been acted upon and deeided by
Congress, and that no proceedings, decree,
or act shall conclude or affect ue private
rights of persons as between each other, but
shall be conclusive of all rights as between
the United States and all persons claimiDg
any tntes«st or Tight in sutdi lands.
[BO. Not*.— For otter csssa, sm Public I^nfls,
Oovwn ^=23 — PWTATB Labd Ct-Auift—
JUBiBDicnoir— CoBflEMT,
2. Consent on the part of the owners of
m Mexican grant conflrmed by Congress
could confer no jurisdiction upon the eourt
of private land claims, in contravention of
the prohibitions ot the Act ot March 3, 1881
(26 SUt. at L. 8M, chap. 539), 93 8, 1». to
reduce the area of such grant, or to make
any decision respecting its boundaries that
would affect private rights in such grant.
rsa. Nota— For other oas«, see Cottrta. CenL
Dig. H IE. TSK. a: Dm. Dig. «=9n.]
[No. 128.]
Argued December 22, IBIO. Decided Janu-
ary 22, 1817.
IN ERROR to the Supreme Court of the
State ol New Mexico to review a Judg-
ment which affirmed a judgment of the Dis-
trict Court of Socorro County, in that state.
In faww of defendant in an action in ejoct-
inent. Affirmed.
Se« same case below, 20 N. M. I(S, 146
Pac. 968.
The facU are stated In the oplnim.
Mr. Netll B. Field for plaintiff In errw. | i> riew of the provisions of the Act of 1891,
""^^Tm other cases le* isms topic A KBT-tniMBKB In all Ksr-Nnmbend DlgMt* » ^a«^Q q | ^^
Zl<
37 SUPREME COUKT REPORTEB.
Oct. Txrv,
and that ruling !■ the only one called in
question here.
The court of private tend elaime derived
all of its paver* from the Act of ISOl, tho
express purpose of which waa to provide
for and secure the adjudication of Spanish
aod Mexican land claims as between the
claimant* and the United States. The act
divided the claistB into two principal
elasaes. One clasa, puticnlarlj described
in S 6, embraced those which were "not
already complete and perfect," and tbe oth-
er, particularly described in S 8, embraced
those wbicli were "complete and perfect"
at the time of the Mexican cession. The
La Joya grant belonged to tbe latter olaas,
respecting which It wa* apeeially provided
in § 8 that the court's confirmation ehonld
not include any land "^at ahall have been
disposed of bj the United State*," nor have
"any effect other or further than as a re-
lease of all claims of title liy the United
States," and that "no private right of any
person a* between himself and other claim-
ants or persons" should be "in any manner
^ affected thereby." And in g 13 it waa
gerally provided in respect <rf lioth cli
* of claJms that all the* proceedings in the
court should be conducted and decided aub-
ject to certain enumerated Teetrictlon*,
among which were the following: "Fourth.
No claim shall be allowed for any land the
right to which has hitherta been lawfully
acted upon and decided by Congress, or un-
der its authority. Fifth. Vo proceeding,
decree, or act under this act shall eonclude
or affect the private rights of persons as
between each other, all of which rights shall
he reserved and saved to the same effect as
If this act liad not been passed; but the
proceedings, decrees, and acts herein pro-
vided for shall be conclusive of all rights
as between the United States and all per-
sons claiming any interest or right in such
In view of these provislMia It ts rer;
plain that the court of private land elainis
was without any power to revise the action
of Congress in confirming a particular
grant, or to confirm another grant for the
same lands or any port of them, or to deter-
mine tbe rights of private persons, as be-
tween themselves, to such lands. This court
has frequently so held and has pointed out
that a decision by that court sustaining a
elaim for lands, aa to which Congress al-
ready had confirmed another claim, would
not conclude anyone, but would be void, be-
cause In excess of the court's power. United
StAtes V. Conway, 176 U. S. 60, 44 I., ed.
72, 20 Sup. Ct Rep, 13; Alnsa v. New Mex-
ico ft A. R. Co. 178 U. S. 76, 00, 44 Ll ed.
78, 84, 20 Sup. Ct Rep. SB; Las Animas
L*nd Grant Go. r. United SUtea, 170 U. S.
201, 205. 206, 45 L. ed. 153-155, 21 Sup.
Ct. Rep. 02: United States v. Baca, 1S4 U.
8. 653, BSe, 46 L. ed. 733, 735, 22 Sup. Ct.
Rep. 641. In the last case it waa said:
"The manifest intent of Congress appears
to have been that with any land, of the-
right to which Congress, In the exercise of
its lawful dtscretioD, had itself assumni
the decision, the court of ' private land
claims should have nothing to do. Tlie-
whole jurisdiction conferred upon that court
is to confirm or reject claims presented to
it, coming within the act. All the powers
conferred upon it are incident to the exer-
cise of that jurladiction. When it has noa
jurisdiction to confirm or reject, it has'no*
authority to inquire into or pass upon the
case, beyond the decision of the question of
jurisdiction. The peremptory declaration
of Congress, that "no claim shall be allowed
for any land, the right to which has hither-
to been lawfully acted upon and decided by
Congress,' necessarily prohibits the courb
from passing upon the merits of any such
In confirming the La Joya grant and
supervising its survey the court proceeded
in evident contravention of that prohibition,
for it extended tbe confirmation and sur-
vey to about 11,000 acres of lands withia
the Belen grant which had been confinned
by Congress and patented long before th*
Act of 1S91 was passed. In this respect,
therefore, the court overstepped its juris-
diction and its action was void.
As making for a different conclusion th*
plaintiff contends, first, that, consistently
with the limitations imposed, it was quits
admissible for the court to determine and
establish the common boundary between the
two grants, and, second, that, by protesting
against the original survey, the on-ner* of
tbe Belen grant Invited the court to act in
the matter, and therefore were bound liy
its decision. But neither contention can
be sustained. The eourt of private land
claims was bound to respect the Belen grant
as confirmed by Congress and described in
the patent. It was not given any power to
reduce the area of that grant, or to mak*
any decisions respecting its boundaries that
would affect private rights In the grant On
the contrary, it was prohibited from doli^
so. And, of course, the owners of tbe grant
could not, by any act or consent of theirs,
oilarge the power of the court as defined
In the act creating it
It follows that the state courts rightly
refused to regard the acUon of the court
of private land claims as in any way con-
clusive of the rights of the owners of th*
Belen grant in the area in conflict. g
"Whether the person* who speared in th*>
I« Joya proceeding and objected to the
CMiUi:,
.A^iOOglc
uia.
HALL ▼. OmaXIUONES CO.
217
origisftl am-vef were kutliorizMl to repre-
sent or speak for kU who were interested in
the Belen grant seems to ha.ve been a dis-
puted question, but ss its decision would
not alTGct the result here, it requires no
further notice.
Judgment affirmed.
(Ml v. B. mi
BARRY T. HALL, SinteTinUndent of Banks
and Banking at the State of Ohio, Appt.,
GEIGEE-J0NE8 COMPANY. (No. 438.)
DON C. COULIRAP. (No. 439.)
CoHtfPiTUTiOBAL Law *=296(1) — Polici
Power— Dd« Pbocebs of Law— Equai.
PBOTEonoEt or thi Laws— "Blvz Sks"
Law.
1. Dealing In corporate or (junei cor-
iKirate securities without first securing a
licenae from a epecitled state ollicial, ob-
tainable only upon an application setting
out certain information respecting the ap-
C" lant'e business, with references establish-
good repute, ma; be forbidden bj a
•tate, in the exercise of its police power, as
Is done b7 Ohio Gen. Code, g^ 6373-1 to
«373-24, notwithstanding the declarations
«f U. S. Const. 14th Amend., that no person
thall be deprived of his life, tibert;, or
Sroperty witbout due process of law, or
enied the equal protection of the laws.
[Ed. Note.— ror otber eases, see Conatltntloaal
Law. Cent. Dig. gg SSU SU; Dec Dig. «=a28S(l).]
CONariTUTiOMAI. Law «=296(1) — Dm
PaocEsa OF Law— Confehbinq Arbitba-
BY I'oWKB ON Statz OiTiciAi*— "Blub
Skt" Law.
Z. Arbitrary power is not nnoonstitn-
'tlonaliy conferred upon the state superiik-
tendent of banks and banking, contrary co
U. S. Const. I4th Amend., by the provisiona
of Ohio Gen. Code, 85 637S-1 to 6373-24.
which require that oflicial, as a condition of
granting the license that such statute makes
ft condition precedent to dealing in cor-
porate or quasi cornorata securitiei, to be
aatisfled of the good repute in business of
the applicant and its selling agents, and
empower him to revoke the license or to re-
fuse to renew it upon ascertaining that tlia
Hcensee "is of bad business repute, hai vio-
lated any provision of the act, or has en-
gaged, or IS about to engage, under favor
of such license, in illegitimate business or
fraudulent transactions," since there is a
presumption against wanton action on his
part, and the statute also affords judicial
review of his action in eases where tlkere
may be a dispute of fact.
[Ed. Nota.—For other cases, tM ConatltutlODal
Law, Cent. DiE- ig SSI, 843; Dec Dig. i3=s29«a).]
CONSTITUTIONil. LAW «=3S9(1)— FSEEDOH
TO Contbact— "BI.TTS Skt" Law— Who
Uay CiiALi:.ENaE Valid in.
3. Dealers in corporate securities can-
not successfully urge against the validity
of the provisions of Ohio Gen. Code, gS
6373-1 to 6373-24, making a license a con-
dition precedent to dealing in corporate or
quasi corporate securities, that while the
statute in form prohibits sales, it at the
stune time necessarily prevents purchases,
and thereby shields oontemplating purchaa-
ers from the loss of propertT by the ezer-
ciso of their own defective Judgment, and
puta them, as well as the sellers, under
guardianship.
[Bd. NoU.-^OT other casw, ss* CaasUtoUonal
Law, Cent. Dls. 1 UI ; Dm. Dls. ^3S9(1).J
COCJSTITUTIOMAL LAW ^=>240(1) — LICENS-
ES ®=»7(1) — Equal Pbotkction of the
Laws— DiscBiinHATioN — "Blok Ski"
Law.
4. The equal protection of the laws is
not denied hy the provisions of Ohio Gen.
Code, SS 6373-1 to 6373-24, forbidding deal-
ing In corporate or quasi corporate securi-
ties without a license, b^ reason of the fact
that the statute discriminates between case*
where more or less than GO per cent of an
issue of bonds is included in a sale to one
person; between securities which have
and those which have not been authorized
by the State Public Servioe Commission;
between securities issued by certain cor-
porations organized under uie state laws
and those which are not; between an own-
er who sells his securities in a single
transaction and one who disposes of them
in successive transactions; between a bank
or trust company that sells at a com-
mission of not more than 2 per cent and
one which sells at a higher commission; be-
tween securities which have and those whidi
have not been published in regular market
reports; between single sales of $S,000 or
more and smaller trail sact] ons ; between se-
curities upon which there has and has not
been a default aa to principal or interest;
i>etween cases where the information re-
quired Is or is not contained in a standard
approved manual; between cases in which
the vendor proposes to sell securities for
which he has and those for which he hat
not paid DD per cent of his selling price;
and discriminates against securities when
any part of tbe proceeds is to be applied in
payment for patents, services, good will,
or for property outside of the state; against
securities issued by taxing subdivisions of
other states; against securities which have
not from time to time for six months been
published in the regular market reports or
the news columns of a daily newspaper of
general circulation in the state: and dis-
criminates where the aeeurities are or are
not of manufacturing or transportation com-
panies in the hands of bona nde purchasers
on a ipecifled date if such companiea were
on Uiat date and at the time of sale going
=iFar oUier ci
la topic « KSY-NUHBBB In all K«T-Numbar«l DlgcaU ft Indsue
SIS
8T SUPREME CODKT SEPORTEB.
Oct. Teru,
concemi; whK« tilt disposal la or is not
made for s eonunlsalon of leu tbsji 1 per
cent by a licensee vha Is s member of a
stock exchaDge sad who is conducting an
Mtabliebed and lawtal bueineis in the itate,
T^nlarlf open for public patronage; wbere
the securities are or are not those of a com-
mon carrier or of a company orguilzed un-
der the state laws and engaged principally
in the business of manufacturing, transpor-
tation, etc., and the whole or a part of the
iiroper^ upon whidi securities are based ta
ocated within the state: and provides for
such delays in the issue of a license and in
the subsequent conduct of busineBs there-
under as to hinder substantially, and in
many cases to prevent, sales.
IBd. NM*.-^ar oUier cues, M* COBitlCutlonal
Law, Cent Dls. II CN, G93, en, EM; Dec Dig.
«=>14a(l): Uoeniw, CodL Dig. H T. U ; Dec
COMUKBCE «=>10 — STATI REQULAriOK—
— "Blue Sky" Law — CoNaaEssioKAJ.
Inaction.
6. Congressional inaction leaves the'
state free to impose such an indirect or in-
eident&l burden upon interstate commence
as may result from the provisions of Ohio
Gen. Code, §§ 6373-1 to 6373-24, forbiddira
dealers from disposing or offering to dia-
having obtained a license from a spec i fled
state oFBcial.
red. Not*.— For other case*. ••• Commirc*.
Cent. Dig. t 81 Dk. Dig. «=3lO.]
[Nos. 433, 43D, and 440.]
Argued October IG and 17, lOlG. Decided
January 22, 1B17.
THHEE APPEALS from the District
Court of the United States for the^
fiouthem District of Ohio to review decrees'
enjoining the enforcement of the so-called
"Blue Sky" ]aw of that state. Reversed and
remanded for further proceedings.
Bee same case below, 230 Fed. 233.
2 Statement by Mr. Justice MoKenna:
* These caees were heard togetlier in the
distriet court and there disposed of in one
opinion. They were argued and submitted
together here. The bills of complaint at-
tacked from different angles the so-called
Blue Sky Law of the state of Ohio, which
provides:
"Sec. 8373-1, Eiccpt as otherwise pro-
vided in this act, no dealer shall, within
this state, dispose or offer to dispose of any
stock, stock certiflcates, bonds, debentures,
collateral trust certificates or other similar
Instruments (all hereinafter termed 'securi-
ties') evidencing title to or interest in
property, issued or executed by any private
•vor quasi public corporation, copartnership
■ or association •(except corporations not for
profit), or by any tasting subdivision of any
other state, territory, province or foreign
goTemment. without first being licensed so
to do as hereinafter provided."
"Seo. 6373-2. . i t TIm term 'dealer,'
as need in this act dtall Im deemed to in-
clude any person or company, except na-
tional iMnks, disposing or offering to dis-
pose, of any such security, through agent*
or otherwise, and any company engaged is
the marketing or flotation of Its own secur-
ities either directly or through agents or
underwriters or any stock promotion sclienw
whatsoever, except:
"(a) An owner, not the issuer of the
security, who disposes of his own property,
for his own account; when such disposal is
not mode In the course of repeated and
successive transactions of a similar char-
acter by such owner; or a natural person,
other than the underwriter of the security,
who is a bona fide owner of the security
and disposes of his own property for his
own account i . . .
"As used in this act, the term 'company*
shall include any corporation, copaitnersbip
or association, incorporated or unincorpo-
rated, and whenever and wherever organ-
ized; . . ." [Laws 1914, p. 110.]
The Geiger-Jones Company is an Ohio
corporation, licensed to do the huBinesa of
buying and selling investment securities,
and of buying and selling the stocks and
bonds of induetrial corporations. It lias a
rc^lorly established clientage. It alleges,
of about 11,000 persons residing in the
state of Ohio and other states, and has sold
and there are now outstanding in the hands
of persona to whom it has sold, securities
of atwut twenty to twenty-five million dol-
lars, par value, and has Etoekholders in
Ohio and other states. That the eecuritiea
above referred to consist of securities of
over twenty corporations of Oiiio and other
states and foreign countries. That it fsv
still selling such* securities and is and lias*
been engaged in Intrastate, interstate, and
foreign commerce.
The appellee, Don C. Coultrap, in No. 439,
repeats the allegations made by Geiger-
Jones Company, with enumeration of some
of the companies in whose stocks and secur-
ities that corporation is engaged in dealing,
and alleges that he is the owner and holder
of its stocks and of the stacks of otlier
companies, and is engaged in buying and
selling and offering to sell such stocks in
the state of Ohio and in the state of Penn-
sylvania, and in the course of such trans-
actions travels back and forth between
those states and conducts a correspondence
from Pennsylvania to Ohio, and receives
certificates evidencing the ownership of
stock from the state of Ohio, and sends
tliem from Pennsylvania to Ohio.
William R. Rose, one of the appellees In
No. 440, allies himself to be a citizen of
Ohio and engaged In that state in the bual<
■ IN same tcplc « KET-NUUBBR In atl Rer-
Di<«
"iw-ingic
19IS.
HALL T. GEIQBIUTONES 00.
210
ncsa of baylof and aelllng inTestment
wcnritles, uid pArtieuUrly the itockH uul
bonds of induatridl eoiporatlom, and thkt
be baa built up and maintained a large and
profitable buaineai and an enviable reputk-
The BiCbard Auto Manufacturing Com-
patij, the otlier appellee, it a corporation
it West Virginia, but has its principal
place of bnainesB In Clereland, Ohio, and
has a contract to manufacture and ii readj
to manufacture automobiles under eertaiii
patents obtained b; Francois RiChard at
soon as and not until the stock of the
companr can be put upon the market and
a auflicient amount realized therefrom tor
such purposes.
That on September 25, 1014, and prior
thereto, Rose was aotively engaged in buy-
ing and selling stocks and bonds of in-
dustrial corporations and inTestment secur-
ities in general, and particularly the stock
of the GtChard Auto Manufacturing Com-
pany, of which company he was the
^secretary, and for which business he bad
^unusual aptitude and was able to prosecute
■ more sncceasfullj "than any* other man
wliose services were available to eaid corpo-
That on September fifitfa he was aTTeatol
upon an affidavit Sled by one H. R. Young,
a subordinata and deputy of the stato niper-
intendent of banks and banking for tlie
state of Ohio, under whose immediate di-
rection and control he was then acting.
Rose, upon being talcsn before a magistrate,
waived examination and was "bound over
to the grand jury" of Cuyahoga county,
which jury subsequently returned an indict-
ment against him for violation of the law.
The grievance alleged in Nos. 438 and
43S is that, under the laws of the state,
the attorney general is threatening to give
an opinion to Uall, the superintendent of
banks and banking, that the law is valid,
and tbat it ia the duty of Hall to cancel
appellees' license, and tbat this will result
in irreparable injury to appellees and to
tlielr security holders from the publicity
they will obtain. And it is apprehended
that Uall will act on such advice, believing
that he is bound by the opinion of the
attorney general.
The statute ia attached to the bills, and
la asserted to be unoonstitutional, invalid,
and void, and the particulars are enumerat-
ed t« be that it will deprive appellees of
their property without due process of law,
deny them the equal protection of the laws,
impose burdens on tnterstat« commerce,
confer executive powers, del<^te such pow-
ers and legislative powers. In violation of
the Constitutlou of Ohio. Appellees oc»-
sidsr themselves remedileaa exoept in equity,
and pray la junctions interlocutory and
permanent.
The complaint of Rose and the Auto Com-
pany b that HaU, ■nperintendent of bauka
and banking, is actively engaged in the
prosecution of the proceedings against Bose,
and has, together with the prosecuting at-
torney, interfered with, interrupted, and
completely prevented Rose from carrying
on his buHlnesa in the sUte of Ohio, and
especially In attempting upon his part to^
dispose of and* sell the stock of the Autof
Company, and that the prosecuting attor-
ney and ths sheriff of Cuyahoga county, un-
less restrained, will aaaist and actively oo-
operata with Hall, to the great and irrep-
arable Injury of both Boea and ths Auto
Company.
The charge ia amplifled by details which
it is unnecessary to give, and the law Is
charged to be unconatitutionai in the same
particulars aa those enumerated by the
Oeiger-Jones Company.
Injunctions temporary and perpetual are
prayed.
The district court in the Oeiger-Jones
Case considered that It was without power
to enjoin ths attorney general, but de-
cided tbat it could and should, under the
chaises of the bill, restrain Hall from
further action under ths law, the restraint
to continue until the hearing and determi-
nation of the applications of the reapective
complainants for interlocutory injunctions.
The applications subsequently came to be
heard before three judges, and Hall and sJI
of his employees and subordinates were en-
joined from attempting to mforce the pro-
visions of ths law. There was an exception
in No. 440, aa folkiw*: "... except
such proceedings as may be deemed propel
In any criminal action pending against said
complabants or either of Otaa when the
complaint In this cause was Bled." Tlie
injunctions in all ths cases were to con-
tinue until final decision or further order
of the court. The court declared the law
to be obnoxious to all of tlie charges mads
by the reapective complainants against it
S30 Fed. 833.
Ur. Edward O. Turner, Attorney Oen-
eral of Ohio, tor appellant.
Messrs. John A. Shauck, Tlmoth; 8.
Hogan, A. M. McCarty, E. N. Huggias, M.
B. Johnson, H. H. Johnson, and Francis R.
Marvin for appellees.
Messrs. Robert R. Beed, George W, Wick-
•rsbam, and Charles K. Allen as amid
ouri*.
D,at,z.d-,.'^-.00'^IC
S7 SUPREME COURT REPOBTBR.
Oct. Tntif,
f 'Ur. JofltiM HcKeniiK, after atating tb*
ease aa above, delivered ths opinion «f th*
It will be observed that tbesa caaes bring
here tar judgment an aaaerted conQict be-
tween national power and atate power, and
bring, beg idea, power of tha atate a a limited
or forbidden by the national ConBtitution.
The assertion of Buch conflict and limi-
tation is an ever -recurring one; and ;ct it
Ifl approached aa if it were a new thing
under the enn. The primary poatulate of
the state is that the law under review is an
exercise of the polica power of the state, and
that power, we have said, ia the 1ea«t limit-
able of the exercise* of government. Sllgh
T. Kirkwood, 237 U. 8. 62, 50 L. ed. 836,
85 Sup. Ct Rep. 501. We get no accurate
idea of ita limitationa bj opposing to it
the declarations of the 14th .Amendment
that no person shall be deprived of his life,
liberty, or property without duo proceaa
of law, or denied the equal protection of
the lows. Noble State Bank v. Haskell, Slfl
U. 8. 104, 110, 56 L. ed. 112, llfl, 32 L.R.A.
(N.8.) 1062, 31 Sup. Ct. Rep. IBB, Ann.
Cas. 1012A, 4S7. A stricter inquiry la
neccBBsry, and we must consider what it ia
of life, liberty, and property that the Con-
stitution protects.
W)iat life is and what may or may not
affect it, we have quite accurate tests; and
what liberty is in ita outside sense, and, in
like sense, what property ia. We know
g, that it is of the essence of liberty—indeed,
3 we may say. of life — that there shall be
* freedom of conduct, and yet there mBy*ba
limitations upon such freedom. We know
that, in the concept of property, there ara
tlie rights of ill acquiaition, disposition,
and enjoyment. — in a word, dominion over
It. Vat all of theaa righta may be regu-
lated. Such are the declarationa of tbe
casea, become platitudes by frequent repeti-
tion and many instances of application.
The question, then, is. Is Uie statute of
Ohio within the principles declared I Ilie
statute is a restraint upon the disposition
of certain property, and requires dealers
in Bccuritiea evidencing title to or interest
in such property to obtain a license, — a
requirement simple enough in itself, and yet
of itself asserted to be an illegal control
of a private business, made especially ao
by the couditiona which ara imposed. These
conditions, summarised, are as follows:
To obtain the license there must be filed
with the auperintendent of banks and bank-
ing (termed in the act "commissioner")
application for such license, together with
information in such form as ths commis-
sioner shall determine, setting forth:
"(a) The names and addreaaea of the di-
rectors and officers it auch applicant be a
corporation or asaaelation, and of all part-
ners If !t be a partnerablp, and of the per-
son if the applicant be an individual, to>
gether with namea and addresses of all
agents of aueb applicant asaisting in tha
disposal of such securities;
"(b) Location of the applicant's princi'
pal office and of his principal office in tl)p
atate. If any;
"(c) The general plan and character of
the buainess of aaid applicant, together
with references which the 'commissioner*
shall confirm by such investigation as ho
may deem necessary, establishing the good
repute in busineaa of such applicant, di-
rectors, officers, partners, and agents.
"If tbe applicant be a corporation organ-
ised under the laws of any other state, ter-
ritory, or government, or have its principal
place of busineaa therein, it shall also file
a copy of its articlea of incorporation, oerti-is
fied by the proper*officer of such state, ter-!>
ritory, or government, and of its regulations
and by-Iawa; and if it be an unincorporated
association, a certified copy of its articlea
of association, or deed of settlement."
The applicant is also required to file a
written instrument irrevocably consenting
to be sued in a particular county, and, if
personal service there cannot be had, con-
senting te service upon the sherifF of the
county.
It is also provided that ftll of the appli-
cations shall bs published in a daily news-
paper, and if the commissioner he aatiafied
that the applicant is of good repute, h«
shall, upon payment of certain fees, register
tha applicant as a licensed dealer in aecur-
itiee. Pending disposition of the applica-
tion, temporary permission to transact busi-
ness may be given. Yearly renewals of Ut*
licensea are provided for.
The commissioner may revoke a license
upon ascertaining that the licensee: (a) la
of bad repute; (b) has violated any pro-
vision of the act; or (e) has engaged, or
is about to engage, under favor of such
license, in illegitimate buaineaa or fraudu-
lent tranaactions.
It will be observed, therefore, that the
law is a regulation of business, constrains
condnet only to that end, the purpose being
to protect the public against the imposition
of unsubstantial schemes and the aecuritiea
based upon them. Whatever prohibition
Uiere ii, la a means to the same purpose,
made necessary, it may Ik supposed, by
the persistence of evil and ita iusidioue
forma and the experience of tbe inadequacy
of penaltiea or other repreaaive measurea.
Hie name that is giveu to the law indicates
the evil at which it ia aimed; that ia, to
uae the language of a cited eaae, "specula-
tive schemea which have no more basi»
D,at,z.d-,.'^-.00'^IC
U16.
aAI<L T. GEtGEB^ONBS CO.
221
tbu Ml many fe«t of 'bint sky;'" or, ma
■tated bj counEsl in utotlier caM, "to stop
Uia lale of atock in flj-bj-nigtit eoncems,
TiBionarj oil wella, distant gold mines, and
^otlker like fraudulent ezploitationi." Etbu
gif tha descripttDni be regarded as rhetorleal,
• the existence of tfril is 'indicated, and a,
belief of ita detriment; and we shall not
pause to do more than atate that the pre-
vention of deception is within the eompe-
tencj ol govemment, and that the appre-
ciation of the consequences of it is not open
for our review. Trading Stamp Cases, Rait
T. Van Deman ft L. Co. 240 U. S. 342, 60
L. ed. e79, L.R.A.19I7A, 421, 3S Sup. Ct.
Eep. 370; Tanner v. Uttle, 240 U. B. 869,
60 U ed. 091, SB Sup. Ct. Bep. 370; Fitnej
T. Washington, 240 U. S. 387, 301, 60 L.
ed. 703, 70fl, 30 Sup. Ct Kep. 385. There-
fore, tlie purpose being legal, the question
only remaina whether the manner In which
It ia accomplished is ill^al. This is con-
tended, and the proviaiona which render
the law Toid are found, it ii stated, in:
<1) Power conferred upon the commiseion-
er to gTBJit OT refuse licenses; (2) the
authority given the commissioner to place
forbidden restrictiona and burdens on Ute
conduct of the buiineaa of one who haa ob-
tained a license.
The baaia of tiiese contention! ia that
the law confers arbitrary power upon the
eommisaioner. In considering the conten-
tiona we must keep in mind that the law 'is
addressed to a complex situation. Ita pur-
pose is, as we have seen, to give a baaia
for judgment of the securitiee offered the
parohaaing public; assure eredit where it
ia deserved and confidence to investment
and trading; prevent deception and aave
credulity and ignorance from imposition,
>a far aa this can be done by the approved
reputation of the seller of the securitlea
and authoritative information.
It may, however, be said that character
eetabtishes itself, and neither needs nor '
can be compelled to accept the atamp of
government; and it is asserted that the
"normal investment bnaineaa of the ooun.
try" and its "individual transactions" are
Bot subject to "executive control," — the
broad contention being made that, aa suoh
business cannot be prohibited, it cannot be
regulated. This, indeed, is the baslo prin-
eiple of ths opposition to the statute. It
is expresBed in many waya, and the various
provisions of the statute— those that are
explicit in direction to the commissioner and
^thoee that commit discretion to him — are
jgeaid to so burden and complicate "normal
• business as to 'make it difficult. If not im-
possible, to carry It on in a normal way, if
at all."
As broadly made, ws cannot assent to
these proposltionB. The reason and extent
of the law we have indicated and the control
to which Individual transactions are anh-
jeeted, and we think both are within the
competency of the state. It is to be re-
membered that the value of securities eon*
sists in what they represent, and to deter-
mine such value Is a complex problem even
to the moat skilful and informed.
We have very lately decided a case upon
the principle of the power of the state to
prevent frauds and impositions. Hutcliin-
son Ice Cream Co. v. Iowa, 242 U. S. 153,
ei L. ed. 217, 87 Sup. Ct. Rep. 28. The prin-
ciple applies as well to securities as to ni»-
terial products, the provisions of the la.w
necessarily varying with the objects. Aa
to material products the purpose may t>e
accomplished by a requirement of inherent
purity. The intangibility of securities, they
being representatives or purporting to be
representatives of something else, of prop-
erty, it may be, in distant states and coun-
tries, schemes of plausible pretensions,
requires a difference of provision, and the in-
tegrity of the securities can only be assured
by the probity of the dealers in them and
the Information which may be given of
them, lliie assurance the state hoe deemed
necessary for its welfare to require; and ths
requirement is not unreasonable or inap-
propriate. It extends to the general market
something of the saf^fuards that are given
to trading upon the exchanges and stock
boards of the eonntry, — safeguards that ex-
perience has adopted as advantageous. In-
convenience may be caused and supervision
and surveillance, bnt this must yield to the
public welfare; and against counsel's alarm
of consequences, we act the judgment of tha
We turn back, therefore, to consider the
more specific objections to the law. The
basis of them is, as we have seen, the power
conferred upon the commissioner, which Isb
•asserted to be arbitrary. The objection is?
somewhat difficult to handle. It centers in
the provision that requires the commis-
sioner, as ■ condition of a license, "to be
satisfied of the good repute in business of
such applicant and named agents," and in
the power given him to revoke the license
or refuse to renew it upon ascertaining that
the licensee "is of bad business repute, has
violated any provision of the act, or has
engaged or is about to engage, under favor
of such license, in illegitimate business or
fraudulent transactions." It is especially
objected that, as to these requirements, no
standard is given to guide or determine tlie
decision of Uia commissioner. Therefore, it
is contended thst the discretion thus vested
leaves " 'room tor tha
,A_.OOglC
t7 BUPBSaiE COUBI BXPUKTER.
Oot. Itau,
play and kctton of purely pcroonal sad
nrbitrkiy power,' "
We are a UtU« furprlud that it alkould
be implied that there U an; thicg recondite
in a buBineHs reputation or its existence as
a fnct nhich should require much investiga-
tion. If io special cases there may be con-
troversy, those cases the statute takes care
of; an adverse judgment by the commis-
sioner is reviewable by the courts. | 6373-
8. So also as to the other judgments.
Beeides, it is certainly apparent that, if
the conditions are within the power of the
state to impose, they ean only be ascer-
tained by an executive officer. Keputation
and character are quite tangible attributes,
but there can be no legislative deflnitlon of
them that can automatically attach to or
identify individuals possessing them, and
necessarily the aid of some executive agency
muEt be invoked. The contention of appel-
lees would take from government one of
its moat essential instrumentalities, of
which the various nations! and state eom-
miseions are instancea But the contention
may be answered by authority. In Gund-
ling V. Chicago, 177 U. S. 183, 44 L. ed. 726,
20 Sup. Ct. Rep. 633, an ordinance of the
,eity of Chicago was passed on which re-
^ quired a license of dealers in cigarettes, and,
•as a condition *of the license, that the ap-
plicant, if a single individual, all of the
members of the Ann, if a copartnership, and
any person or persons in charge of the busi-
ness, if a corporation, should be of good
character and reputation, and the duty was
delegated to the mayor of the city to deter-
mine the existence of the oonditlons. The
ordinance was sustained. To this ease may
be added Red "C" Oil Mfg. Co. t. Board of
Agriculture, 222 U. S. 330, 304, 66 L. ed.
240, 245, 32 Sup. Ct. Rep. 162, and caaes
cited; Mutual Film Corp. v. Industrial Com-
mission, 236 U. S. 230, 60 L. ed. 662, 36
&up. Ct. Rep. 3S7, Ana Cas. 19ieC, 296;
Bra^Lee v. Michigan, 241 U. 8. 340, 341, 60
L. ed 1034, 103S, 36 Sup. Ct. Rep. 661. See
also Eects T. Michigan, 18S U. B. 606, 47
L. ed. 503, 23 Sup, Ct. Rep. 300; New York
ex rel. Lieberman t. Van De Carr, 109 U. 8.
e52, 50 L. ed. 306, 26 Snp. Ct. Bep. 144.
The discretion of the commissioner Is
qualified by his duty, and besides, as we
have Eppn, the statute gives judicial review
of liis action. Pending such review, we must
Hccrird to the commissioner a proper sense
of duty and the presumption that the func-
tions intrusted to him will be executed in
the public interest, not wantonly or arbi-
trarily to deny a license to or take one
away from a reputable dealer. (Plymouth
Coal Co. T. Pennsylvania, 232 U. S. 531,
545. SS L. ed. 713, 719, 34 Sup. Ct. Rep.
350) : and, as we have said, in cases whers
there ean be % disput* of faet, the atalut*
provides for Judicial review, and m aee
no legal objection to the designation ol a
particular court for such review.
We are not disposed to give serious at-
tention to the eontoition that while the
statute In form prohibits eales, "It at tiie
same time necessarily preventa purdiasea,
and thereby shields contemplatad purchaser*
from loss of property by the exercise of their
own "defective judgment," and puts them
as well aa the sellers under guardianship.
If we may suppose that such purchasers
would assert a liberty to form a "defective
judgment," and resent means of informa-
tlon as a limitation of their freedom, we
must wait until they themselves appear to
do so. Besides, there are examples in leg-
islation of unsolicited protection, and thereS
is much in the business we are* considering!?
which urges to sn imitation of the ex-
amples. It is not wise to put out of view
the tendencies of the business, and that it
tempts to and facilitates speculative judg-
ments, if the purpose be trading, improvi-
dent judgmenU, if the purpose be invest-
ment. Whatever detriment may come from
such judgment* the law may be powerless
to prevent; but against oounterfeita of value
the law ean give protection, and such is the
purpose of the statute under review, It
must be judged of upon tliat consideration,
not upon the assertion of an absolute lib-
erty of conduct which doe* not exist.
Discriminations are asserted against the
statute which extend, it is contended, t«
denying appellees the equal protection of th*
laws. Counsel enumerate* them as follows:
'Tromlnent among such discrimination*
are between the cases where more or less
than 60 per eent of an issue of bonds is
included in the sals to one person; b^
tween securities which have and which ban
not been authorised by the Pnblie Stfvie*
Commission of this state; between the secur-
ities issued by a bank, trust company, a
building and loan association organised
under the laws of tills state and those which
are not; between an oimer who sella his
securities in a single transaction and one
who disposea ol them in luccessive trans-
actions; lietwecn a bank or trust eompany
who sells at a commission of not more than
2 per cent and one which sslls at • highsr
commission; against leenritlea when any
part of the proceeds to be derived from the
sale are to be applied in payment for pat-
ents, services, good will, or for property
not located in this state; in providing for
such delays in th* issuance of a license and
in the subsequent conduct of business there-
under a* to aubstsntially hindsr, and in
many ease* naturally arising, to utterly
prevent HOeai in dieerinUnating between
A^^OOglC
U18.
HALL ▼. GEIOSBJ0NX8 GO.
Mcnritiei idilch hrnv* lad which han not
SbMB publUbad in ngjUai muiet reports;
rbetweai iaIm where, in » ilngla tranuction,
the Bkla !■ for 15,000 w more; In dUcrlml-
natloni Kgeinit aecnritiaa itaued by taxing
aubdiTitiona of other itatee; between aeeui-
itiea upon which there bee and baa not
been a defanlt aa to principal or intereat;
againit aecnritiea whioh have not from time
to time for atz monUii been publlahed in
the regular market report* or the newa col-
amna of a daUj nawgpaper of general eircu-
laticm tn the state; where the aecuritiea are
or are not of manufacturing or tranaporU-
tioB eompauiea in tha handi of bona flde
purehaaara prior to March lit, ISK, where
■nch oompanies were on that date, and thall
be at the time of the propoaed aale, going
eoneema; tietween caaes where the Informa-
tion contemplated ia or is not contained in
a standard manual of information approved
bj Oit commiasioner; where the diapoaal is
or ia not made for a commiealon of lea> than
1 per cent of the par value thereof by a
licenaee who ia a member of a regularly
organized and recognized stoelc exchange
and who haa an eetabliahed and lawfully
conducted bnalneos in thia state, regularly
open for publie patronage aa such; between
eaaea In whioh the vendor proposea to aeil
aecuritiea for which be baa and thoae for
which be has not paid 90 per cent of the
price at which they are to be aold by him;
where the aecuritiea are or are not thoae of
a common earner or of a company organ-
ized under the laws of thia state and en-
gaged principally In the buaineas of manu-
fttcturing, tranaportation, etc., and the
whole or a part o( the property upon which
Buch aecuritiea are predicated are located
within this Btate."
We cannot give aeparata attention to the
aaaerted diacriminationa. It la enough to
aay that they are within the power of claa-
siflcation wblch a state hae. A state "may
direct Its law against what it deems the
evil aa it actually eziita without covering
the whole field of posaible abuaea, end It
gnay do so none the leas that the forbidden
• act doee'not differ in kind from tlioae that
are allowed. ... If a elaas Is deemed
to present a conapicnous example of what
the I^alature seeks to prerent, the 14th
Amendment allows it to be dealt with
although otherwise and merely logically not
distinguiabable from others not embraeed
in the law." Cmtral Lumber Co. t. South
Dakota, 226 U. S. isr, ISO, S7 L. ed. 164,
169, SS Sup. Ct. Rep. 60. The caaea were
cited from which thoae propositions were de-
duced. To the same effect Is Armour A Co.
T. North DskoU, £40 U. S. 817, 00 L. ed.
776, 3« Sup. Ct. Kep. 440, Ann. Gas. lOlOD,
I The next contention of appellees is that
Uie law under review is a burden on inter-
state eommeree, and therefore contravenes
tiis commerce clause of the Constitution of
the United Statea. There is no doubt
of tha inpremacy of the national power
over interstate oonunerce. Its inaction, it
is true, may Imply prohibition of state leg-
islation, but It may Imply permission of
such l^slation. In other words, the bor-
den of tha legislation, if It be a burden, may
be Indirect and valid in the absenoe of the
assertion of the national power. So much
is a truism; there can only be controversy
about ita application. The language of the
statuta is: "Exoept as otherwise provided
in this act, no dealer shall, within tki* itata,
dispose" of eertain securities "issued or
executed by any private or quasi publie
oorporation, copartnership or association
(exoept Dorporations not for profit) . .
without first being licensed so to do as here-
inafter provided."
The proviaiona of the law, it will be ob-
served, apply to dispoaltiona of securities
within the atate, and while information of
those issued in other atatea and foreign
eonntriea is required to be filed (S 637^0),
they are only affected by the requirement of
a license of one who deals in them within
the state. Vpon their transportation into
the state thsra is no impediment, — no r^u-
lation of them or interference with them
after they get there. There is the exaction
only that he who disposes of them thereS
ahsjl'be licensed to do ao, and this onlyP
that they may not appear in false character
and Impose an appearance of a value which
they may not possess, — and this certainly
ia only an indirect burden upon them as
objects of interstata eommeree, if they may
be r^arded aa such. It Is a police regula-
tion stricUy, not affecting them until there
is an attempt to make disposition of them
within the state. To give them more im-
munity than this is to give them more Im-
muni^ than mora tangible articles are
given, they having no exemption from regu-
lations the purpose of which is to prevent
fraud or deception. Such regulations effect
interstate commerce in them only incidental-
ly. New York ex rel. Hatch v. Beardon,
204 U. 8. 152, SI L. ed. 415, 27 Sup. Ct.
Sep. 188, 9 Ann. Cas. 736; Ware ft Ice-
land V. Mobile County, 200 U. S. 405, 62
L^ ed. 865, 28 Sup. Ct Hep. 520, 14 Ann.
Cas. 1031; Engel v. O'MBlley, 219 U. 8.
128, 55 L. ed. 128, 31 Sup. Ct. Rep. 100;
Brodnax v. Missouri, 21S U. S. 286, 55 L.
ed. £19, 31 Sup. Ct. Rep. 238; Banker Bros.
Co. T. Pennsylvania, 222 U. B. 210, 50 L.
ed. 108, 82 Sup. Ct. Rep. S8; Savage ▼.
Jonu, 225 U. S. 501, 56 L. ed. 1182, 32 Sup.
Ct. Bep. 716; Standard Btock Food Co. T.
D,at,z.d-,.'^-.00'^IC
224
37 SDFBBHE COURT REPORTEB.
Oct. Tnti^
Wright, 225 C. 8. G40, G« L. ed. 1107, 32
Bup. CL Rep. 7S4i Tradiog Stamp Cases,
supra. With these caeca International
Teitbook Co. V. Pigg, 217 U. 8. 91, 54 L.
ed. 678, 27 L.R,A.(N,8.) 493, 30 Sup. Ct.
Rep. 481, 18 Ana. Can. 1103; Buck Stove
&, Range Co. v. Vickers, 226 U. S. 206, 57
L. ed. 18B, 33 Sup. Ct. Rep. 41, and the
Lottery Case (Champion v. Ames) 183 U.
S. 321. 47 L. ed. 482, 23 Sup. Ct. Rep. 321,
13 Am. Crim. Rep. 561, axe not in diicord-
We might, indeed, ask. When do the
designated secnritiea cease migration in in-
terstate commerce and settle to the jurisdic-
tion of the statet Material things, choses
in possession, paM out of interstate com-
merce when they emergo from the original
package. Do choses in action hare a longer
immunityT It is to be remembered that
though they may diHer in manner of tr
fer, they are in the same form in the hands
of the purchaser as they are in the haods
of the seller, and in the hands of both as
they are brought into the state. We aslt
again, Do tbej never pass out of interstate
commercer Have they always the freedom
of the state T Is there no point of time at
which the (tate can expose the evil that
they may maslcl Is anything more neces-
sary for the supremacy of vthe national
S power than that they be kept free when in
• actual transportation, subjected to the juris-
diction of the state only when they are at-
tempted to be sold to the individual pur-
chaser? The questfoDB are pertinent, the
answer to them one way or the other, of
consequence; hut we may pass them, for,
regarding the securities as still in inter-
state commerce after their transportation
to the state is ended and they have reached
the hands of dealers in them, their Inter-
state character is only incidentally affected
1>7 the statute.
Decree reversed and the cause remanded
for further proceedings in conformity with
this opinion.
Hr. Justice HcReTnoIda dissent*.
aa u. 8. est)
CLARENCE C. CALDWBU>, aa Attorney
General for the State of South DalcoU
and ex officio Member of the State Securi-
ties Commission of tb« State of South
Dakota, et al., Appta.,
SIOUX FALLS STOCK YARDS COM-
PANY, William Morley, and Harry Mor-
ley.
CoUETs «=3282(1), 308(2) — EirJoiniRa
State Officebs — Civu. os OBiuraai.
PBOGBEDINQB.
1. The jurisdiction of a Tederal district
court to enjoin the threatened enforcement,
by state ofScials, tbrougit civil or criminal
proceedings, of the provisions of 8. D. Laws
X916, chap. 275, prohibiting dealing in cor-
porate securities without state sanction,
which are assailed as repugnant to the Fed-
eral Constitution, may not be successfully
challenged on the grounds that complainants
have a plain, speedy, and adequate remedy
at law; that Uie suit is one against the
atate; and that the plea of the unconstitu-
tionality of the statute waa made in certain
pending criminal actions, — where six infoim-
ations for violations of the statute have al-
ready been filed against complainants, and
as many more may be brought as there
may be violations of the statute, and a con-
viction of each may bear a fine of |I,000 or
imprisonment, or both, and where the de-
cree does not enjoin criminal actions com-
menced before the Sling of the bill.
[Bd. Note.— Per other casaa, ■•• Courts. Cent.
■DIa. II 820, S24. S44U; Dec. Die «=s»(U.
GoNSTiTUTTonAi, Law «3s296(1) — Pouce
Powxa— Dns Pkogbss of Law— Equal
Pbohotioh or rmt Laws— "Bldx Sky"
2. There is nothing in the 14th Amend-
ment to the Federal Constitution which pre-
vents a state from enacting, in the exereiBS
of its police power, such a statut« aa 8. D.
Laws 1S16, chap. 275, which forbids (with
certain exceptions and exemptions) the sals
of corporate or quasi corporate securities
that have not first received the approval of
the State Securities Commission, obtainable
only after certain prescribed data have l>een
filed with the Commission, and requires
dealers in such securities to obtain a license
from the Commiaaion, and forbids them to
deal in any other than approved securities,
or to transact business on any other plan
than that set forth in the statements and
papers which they have filed with such
Commission.
"[Ed. Nota.- For other eases, see ConsUtntlonal
I,Bw, Cent. DIE. II 131. M; Dec Dig. ^=3lM(U.]
CouuEBCG ff=»10— Statk Rsoui^noN —
"Blue Skt" Law— ConaBKssiOKAL In*
ACTION.
3. Until Congress acta the state is free
to impose such an incidental or Indirect
burden on interstate commerce as may re-
sult from the provisions of S. D. laws 1915,
chap. 275, which forbid (with certain ex-
ertions and exemptions) the sale or dis-
position of corporate or quasi corporate
securities within the atate without stata
sanction.
B.— Par otbar ea—. sm
10.1
Argued October 16 and 17, 191B. Decided
January 22, 1917.
APPEAL from the District Court of the
United States for the District of South
Dakota to review a decree enjoining the en-
forcement of the so-called "Blue Slcy" lasr
U Ker-Hnmbered Diawu * IndaMe
v*^iOOglC
1S16.
CALDWELL t. SIOUX FALI2 STOCK YARDS 00.
«f Uiat (tete. BeverBed and remanded for
further proceedingB.
The factB are stated in tlie opiniDD.
Mr. Clarence C. Oaldwoll, Attorney
General of South Dakota, in propria per-
sona, and Mr, Bjron 8. Payne for appel-
lants.
Mesers. George J. Danfortli, Hugh S.
Gamble, Frank McLaughlin, and Edward E.
^Wagner for appellees.
• * Mr. Justire McKenns delivered the opin-
ion of the court:
His caae wbb argued and submitted irith
Kos. 43S, 430, and 440, juet decided [242
U. S. 539, 61 L. ed. 480, 37 Sup. Ct. Hep.
217], and with No. 413 [242 D. S. 5CS, 01 L.
ed. 408, 37 Sup. CL Rep. 227], which con-
ceruB a statute of Michigan of like kind, the
opinion in which is to follow. It involves
the same general queatioos as those casea, and
U presented tc review a decree of the dis-
trict court enjoining appellanta from en-
forcing a statute of the state of South Da-
kota relating to the sale of aecuritiea. The
act ([Sees. Laws ISIS, chap. 275] g 23)
makes Tiolations of Its provisions a miide-
meanor, and criminal prosecutions under
the act were the particular actiona of the
officera of the «tate tiiat the appellees
prajed to be enjoined.
After a consideratlou of the pleadings
and argument the court, constiting of three
judges, e:cpre8sed the rlew that the statute
▼iolated the Constitution of the United
States, and cited in confirmation Alabama
Sft N. 0. Transp. Co. v. Doyle, 210 Fed. 173;
■FWilliann K. Compton Co. t* Allen, 216 Fed.
637; and Bracey t. Durst, 21S Fed. 4S2.
The court decreed that the appellants be
enjoined from instituting and prosecuting
tmj action!, civil or criminal, agninst com-
plainants (appellees) under the statute for
alleged Tiolations thereof, and from taking
any proceedings for its enforcement except
•uch as might be deemed proper by them in
the criminal actions already pending.
The Sioux Falls Stock Yards Company Is
a Colorado corporation, having its principal
place of business at the city of Denver, and
the Morleys are residents and citizens of
Ttie Stock Tarda Company was at the
times mentioned in the hilt engaged in build-
ing and oonstructing a stock yard in Sioux
Falls, South Dakota, and in selling a cer-
tain amount of its capital stock for raising
■uflicient capital for that purpose. The
Morleys, at such Ume, were engaged In
the Imying and selling of stock and especial-
ly in Belling the stock of the Stock Yards
Company to rarious farmers and other pur-
chasers, inch sales being necessary to com-
plete the eonstmction of the stock yard,
37 B. C— IB.
and also necessary to enable the Morleys to
earn a livelihood.
Six informations were filed against appel-
lees at the Instigation of appellants for vio-
lations of the statute, and it U alleged that
appellees will be prosecuted immediately
under such informations and will be further
prosecuted.
Tlie statute. It It alleged, Is an infrac-
tion of the 14th Amendment of the Consti-
tution of the United States, and imposes a
burden upon and practical ly amounts
to a prohibition of interstate commerce,
and hence offends the commerce clause of
the Constitution of the United States; and
"that it attempts to vest in and delegate
to the State Securities Commission judicial
powers unauthorized by law."
Against the bill appellanta urge, beBidea
asserting the validity of the statuts, threed
defenses: (1) That 'complainanta have a?
plain, speedy, and adequate remedy at law;
(2) the suit is one agaiust the state; (3)
that the plea o( the nnconsUtutionallty of
the statute waa made in the criminal ao-
The three defenEea are without merit.
Six informations hare already been filed
against appellees and as many more may ha
brought as there may be riolationa of the
statute, and a eonviction of each may bear
a fine of $1,000 or imprisonment, or both.
The suit manifestly ia not one against
the state, and the decree appealed from
does not enjoin criminal actions commenced
before the filing of the bill. We therefore
pass to the merits.
A summary of the statnte is all that is
necessary. Its purpose as declared In its
title Is to prevent fraud In the sale and dis-
position of stocks, bonds, or other securi-
ties sold or offered for sals within the state.
It creates a eommlsslon, called the State
Securities CommisBion, of which the appel-
lants— except Hanson, who Is prosecuting
attorney of Turner county — are members.
Those dealing In securities — and they may
be persons, corporations, copartnerships,
companies, or associations. Incorporated or
unincorporated — shall be known, it Is pro-
vided, "as a domestle investment company."
Those resident of or organised In any other
state, territory, or government shall be
known "as a foreign investment company."
Certain securities are exempt from the
provisions of the act, and information as tc
those to which It applies must be fur-
nished to the Commission aa follows: If
the securities are of the dealer's own issue,
a statement must be filed with the Com-
mission, showing in full detail (1) the plan
upon which it proposes to trauaact busi-
ness; (2) a copy of all contracts, stocks,
and bonds which it prc^oaea to make with
,A_^OOglC
87 SUPREME COUBT BEPOBXEB,
Oct. Tebu,
hOF Mil to oontrlbutcn or eustomeri, to-
ggether with a copj of its piOBpectiu and of
* th« proposed adrertbementa of iti'KcuH-
tiea; which statement shall also show the
names and location of its main office; (3)
the names and addresses of its <^ceri and
an Itemized account of its financial condi-
tion and the amount of its asBets and lia-
bilities; (4) such other information as the
Commission maj require; (G) if a foreign
corporation, a copy of the law under which
it wae incorporated; (6) a copy of its
charter and certain other papers relating
to its constitution and organisation. A fil-
ing fee is provided for of not leas than $10
nor mors than $100. The described papers
are to be yerifled, and, if of record, certi-
fied to. If a foreign corporation, the ap-
plicant must file its irrerocable consent to
suits against it by service of summons upon
the public examiner.
The Commission is authorized to require
further information Uian that mentioned
above, and to make an appraisal of the
property of the applicant at the ezpeiiBe
of the applicant.
If the Conunisiion find from the state-
ments filed and the reports of the investiga-
tions conducted by it that the securities or
Investment contracts offered for sale would,
in its opinion, work a fraud upon the pur-
chaser, the Commiesion shall disapprove of
their sale and notify the company by reg-
istered mail of its findings and dbapproval,
and it shall be unlawful for the company
to sell such securities, and they shall not
be sold in the state. If, however, the pro-
posed plan of business and the securities
are not of that character their sale shall
be approved and a certificate Issued of per-
mission to sell.
The person who is authorized to sell the
securities designated in the act is termed
a "dealer" in them, and he shall not sell
or ofl'er them for sale until he shall have
filed a list of the same in the office of the
Commission. The term "dealer," it is pro-
vided, shall not include an owner nor issuer
of securities when the sale of them is not
made In the course of continued and succes-
esive transactions of a similar nature, nor
• one who. Id a trust capacity created •by
law, lawfully sells seonrities "impressed
with such trust." A "dealer" Is required to
furnish practically the same information
as that required of corporations. All au-
thorized agents of a "dealer" or investment
company shall be registered with the Com-
mission, and if the "dealer" be a nonresi-
dent or a corporation other than a domestio
corporation, he shall, at the time be regis-
ters with the Commission, file with it a
written, duly authenticated appointment of
the public examiner of the state as his or
its agent in the state upon whom poceas or
pleadings may be served for or on behalf of
the "dealer," which appointment shall be
irrevocable. Upon oampliance with the
terms of the act, the Conmiission shall issue
to such "dealer" a license which shall be
good until revoked by the Commission for
good cause upon notice to the "dealer," and
after a hearing duly had.
There is a provision for keeping accounts,
payment of Sues, and other details, and it
is provided that if, after permission has
been issued authorizing the sale of the desig-
nated securities, it shall be made to appear
to the Commission, from an examination
of an investment company, that the further
sale of the securities would work a fraud
upon the purchaser, the Commission may
make on order revoking the lioense of the
company, and, pending the hearing, suspend
the right of the company.
It is unlawful for a dealer or investment
company to sell or offer for sals securities
other than those approved by the Commia-
sion, or to trausact business on any other
plan than that set forth in the statements
and papers required to be filed with the
Commission; or to circulate advertisements
or other documents in the state differing in
any way from the copy filed with the Com-
mission; or until the same has been ap-
proved by the Commission. And no dealer
shall sell or ofl^er for sale securities of an
investment company until such company
has complied with the act. He may, how-,,
ever, if such investment company has no^
tsclf complied with the act, moke appllca-*
tion for a license.
Kecords of the Commission shall be pub-
lic records, and they shall he so arranged
and preserved as to facilitate their examina-
tion, except that the Commission may, in
its discretion, withhold information relating
to the private affairs of persons or corpora-
tions when. In its judgment, the same shall
not be required for the public welfare, or
any information relative to any matter
that may he at issue In any court, unless
upon an order of the court. Except as so
provided, the Commission may fumlsb to
those who may apply therefor any informa-
tion regarding any invMtmeut company or
its affairs.
Annual statementa are required to be
filed by Investment companies, domestic or
foreign, in such form and containing such
Information as the Commission may de-
mand; and failure to do so forfeits its per-
The supreme court of the state, upon pe-
tition of any person aggrieved, may review
by certiorari any final order or determina-
tion of the Conunission. The Issue of ths
writ shall not, however, nnleas specifically
A^iOOglC
191*.
MEBRICE T. HAL8ET A CO.
£27
ordered by ttis eonrt, operkte ■■ a aUy of
proctedlngi.
Violations of the ui ue made mitde-
meaiiDra punUhable by a floo of not :
than 11,000 or impTiioiuiieiit for not more
>han one year, or both fine and imprison'
ment. And it ii provided that If any see-
tlon of the act be declared unconetitutlontl
or unauthorized, the other Bectlona ehal]
not be vacated therebj'.
The statute of Sontli DalcoU differa in
aottie details from th« statute of Ohio, but
in iU purpose and general provisions it ia
the same. There Is urged against It, aa
WM urged against the Ohio statute, that It
rlolatea the 14th Amendment and the com-
merce clause of the Constitution of tho
United States. Hie argument to support
^these contenticos, while affluent in citation
gof cases. Is not so ciTcnmstantisJ at that
• which is presented against 'the Michigan
statuU. Therefore, we shall rest this
upon oar opinion in Nos. 43S, 430, and 440
[242 D. S. 639, 61 L. ed. 480, 8T Sap. OL
Rep. 217], reserving to the Michisen case
reply to the more speetfio objeotlons.
Decree reversed and cause remanded for
further proceedings in conformity with this
opioioD.
Mr. Justice HcHernolda dissents.
(M tr. B. sm
FRANK W. UBRHIGK, John W. Eaarer,
and Grant Fellows, Appts.,
CoifBTiTUTioiTAL Law «=>296(1>— Pouox
PowKB— Dna Pboosb or Law—Equai.
Pboixotjon or vex Laws— "Bluz Skt"
Law.
I. The police power of the state justl-
He*, notwlthitandiiig the limitations of U.
8. Const. 14th Amend., tlie enactment of
Hicfa. Pub. AcU lOlS, Act No. 4«, which
forbids (with certain exceptions and ex-
emptions) tho sale of eorporata or quaai
corporate securities that have not first re-
ceived the approval of the State Securitiea
Commission, obtainable only after certain
prescribed data have been filed with the
Commission, and requires dealers In such
•eenrities to obtain a license from the Com-
misaion, and forbida them to deal in any
other than approved securities, or to trans-
Kt business ou any other plan than that
act forth in the atatemenu and papers
which thiy have filed with such Commlseion.
[Ed. Kote.— For other cams, sm ConBUtutlaoal
Law, CMt. DLi- II m, W. Deo. Dl«. «=tMa).]
CoTfsnTunoNAL Law *=240a)— HJquai.
PBoncnoif 01 tb« Laws— "Blux Sky"
Law.
S. There ia no denial of the equal pro-
taction of the laws In ths esemption of ae-
cxirities wUeh are listed in any standard
manual of information approved by the
State Securities Commission, which was
made by Uieh. Pub. Acta 1916, Act No. 46,
forbidding (with certain azcentions and
exemptions) the dealing in, or the sale and
disposition of, corporate or quasi corporate
securities without the approval of that
CommiBsion, nor in the proviaiona of tliat
statute which empower tiis Commission to
call for additional information other than
that contained in the manuals, and, pending
the filing of such information, to suspend
the sale of such aecurities, and to suspend,
either temporarily or permanently, the sale
of any aecurities listed ia such manuals
after a. bearing upon notice, if the Commis-
sion shall find that the sale of such securi-
ties will work a fraud upon purchasers.
tBfl. Note.— For other casae, we Conmtltatlonsl
JSwilM °"' W «W. 8M, «B7, 898; Dsa. Dl«.
CoHsnTunoKAi, Law ^=>2Q6(1) Due
Pkocebs of Law— Conraauno Axbitba-
■T PowEB OH Statk OomosfiioH— "Blct
Sky" Law,
S. Tlie pursuit of a lawful buainesa was
not made the subject ot arbitrary executive
discretion, contrary to U. S, Const. 14th
Amend., 1^ the provisions of Mich. Pub.
Acts leiB, Act No. 40, which forbid [with
certain excepUons and exemptions) the sale
of corporate or quasi coiporate securities
that have not first received the approval of
the State Securitiea Commission, obtainable
only after certain prescribed data have been
filed with the Commiaaion, and require deal-
ers in such securities to obtain a license
from the Commission, and forbid them to
deal in any other than approved securities,
or to transact business on any other plan
than that aet forth in the statements and
papers which they have filed with aueh
Comniaaion, alnce there Is a presumptiMI
against wanton action by the Commisdon,
and it there should be such disregard of
dn^ a remedy In the courts is expressly
given, and if it were not given it would
necessarily be implied.
[Bd. Nots.— For other caaea, m* Constitutional
Law, Cent. Die- H HI. HI; I>«o- DK- ^jMtCU.]
Statutkb «=»1Z1(1)— Kxfrebsioh or Sox-
noT iH TrrLB— "Bluk Skt" Law,
4. The title, "An Aot to Prevent Fraud
In the Sale and Diapoiltlon of Stocks,
Bonds, or Other Securities Sold or Offered
for Sale," etc., aufBciently Indicatea the
contents of M[ch. Pub. Acts 1915, Act No.
48, which forbida (with certain exceptions
and exemptions) the sale ot corporate or
quasi corporate securities that have not first
received the approval of the State Securities
Commission, obtainable only after certain
prescribed data have been filed with tha
Commission, and requires dealers in such
securitiea to obtain a llaense from the Com-
mission, and forbida them to deal in any
other than approved securities, or to trans-
act bustneas on any other plan than that
set forth in the statements and papers whMi
they have filed with such Commission.
EBd. Note— For Mber cases, us BUtutH. OHt
DlK- II IM. ITt; I>to. DIf. SsUlCUJ
4s9rar other eaaaa se
le topic * KBT-NUHBBR la all Sar-Nunibared DUssIa ft ladar
-.gic
Z7 SUPBEME COCTBT REPOBTER.
Ooi. Tebii,
CoicuEBCE <8=»10 — State BsOTTULTioEt—
"Blux Skt" Law— Cokobessiohal In-
6. Until CongreHB acts the etate !■ free
to impose auch an iucideat&I or iudireat
burdcD on iateratate coimnerte as may re-
sult from the provisions of Uich. Pub. Acts
lOlE, Act No. 46, which forbid (with cer-
tain exceptions and exemptlonB) tjie sals or
dispoBition of corporate or quasi corporate
securities withia the state without state
sanction.
[Bd. Note,— For otbcr cues. Me Ceminerca,
Cent. Die. t <: Deo. Dig. iS=3lD.l
[No. 413.J
Argued October IS and IT, 1018. Decided
January 22, 1017.
APPEAL from the District Court of tha
United States for the EaEtem District
«f Michigan to review a decree enjoining
the enforcement ot the so-called "Blue Sky"
law of that state. Beveraed and remanded
for further proceedings.
6e» same ease below, 228 Fed. SD5.
g Statement by Mr. Justice HcKenna.
* "The question in the case is the validity
of the Blue Sky Law (using this deaipa-
tion for convenience) of the state of Michi-
gan. The law is almost identical with
that of South Dakota, which is the sub-
ject of the decision in No. 383 [242 U. B.
5M, 61 L. efl. 493, 37 Sup. a. Rep. 224].
The pleaJinga are elaborate and practically
defy synopsis. There are direct complaic
and intervening complainants, exprei
the grievances of dealers in the state and
outside of the state, and of persons who
would like to be dealers in the state, but
■re deterred, they allege, by the expense of
the undertaking. The law, therefore. Is
useiled from all points and in all aspects.
Tlie original bill includes in it as parties
eorpo rations, individuals, copartnerahips,
residents, and citizens ot di£Ferent states,
all engaged in the investment banking busi-
ness and in the business of buying and
■elling stocks, bonds, and other securities,
and offering tiiem for sale in Michignn, and
who have contracted from time to time to
aell such securities for the owners thereof
and for the issuers thereof. Th«y have
expended large suma of money in advertis-
ing their business and have a valuable good
will and an extenaive clientele, and have
acquired valuable information as to the con'
duct ot their business and as to the names
and addresses of persons, Arms, and corpo-
rations who buy tha designated securities
t in Michignn. They send into the sUU thei
f agents and employees, who there*soltcit oi
ders for tlie securities and transmit such
orders to complainants, at Chicago, Illi-
aois, which orders are accepted, and Uie
securities so purchased are transmitted to
Michigan. Their representations of the
securities are true representations, they
allege, and that they have been solicited
to sell and have contracted to sell them,
but have been informed that they cannot
be permitted to sell them without complying
with the Uichigan statute.
The various provisions of the statute are
set out, with details as to the manner of
its operation ; the irrelevancy of it is assert-
ed, the useless labor of it,—in some cases
the impossibility of it, — and in other cases
its unreasonableness i and it is further
asserted that its exaction of matters of con-
fidence and its requirements invade and
destroy property rights, curtail freedom
of contract, and otherwise seriously damage
complainants' business and property. All
of this is alleged with industrious and
elaborate detail
The other charges of invalidity against
the act are: (I) It is in violation of the
Constitution ot Michigan, which provides
that no law shall embrace more than one
object, which shall be expressed in its title,
with specifications. (2) It offends against
the 14th Amendment of the Ckmstitution of
the United States, especial stress being put
upon the exceptions of the statute, which
are asserted to be discriminations in viola-
tion of the equal protection of the laws
guaranteed by that Amendment. (3) It
imposes a burden on interstate commerce in
violation of S 8, article 1, of the Constitu-
tion of the United States.
Under the latter objection there Is elabo-
rate specification of particulars which
exiiibit, with the specifications under the
other objections, every shade of meaning,
purpose, or effect that ingenuity can ascribe
to the statute, — indeed, every provision of
the statute is reviewed and charged with
some form of illegality. However, the
attacks may be condensed in the cliarge
that the statute is a violation ot the pro-.^
hibitions of the 14th 'Amendment ot state^
action because of its restrictions or prolii-*
bitions of a lawful business; and a violation
of the commerce clause of the Constitution
because the designated securities are articles
of commerce, and, as such, entitled to un-
molested transportation between the states,
and that the statute is a direct burden
upon them in many cases, pruhibitive in
others, — with the addition that the statute
delegates legislative power to the commis-
sion crested by it, inflicts cruel and unusual
punishments, and imposes penalties whose
object is to deter from a test of its validity;
and indicts cruel and unusual punishments,
in violation of the Constitution of Michigan.
It is also alleged that in a suit entitled
Alabama t N. 0. Transp. Co. v. Doyle, la
11 Kar-Numbnrsd Dlgttti ft InSaiN
.gic
i9ie.
MERRICK T. HALSEY & CO
E2I>
th« dUtrlct court for tlie eutern district
of Mictigau, the itatute, of which the itat-
ute under review la an uaendmeat, was
declared imcoQetitutioDsl and void, tbe opin-
ion in which case ia reported in 210 Jed.
173, and that the statute there pasaed upoa
fa almilar in all illegal particulara to tlie
present atatute. A reniedf in equitj ie
aaaerted becauae of alleged irreparable in-
jury and on account of the penalties Ini'
posed, and an Injunction ii prayed against
the enforcement of the act.
At the aame time that the bill outlined
above waa filed another bill vaa filed by
the Weil Fibre Container Corporation, a
corporation of South Dakota, whose pur-
pose ia to manufacture, buy, and sell paper
or fiber containers and similar products. It
ia not an investment company, but a manu-
facturing company. Its securities are not
Bupervised or regulated by OJiy public aerv-
ice board or commisaion, and IJie proceeds
fi-om the sale of Its stocks and securities
•xe employed in the prosecution of its busi-
ness, and are not otlierwise invested. The
corporation la duly authorised to do busi-
ness in Micliigan; its stock is valuable, and
it has offered it for sole in MicJiigan di-
grectly and through agents and employees;
■ and it is alleged that the *repre8entations
made in regard thereto are true. It has
solicited various persons in Michigan to
offer it* stock for sale, and they have In-
formed it that its stocks cannot be sold
in Michigan unless full compliance ia made
with the statute.
The bill attacks the statute for the illegal-
ities detailed in the other bill, and, con-
■Idering that the only remedy is In equity,
prays an injunction against the enforcement
of the act.
A restraining order was Issued entitled
in both cases. Subsequently, on September
IS, ]91fi, a partnership, organized and
existing under the laws of the state of Ohio,
having the name of Otis k Company, and
oompoaed of eitixens of Colorado and Ohio,
filed a petition in intervention.
Tliat company is a dealer in bonds and
other securities in Michigan, and such bonds
and securities are of the kind which the
statute of the state regulates. It also
aends agents Into tlie state to eoliolt orders
for such securities and transmits orders to
Its offices in Cleveland, Ohio.
It asserts Identity of situation with the
complainants in the other bills, and adopts
their charges against the statute, and prays
to be mode a party complainant to tiie
cause, and for the benefit of the restraining
order issued therein, and for such other
relief as the court may deem meet.
A demurrer waa filed to the bills and a
motion made for injunction. The company
waa given the benefit of the restraining
order and a like benefit was given to all
others who might petition to intervene, tha
restraining order to continue until the dis-
position of the motion which had been made
for injunction. The injunction was subse-
quently granted (228 Fed. 805), snd to re-
view it this appeal is prosecuted.
There was a partnership under the name
of Bemick, Hodges, k Company, Eemlck
and Hodges being residents of New York
and March a resident of New Jersey, hav-
ing their office at the city of New York and]?
engaged In buying*and selling atocka, boads,|p
and other securities. Their business ia
known as investment banking and is car-
ried on in New York and by their agents
there and elsewhere, and by mail with varl-
oiu corporations, associations, and persons
throughout the United States and In tha
state of Michigan. Hiey own many of such
securities which they have offered and oro
offering for sale, and desire to continue to
offer to their customers in the state of
Michigan. They have no place of buaineas
in the state and are not at the present time
sending agents into the state, but are en-
deavoring to sell securities there; bnt the
volume of such business is not sufiicient to
justify them to attempt to comply with tha
statute of the state, and the statute. If
enforced against them, will have the effect
of preventing them from making any fur-
ther offers in the state, and from attempt-
ing to establish or develop any business
therein, and they are excluded thereby from
interstate commerce in such securities which
they have heretofore enjoyed.
They allege themselves to be in like situ-
ation wiUi complain unts and adopt the alle-
gations of complainants' bills, and especial-
ly complain of the penalties which may b«
enforced against them and their agents, and
pray to come into the suit as partiea.
The causes were subsequently consolidat-
ed by a nunc pro tune order.
The injunctions restrained the defendants
from enforcing the act and from beginning
or instituting any action, civil or criminal,
against complainants, "based upon or pur-
suant to anch act"
Mr. Grant Fellows, Attorney General
of Michigan, In propria persona, for ap-
Messrs. George W. Wlckersham, Rob-
ert R. Reed, Hal H. Smith, and Charles
K. Allen for appellees.
Mr. George Cosaon, Attorney General of
Iowa, and Mr. Walter C. Owen, Attorney
General of Wisconsin, as amici euria.
,A_.OOglC
«s»
37 SUPBBME COUET REPORTER.
Oct. Tbii,
■ • Mr. Justice McKeuna, after stating the
case as above, delivered the opinioo of tlie
Tbe statute of Michigan Is the same ae
the statutes of South Dakota and Ohio, and
our tcply to the attacks made upon it might
be rested upon our discussion of those stat-
utes.
But in the present case, as we have said
elsewhere, the arguments, while fundamen-
tallf the same, are in some respects more
circumstantial. All the supposed conse-
quences of the law are dilated upon — where-
in, as it is contended, it meddles with or
burdens a business asserted to be legitimate,
wherein it prohibits or gives power to an
executive officer to arbitrarilj prohibit bucL
business, and wherein it confuses legislative
and executive powers, and in these wajs
and other wajs, as it it further contended,
transgresses the Constitution of the United
States. Many eases are cited to support
the coDtentions and publicists are avouched
to the same end. In our discussion we can-
not be as elaborate in details si counsel,
nor is it necesBary. There are certain out-
side propositions upon which all others maj
be regarded as dependent. These proposi-
tions were considered in the other cases
and we need now onlj supplement what was
there said.
The appellants Justifj the law hj the po-
lice power of the state and its comprehen-
X live reach. Replying, appellees urge against
rit the limitations of the 14th 'Amendment
and the national supremacy over interstate
eommeree; and applying the 14th Amend-
ment, ass^trt in many ways {we select one
and upon it the changes are rung) that the
Issue of the securities "is In effect tbe mak-
ing of contracts 'proper and necessary and
essential' to the pursuit of lawful liveli-
hoods or avocations," and cannot be "made
the subject of discretionary executive li-
oense," controlling thereby individual trans-
aotions.
The assertion eneonnten immediately
many cases in which laws have been sue-
tained limiting the making of contracts and
regulating business through executive sgen-
cies and necessarily controlling individual
transactions. Indeed, there are too many
for even marginal citation. They, however,
are attempted to be distinguished or re-
stricted. It is said by connHsl that they
"deal with administrative control over mat-
ters of public right or public grant or exist'
ing at public sufferance." And it Is ad'
mitted that "the legislature may deal dras-
tically with many matters of private right,
to prevent or redress individual wrongs."
It is further admitted that "drsstic reme-
dies may be prescribed by law [italics ours]
for evils deemed by the lq;islatura to re-
quire than." Excluding the propo8!"in so
expressed from ai^Iication to the ^Tichl-
gan law, It is insisted that the buiiHp.iB to
which it applies "neither requires nor justi-
), nor is susceptible of, administrative
executive control for the purpose ol pre-
venting a wrong or injury by one Individual
to another." Of course, the implication. If
not the direct assertion, is that the busi-
of dealing in securities has not that
character. Neither the principle nor the
assertion is very tangible. The flrst inci-
dence of any evil from a business or con-
duct is upon some individual, and through
the individual (let us say individuals, for
necessarily there are more than one) upon
the community; nor can it be affected in
any other way. Besides, it Is for the state
to judge in such circumstances, and theac
judgment and Its •execution would have to*
be pftlpa.bly arbitrary to justify the inter-
ference of the courta Counsel, indeed,
frankly concedes the evil of "get-rich -quick"
schemes and quotes the banking commis-
sioner of the state of Kansas for the state-
ment that the "Blue Sky" law of that state
had saved the people of the state $8,000,000
since Its enactment, and that between 1,400
and 1,600 companies had been investigated
by the deportment and less than 400 of the
numljer granted permits to sell securities
in the state. Counsel also quotee tlie cod-
Udence of the commissioner In tbe efficacy
of the law, and that it will "eveutuallj re-
sult in the refutation and supervision ot all
kinds of companies in the same manner
as banks are now regulated and supervised."
Against this statement, however, counsel
cites the view expressed by the British
Board of Trade of the Inexpediency of on
official investigation "into the soundness,
good faith, and prospects" of companies.
Upon this difference in views we are not
c^led upon to express an opinion, for, aa
we have said, the judgment is for the state
to moke, and In the belief of evils and the
necessity for their remedy and the manner
of tbeir remedy the state has determined
that the business of dealing In securities
shall have administrative supervision, and
twenty-six states have expressed like jndg-
Mucb may be said a^inst these Judg-
ments, as much has been said, and decieions
of the courts have I>een cited against them.
We are not insensible to the strength at
both, but we cannot stay the hands of gov-
ernment upon a consideration of the Im-
policy of Its legislation. Every new regula-
tion of business or conduct meets challenge,
and, of course, must sustain itself against
challenge and the limitations that the Con-
stitution imposes. But it is to be borne in
mind that the policy of » state and ita «x-
,A_^OOglC
1S1«.
MERRICK r. HALCTT t CO.
sai
praHion in lawi miut nrj with circmn
■turns. And thii Mpaelt^ (or growth and
Jg adaptation we (aid, throoKli Mr. Juttice
f Matthews, In Hurtado t. California, 110 U.
B. 616, 530, 28 L. ed. 232, 237, 4 Snp. Ct.
Sep. Ill, fi02, ia the "peculiar boaat and ez-
eelleDGOof theoommon law." It may bo that
conBtitutional law mult have a more fixed
quality than enatoniary law, or, ai wai laid
by Mr. Juetioe Brewer, In Muller t. Oregon,
S08 U. S. 412, 42D, 02 L. ed. 6B1, 6&6, ES
Sup. Ct. Rep. 324, IS Ann. Caa. tOT, that
"it ia the peculiar value of a written
■titntion tliat it places in unchanging form
limitation! upon Itgislative action." This,
however, doe* not mean that the form ie m
rigid aa to make government inadequate to
the changing condition* of life, preventing
its exertion except by amendmenta to the
organic law. We may feel the difUcuitles
of the DOW applications which are invoked,
the strength of the contentions and the
guments which snpport or oppose them,
but OUT surest recourse is in what has lieen
done, and in the pending case we have
analogies If not exact examples to guidi
ua So guided and so informed, we think
the statute under review is within the
power of the state. It burdens honest busi-
ness, it is true, but burdens it only that,
under its forms, dishonest business may not
be done. This manifestly cannot be aci
plished by mere declaration) there must t»e
eondittons imposed and provieicai made for
their performance. Expense may thereby
bo caused and inconvenience, but to arrest
the power of the state by such considera-
tions would make it impotent to discharge
ita function. It costs something to b« gov-
But counsel aay that the conditions im-
posed either are not adequate to such pur-
pose or transcend what Is necessary for it.
Indeed, it Is assevted that the statute has
not that purpose, "but rather to prevent
flnaneial loss." The asBcrtion is against the
declaration of the title of the atatute and
against the words of its body, and cannot
be justified by assigning to it the purpose
of the law which it amends; nor csn ws
assent to the contention that such purpose
must be inferred from | S or other provl-
^ sions which point, it is said, to ths prob-
« ability of flnsncial loss, not fraud. The act
• must be considered from its declared'pur-
pose and ae a whole, not from detached por-
tions which can be easily overwhelmed when
assigned a false eharaoter.
It ia, however, said that, assuming the
•tatuto have such purpose, the fraud re-
ferred to is not a proper object for the
police power, and it is asked, "Can the oc-
casional fraud, that fraud which arises in
the individual transaction, justify » law
regulating the business of which tlio single
transaetion is a partT Or must It be fraud
which is incidental to the business, — a fraud
which the business itself, from its character
and the manner in whioh it is generally
conducted. Invites and encouragesl" And,
quoting from People ex rel. l^roler v.
Warden, 167 N. T. 116, 48 L.B,A. 2S4, 03
Am. St. Rep. 7C3, 61 N. E. 1006: "It la
a novel legislation, indeed, that attempts
to take away from all ths people the right
to conduct a business because there ars
wrongdoers in It." To the latter we say
ths right to do business is not taken away;
the other we liave already answered and
need only add that we cannot, upon such
considerations, limit the power of the state.
The state must adopt ita legielation to evils
as they appear, and Is not helpless because
o( their forms.
Engel r. O'Malley, 219 U. 8. 128, B5 L.
ed. 128, 11 Sup. Ct. Rep. IBO, was not do-
cided because fraud was incidental to the
business of banking by individuals or part-
nerships, but because fraud could be prac-
tised in it, and that hence it could be li-
censed. Nor was It decided In Allen v.
Riley, 203 U. S. 347, SI L. ed. 218, 27 Sup.
Ct. Rep. 95, 8 Ann. Gas. 137, that the
transfer Of patent rights wss of itself il-
legal, or that any particular transfer would
be deceptive, but that some transfers might
be; and so a statute of Kansas which re-
quired any person selling or offering to sell
such rights to conform to certain require-
ments was dsclared valid. Nor did we hesi-
tate to bold valid the regulation of the busi-
ness of employment agencies. It was a law-
ful business and would not in instances be
injuriously conducted; but in instances it
might be, and because it might be, with
injurious consequences, its regulation wasS
provided. This court 'sustained the rcgu->
lation and the condition that it was to be
enforced according to tha legal discretion
of a commissioner. Braiee v. Michigan, S41
U. S. S40, SO L. ed. 1034, 30 Sup. Ct. Rep.
COl. See also Brodnax v. Missouri, 210 U.
8. 28S, G6 L. ed. 21B, 31 Sop. Ct. Rep. S3S.
Other cases might b« eited of simitar im-
port.
It may be that there are better wsys ta
meet the evils at which the statute is direct-
ed, and counsel have felt it incumbent upon
them to suggest a better way. We can only
reply that it is not our function to decide
between measures, and, upon a cranparison
of their utility and adequacy, determine
their legality.
Hie contentions upon the discriminations
of the statute we rest upon the comment
made on like contentions in the other cases.
A special emphasis, however. Is put by Mp-
pellets upon the adoption by the Commis-
,A_.OOglC
282 «7 SUPfiEMB COtffiT EEPORTER. Dot. Ttaif,
•ion of "K>-GBlIed 'aUndud muiUBlg of in- . Uiehiguk Tha objection ie luUnable and
T«ttment.' " Tha adoption of tiieta man- ] does not call for particular notice.
Ual8, it is Baid, la justifled by the Commi*- i Answer to the contention that the statut«
•ion under i 3, which anumeratee the se-
curities that are exempt from the lair,
among others, "(h) securitica which are
listed in any standard manual of informa-
tion approved by said Comtnission." The
provision ia attacked as " 'the Michigan
idea' of providing an caay way out of the
act at all timet." And further: 'It ii not
fo much an exemption of existing standard
■ecuritiea as a working eiemption available
for new offerings t« be listed aa iisued."
And again: "It ia to be a permaoent
meant ol exempting new tecuritiea from
till act." Even this, it is asserted, ia not
all of the power that ia given for discrimi-
nation, for it is pointed out that tha Com-
mittion may call for additional information
than that contained in the manual*, and
may, pending tiis filing of tha information,
•uapend the sale of the securities, and may
also suspend, either temporarily or perma-
nently, the sale of any securities listed in
such manuals after a hearing upon notice,
If the Commission shall find that the sale
of such securities would work a fraud upon
• the purchasers thereof.
P *Tba exemption and the provision an de-
clared to be unconstitutional, and it aeems
to be intimated that in the flexibility of
what ia considered their subterfuge a vi-
cious character is not only given to the act,
but constituted it* inducement, and there-
fore brings the act down with it, tor with-
out it. It is insisted, the statute would
not have been enacted. We cannot agree
either to the characterization of the pro-
Tision or its effect. The first would attrib-
ute a sinister purpose to the legislation of
which there is no indication; the second
would give too much importance to a inb-
ordinste provision, one that la only ancil-
lary or convenient to the main purpose.
The contentions based on the exemption
and provision are a part of that which ac-
cuses the law of conferring arbitrary dla-
eretion upon the Commission, and commit-
ting to its will the existence or extinction
of the business. The accusation Is formi-
dable in words, but it ia the some that has
been made many times. It is answered by
the comment and the cases cited in the
opinion in the other cases. Besides, we re-
peat, there is a presumption against wanton
action by tha Commission, and If there
should be such disregard of duty, a remedy
in the courts is explicitly given, and if it
were not given it would necessarily be im-
Objection is made that the title of the act
does not indicate it* provisions, and that
the act hence violates the Constitution of
an Interference with interstate ci
wa leave to our opinion in Kos. «8, 430,
and 440 [242 U. S. 53!(. 61 L. ed. 4S0, 37
Sup. Ct. Hep. 217].
Decree reversed and cause remanded for
further proceedings in conformity with thii
opinion.
Ur. Justice Holteynolda diaaenta.
oa V. a. t»U
VICTOR HERBERT, Harry B. Smith, et
aL, Petitioners,
SHAMLET COMPANY. (No. 427.)
JOHN CHURCH COMPANY, Petitioner,
CopTuaBTB «S360— In Uosioai. OouPon-
TlOlt — jRFBIHaEMKNT — "PlBTOIMAKCE
rOB PROFTT."
Hie performance In a restaurant or
botel dining room, by persons employed by
the proprietor, of a copyrighted musical
compositions, for the enbtrtainment of pa*
trona, without eharce for admission to hear
it, infringes tha exclusive right of tha owner
of the copyright, under the Act of Maroh
4, 1B09 {36 SUt at L. 1075, chap. 320,
Comp. SUt. 1013, S 0517), § 1 (a), to per-
form tha work publicly for profit
IIKL_Note.-Jor^otliar_ oa»Bfc_»B» Oaprrlihta,
Cant. Die. i St; Deo. Dla. «=3M.]
[Noa. 427 and 433.]
States Circuit Court of Appeals for the
Second Circuit to review a decree which af-
firmed a decree of tha District Court for
the Southern District of New York, dis-
missing the bill in a suit for the alleged
infringement of k copyright. Reversed;
Also
M WRIT of Certiorari to the United
States Circuit Court of Appeals for
the Second Circuit to review a decree which,
on a second appeal, affirmed a decree of the
District Court for tha Southern District of
New York, dismissing the bill in a suit for
the alleged infringement of a copyrights
Reversed.
See eame case below. In No. 427, 14S a
C. A. 400, 220 Fed. S40; In No. 433, on
first appeal, 136 C. 0. A. S30, 221 Fed. 220,
0".
n all Ker-Hombered Dlseats * Indeiw
L',oiii,j-,<^-.OOglC
Ul«.
UNITED STATES t. AMERICAN-ASIATIC B. 6. CO.
233
«B Mcond appeal, 142 CCA. 667, 229 Jfei.
1021.
Th« facte are itated in the opinion.
HeearB. Nathnu Bnrkan and William J.
Hugliea for petitioner in No. 427.
Messrs. Levi Cooke, Abraham S. Gilbert,
and Francis Gilbert for reapondent in No.
427.
Messrs. IiouIh J. Torhana, Mages H.
Oraseman, and William Grossman for peti-
tioner in No. 433.
Ueuri. Oharlea J. Campbell, Frank A.
E. Boland, and Levi Cooke for reepondente
^In Up. 433.
F *Mt. Justice Holmea dellTered the opin-
ion of the court:
These two casea present the same ques-
tion: ffhether the performanea of a copy-
righted musical composition in a restaurant
or hotel irithout charge for admission to
hear it infringes the exclusive right of the
owner of the copyriglit to perform the work
publiclj for proBt. Act of March 4, IQOS,
chap. 320, g 1 (e), 36 Stat, at L. 107S,
Comp. Stat. 1913, | 9617. The last-num>
Iwred case was decided before the other and
mair be stated first. Hie plaintitl owns the
oopjright of a Ijric comedj in which is a
S march called "From Maine to Oregon." It
t took out a'scparate copyriglit for tlie march
and publislied it separately. The defendant
hotel company caused this march to be pet-
formed in tlie dining room of the Vander-
biit Hotel for the entertainment of guests
during meal timea, in the way now common,
1^ an orchestra employed and paid by the
company. It was held by the circuit court
of appeals, reversing the decision of the dis-
trict court, that this was not a performance
for profit within tlie meaning of the act.
136 C. C. A. 039, 221 Fed. 229.
The other case ie similar so far aa tlie
present discussion is concerned. The plain-
tiffs were the composers and owners of a
comic opera entitled "Sweethearts," contain-
ing a song of the same title aa a leading
feature in the performance. Tliere Is a
copyright for the opera and also one for
the song, which is published and sold
aeparateiy. This the Slianley Company
caused to be sung by professional singers,
Upon a stage in its restaurant on Broadway,
accompanied by an orchestra. Tlie district
court, after holding that by the separate
publication the plaintiffs' rights were limit-
ed to those conferred by the separate copy-
right,— a matter that it will not be neces-
sary to discuss, — followed the decision in
ISe C. C. A. 639, 221 Fed. 229, as to pub-
lic performsnce for profit. 222 Fed. 344.
"n* decree was aHirmi'd by the circuit court
«f appeals. 143 C. 0. A. 460, 229 Fed. 340.
It the rights under the copyriglit are in-
fringed only by a performance where money
is taken at the door, they are very imper-
fectly protected. Performances not different
in kind from those of the detendante could
be given that might compete with and even
destroy the success of the monopoly that
the law intends tha plaintiffs to have. II
Is enough to say that there is no need to
construe the statute so narrowly. The de-
fendants' performances are not eleemosy-
nary. Hey are part of a total for which
the public pays, and the fact that the prica^
of the whole is attributed to a particulars
item which those present are>expected to*
order is not important. It is true that the
music la not the sole object, but neither
is the food, which probably could be got
cheaper elsewhere. Ha object is a repast
in surroundings that to people having limit-
ed powers of conversation, or disliking the
rival noise, give a luxurious pleasure not
to be had from eating a silent meal. If
music did not pay, it would be given up. It
it pays, it pays out of the public's pocket.
Whether It pays or not, the purpose of em-
ploying it is profit, and that ia enough.
DeU'ea reversed.
(HI U. 8. »TI
UNITED STATES, Appt.
AMERICAX-ASIATIC STEAMSHIP COU-
TANY et aL (No. 138.)
UNITED STATES, Appt,
PRINCE LINE. Limited, Paul F. Gerhard,
Charles Z. Gerhard, Francia J, Zinuner-
man, et al. (No. 163.)
Appeal and Elaxos 4=>ie— Disiobsal --
Moot Cass.
1. The moot character of the contro-
versy, by reason of the existence of the
European War, prevents the Federal Su-
preme Court from deciding on the merlte
an appeal from a decree preaenting the ques-
tion whether the provisions of tha Antt<
trust Act of July 2, 1890 (26 SUt. at L.
209, chap. 647, Comp. SUt. 1913, g S820),
are violated by a combination of stasm-
Bhlp companies to monopolize ocean car-
riage.
[Ed. Note.— Tor other c>Mi, Ms Appeal and Br-
rar. Cent. Dlf. l| C3-8D : Dec. Dig. ftsU.J
Appeal and Eebob 9=>1176(6) — Jtjdgjikrt
— ItBVEBSIHO WlTliUUT PkEJDDIQK.
2. Tlie Federal Supreme Court, instead
of dismissing an appeal from a decree of a
Federal district court adverse to the gov-
ernment's contention that a combination of
steamship companies to raonopolixe ocean
carriage violates the Anti-trust Act of Jnlj
2. 18U0 (26 Stnt. at L. 209, chap. 647. Cotnp.
SUt. 1913, 3 8820), where the controversy
has become a moot one in view of Uie Eur^
M SM earn* topic A KBT-NUHBER m aU Ker-Numbsr«d DUasts * Indw
iglC
Z31
87 SUPREME COURT EEPORTEB.
Oct. Term,
pean War, will reverse the decree and .,.
maud the oaaa witb directions to dismiss tlie
bill witliout prejudice to the ri^t of the
goTemment in the fntare to ans&il a,nj
actual contract or combination dr — ' '
offend against the Anti-trust Act
[Bd. Nat*.— Tor ath«r cuaa, Me Appsal utd Bi^
Tor, Cent. Dl(. II U», 4GH: Dec Dig. «=3UTtl(S).]
[Nob. 138 and 169.]
Submitted December 2, 1916. Decided Janu-
ary 22, 1917.
TWO APPEALS from the District Court
of the United SUtei for the Southern
District of New York to review decrees
grantiDg a portion only of the relief sought
by the United States in a suit under the
Anti-trust Act against ocean carrii
versed and remanded with directions to
dismisB the bills without prejudice.
See same case below, 220 Fed. 230.
Solicitor General Davis and Mr. Carroll
G. Todd filed a motion to reverse and ig-
mand with instructions to dismiss the peti-
tion without prejudice^
No counsel opposed.
Iilcmoraudum opinion hj Ifr. Chief Jus-
tice Wtilte, by direction of the court:
2 The United States sued to restrain the
gsarrying out of agreements between British,
• German, and American gteamship compa-
nies who were defendants, on the ground that
thcj WK'e in violaticHi of the Anti-trust
Act of July 2, 1800 [26 Stat, at L. 209,
chap. S47,Comp. Stat. 1913, gSSSO). Over-
ruling the contention that that act did not
relate to eontracts concerning ocean car-
riage, the court entered decrees against the
United Statea In both eases, dismissing the
bills for want of equity, on the ground that
the assailed agreements were not in conflict
with the Anti-tnut Act except aa to a
particalar dlKrimination found to have
been practised in one of the cases which
was provided against. S20 Fed. 230. At
the time this action was taken by the court
below, as the result of the European War,
the assailed agreements had been dissolved
and the questions raised by the hills were
therefore purely moot, as directly decided
to be the case as to a similar situation in
United States v. Hamburg Amerilcanische
Paclietfahrt-AcUen Geselisohaft, 239 U. S.
466, 60 U ed. 387, SB Sup. Ct. Rep. 212.
Under these circumstances the request
now mads by the United Statea that the
doctrine announced in the Eamhurg-Ameri-
kanische Case be applied to both of thesa
cases, and the relief afforded in that case
be awarded, ii well founded and must be
granted. It follows, therefore, that the de-
crees below must be reversed and the cases
be remanded to the court below with direo-
tions to dismln Uie bllla without prejudlcs
to the right of the United States in the fu<
ture to assail any actual eontract or oombi*
nation deemed to offend against the AnH-
trust Act.
And it is so ordered.
(Ml V. S. «0S)
CHESAPEAKE t OHIO RAILWAY COM.
PANY, Plff. in Err,
PUBLIC SERVICE COMMISSION OF THE
STATE OF WEST VIRGINIA.
CosBTiTUTioNAL LAW «=>24I, 287 — Due
Pbocess or Law— Equal Pbotbotion of
THE Laws— Obdebihq PAsamsKB Sbrv-
ICK OR Bkakch LinE.
An order of the State Public Service
Commission requiring the installation aiid
maintenance of a passenger service upon a
branch railway line which haa hitherto been
used for freight traffic only ia not repug-
nant to the due process of law and equal
protection of the laws clauses of U. S.
Const, 14th Amend., although the passenger
service so ordered, if separately eonsidered,
may entail some pecuniary loss, where, un-
der the local law (W. Va. AcU 1881, chap.
17, ES 60, 71, Code 1913, chap. M, i% 2083,
2996), such branch line was, In legal con-
templation, devoted to the transportation
of passengers as welt as of freight, even
though actually used only for the latter,
and it does not appear either that the rail-
way company's intrastate passenger busl-
"— will not yield a reasonable return if
new service is installed, or that the
traffic, freight and passenger, passing over
the branch line to and from points on the
main line, will not do ao.
tEd. Nets.— Far otber oasM, sea Conitltutlanal
Law. Csnt Die H TOO, W. nt-tH; Deo. Dla.
«=>H1, ST.l
[No. 64.1
Argued and submitted November I, lOlS.
Decided February 5, 1017.
IN ERROR to the Supreme Court of Ap-
peals of the State of West Virginia to
review a decree refusing to suspend and
vacate an order of the Public Service Com-
mission of that state, requiring the Instal-
lation and maintenance of a passenger serv-
ice upon a branch railway line. Affirmed.
See same case below, 75 W. Va. 100,
L.RjI.— , — , 88 S. E. 288.
The facts are stated In the opinion.
Measrs. F. B. Enslow end H. Fitzpab-
rick for plaintiff In error.
Messrs. 8. B. Avla and F. O. Plfer for
defendant in error.
'Mr. Justice Van Devanter delivered tha?
opinion of the court:
This waa a proceeding nnder the laws ol
I* topic ft KBT-NUUBBEt li
11 Kar-Nombersd Dlsasts * Indi
AS'S^gic
1»1«.
CHESAFICAES ft O. B. 00. *. PUBUC SBBVICE COMUISSIOH.
W«at Vlrsinlk (Acta 1913, cliap. 0, j 1')
to nupeod uid TBcat« an order of the Fub-
Ue ServiM Cominiuion of that state, re-
quiring the Chesapeake ft Ohio Railway
Company to iuatall and maintain upon a
branch line In that state a paaaenger wrr-
ice consisting of two paasenger traiua daily
each waj. Hie order was assailed on mt-
eral grounds, one of these being that it
was TioLative of the due process and equal
protection clauses of the 14th Amendment
to the Constitution of the United States.
The aupreme court of appeals of the state
Sheld that none of the objections was tena-
fble {TB'W. Va- 100, LJIJ..— , — , S3 8.
EL 2S6), and the railway company brought
the case here.
In so far as the deolsion tamed upon
qaeations of state law it is controlling, our
power of review being reetricted to the Fed-
eral question. Lindsley t. Natural Car-
bcnio Oas Co. 2£0 n. B. 01, 76, 56 L. ed.
30*. 376, Ann. Caa. IQISC, 100, 31 Sup.
Ct. Sep. 337.
The order was made after a full hearing
wherein the railway company was permitted
to present all the evidence which It re-
garded M helpful. There was but little
eonSiet in the evidence, and the facts, which
must here be regarded as prored, are these :
The railway company is a Virginia corpo-
ration and owns and operates several lines
of railroad In West Virginia, indnding a
main line along the Canawha river. This
line eoneists of two tracks, one on the north
side of the river for west-bound trains and
one on the south side for trains that are
east-bound. Among the stations on the
north side is one called Hawks Neat, and
acroas the river la another called Uae-
Dougal, the two being eonneeted by a rail-
road bridge. The main line and these
at«ti«sis are used tor both freight and pas-
senger traffic. The company also oirns and
operates a standard gauge branch line ex-
tsoding from MacDovgal and Hawks Neat
to the town of Anated, a IltUe more than
Z miles, and thence another mile to some
extensively operated coal mines. This Is
the branch line to which the order In ques-
tion relates. Ansted has a population of
twelve hundred or more and la the trading
center for a population of six thousand.
The branch line was eonatmcted in 1890,
Mud has been used for freight trafBo onlyi
that is to say, for hauling empty ears to
the coal mines and loaded cars from the
mines to the main line, and for carrying
other freight between the main line and
Anatad. The railway company has « frel^t
•tation at Ansted In change of an agent
and helper, and also maintains a telegraph
service there. There is no other railroad
at tliat plage and the nearest passenger
stations are Hawks Nest and MacDougal.S
In* the year preceding the order the numbeir
of passengers taking the main-line paaacn-
ger trains at these stations was 12,714, and
of this number 90 per cant came from
Ansted, In the same year the shipments
of coal and other freight over the branch
line aggregated £42,280 tons.
From an operating standpoint there is no
serious obstacle to Inatalling upon the
branch line the service which the order re-
quires, but the curves and grades are such
that particular attention must be given to
making the roadbed secure and to providing
suitable devices for controlling the trains.
Isolatedly considered, such a paaaenger serv-
ice would not presently be remunerative,
but wonid entail a pecuniary loss, and how
long this would continue to be true can
only be conjectured. But beyond this, the
elTect from a revenue etandpoint of inatall-
ing such a service is not shown. It does
not appear either that the company's intra-
state passenger business In that state would
not yield a reasonable return, or that the
traffic, freight and paaaenger, passing over
the branch line to and from points on the
main line, would not do so.
In support of its positicm that the order
is essentially unreasonable and arbitrary,
and therefore repugnant to the due process
and equal protection clauses of the 14th
Amendment, the railway company contends
that the order requires a passenger service
to be Installed and maintained upon ths
branch line when that line never has besn
devoted to anything other than the^trana-
portatim of freight, and when ths service
ordered, if separately considered, cannot b«
rendered without pecuniary loss.
It well may be that ths power of regula-
tion whldt ft state possesses over private
property devoted to public use gives no
warrant for requiring that an existing line
of railroad, lawfully devoted to a particular
publlo aae^ sneh as carrying freight, ^all
bs devoted to a further public uae, such as
eanylng passengers (Northern P. S. Co. r.
Nnth Dakota, 230 U. S. BS5, SOS, 6* L. ed.
736, 741, LEJL — , — . P.U.E.IBISO,^.
277, 36 Sup. Ct. B«f>.,429, Ann. Cas. 1SI6A,|
1), but, even If this be so, it has no bear-*
ing on the validity of the order in question.
As the opinion of the state court shows,
the act wherriiy the railwi^ eompany was
granted the ri^t to ocmstruet and operate
the branch line did not leave the company
free to devote It te freight service only or
to passenger service only, but declared that
It should be a pnblie hl^way and "f rw« t»
D,at,z.d-,.'^-.00'^IC
238 87 SUPREME COURT REPORTER. Oct. Tmxm, '
(MS V. a. no)
kU perBoDH (or tli« transportation trf tleir SECOND NATIONAL BANK OF CINCIN-
peisouB and propertj'," subject to tlie pay-
mant of the lawful charges far such trans-
portation. Acta 1881, chap. 17, §§ 80, 71;
Coda 1913, chap. E4, §§ 2BS3, 29BS. True,
the section containing this declaration
■peaks of "railroads" without particularljr
mentioning branch lines, but that it em-
braces the tatter is abowo hy the state
court's opinion, which says that this branch
line, when constructed, "became an integral
part of the extensive Chesapeake &, Ohio
system,, and must be treated and oontrolled
as such, and not merely as a segregated
part of it," Thus, in legal contemplation,
the branch line was devoted to the trans-
portation of passengers aa well as of freight,
even thou^ actually used only for ths lat-
ter. An obligation to use it for both was
imposed by law, and so could not be thrown
off or e.vtinguished by any a«t or omission
of the railway ccHnpany. It follows that
the order, instead of enlarging the public
purpose to which th« line was devoted, does
no more than to prevent a part of that
{iurpose from lieing neglected.
One of the duties of a railroad company
doing business as a common carrier is that
of providing reason nbl; adequate facilities
(or serving the public This duty arises
out of the acceptance and enjoyment of the
powers and privil^es granted by the stat«,
and endures so long as they are retained.
It repreeents a part of what the oompany
undertakes to do in return for them, and
ita performance cannot be avoided' merely
becaoee it will be attended by some pe-
cuniary loss. Atlantic Coast Line R. Co.
T. North Carolina Corp. Commission, 206
I V. B. 1, 28, 61 L. ed. 033, 046, 27 Sup. Ct.
■ Bep. 686, 11 Ann. Gas. 393;* Missouri P.
R. Co. V. Kansas, 216 U. 8. 2SZ, 27S, G4
h. ed. 472, 479, 30 Sup. Ct. Rei*. 330;
Washington ex re!. Oregon R. t Nav. Co.
T. Fairchild, 224 U. S. 610, 529, 68 L. ed.
663, 870. 32 Sup. Ct. Rep. 635; Chicago,
B. A Q. R. Co. V. Railroad Commission,
237 U. S. 220, 220, 59 L. ed. 928, 031,
P.U.R.101SC, 300, 35 Sup. Ct. Rep. 660.
That there will be such a loss is, of course,
a circumstance to be considered in passing
upon the reasons b lenses of the order, but
it is not the only one. The nature and
extent of the carrier's business, its pio-
ductiveness, the character of serviea re-
quired, the public need for it, and its effect
up(Hi the service already being rendered, are
also to be considered. Cases supra. Ap-
plying these criteria to the order In ques-
tion, we think it is not shown to be unrea^
Judgment affirmed.
NATI, OHIO, Plfl. in Err,
CocBTs «=S&2— Ebbob to State Cottbt—
To What Codbt Dibxcted — ElOUEar
State Coubt.
A writ of error directed to the ni<
perior court of Cincinnati, Ohio, must be
dismissed where the judgment of ttiat court
in the caae had been affirmed t^ the ap-
propriate court of appeals of that state,
and the latter court, after a general judg-
ment of affirmance, had ordered "that ■
special mandate be sent to the superior
court of Cincinnati to earr^ this Judgment
into execution." The writ should have
been directed to the court of appeals, as the
highest court in which a Judgment could
be rendered in the case, in view of the re-
fusal of the supreme court of the etat« ta
grant a motion to require the court of ap-
peals to certify its record to the supreme
court tor review,
lEd. Nata.— Far ctbar eases, sea Oonlts, Out,
Dig. U IMS, IMT: Dte. Dig. «s>3«.]
[No. 401.]
Argued January 25, 1917. Decided Febru-
ai7 6, 1017.
IN ERROR to the Superior Court of Cin-
cinnati, Ohio, to reriew a judgment
affirmed by the Court of Appeals of Hamil-
ton County, in that state, in favor of plain-
tiff in an aoUon to recover a sum of monej
claimed to have been dqrasited with defend-
ant bank for the purpose of being loaned
by it on collateral security. Writ of er-
ror dismissed becausa directed to the wrong
Messrs. Ijandon L. Forcbheimer and
Ferdinand Jelke, Jr., for plaintiff in ar-
opinion by Mr. Justice*
* Memorandum
Say:
This writ of error must be dismissed. It
appears from the record that the action waa
commenced in the superior court of Cincin-
nati to recover the sum of $6,000 for money
which, it was alleged, the Cincinnati Bank
was to loan for the First National Bank of
Okeana. Issues were made up and a trial
in the superior court, which resulted
verdict and Judgment against the Cin-
cinnati Bank. Petition in error was filed
and the ease taken to the court of appeals,
wherein it was heard upon the record, and
the judgment of the superior court of Cin-
cinnati was affirmed. After a general Judg-
ment of affirmance, the court of appeals
ordered "^at a special mandata be sent to
Q^For etner easM ■•« si
• tople A KBT-NUMBaB In all Kar-KomtHTed Dliwts * mOaiMi
D,at,z.,i-.,'^-.00'^IC
Ult.
SECOND NAT. BANK T. VIBST NAT. BANE.
SST
the superior court of Cincinnati to carry
thiA judgment into execution." An appli-
utioB hj motion was made to the supreme
court of Ohio to direct the court of appeals
to certify its record to the supreme court
for review. That motion was overruled.
niereupon a petiUon for tho allowance of
» writ of error from thb court waa pre-
Knted, wliich recited that tlie Conatitution
and lawa of the etate of Ohio and the de-
cisi<Hi of the supreme court in Akron v.
Roth, SS Ohio St 466, 1Q3 N. E. 485, ahow
that the supreme court of Ohio haa no
jurisdiction of the case, in view of ita ra-
fusal to direct the court of appeals to cer-
tify ita record to that court, and that on
February 1, 1916, the record of the case
was returned to the superior court of Cin-
cinnati with the mandate of the court of
appeals, aflirming the judgment of the su-
perior court of Cincinnati, and a writ of
trror was asked to bring up for review the
order and judgment of the superior court.
A writ of error was allowed and issued,
running to the superior eonrt-of Cincin-
nati, reciting that it waa the highest court
of record in the state in which a decision
in the cause could be had. In pursuance
of that writ the record was certified from
the superior court of Cincinnati to tiiis
• * The Judicial Code, S 237 [30 Stat, at L.
116S, chap. 231, Comp. SUt. 1013, g 1214],
provides that a final judgment or decree in
any suit in the highest court of a state in
which a decision in the suit could be had,
where ia drawn in question the validity of
A treaty or statute of, or an authority ex-
ercised under, the United States, and the
decision is against their validity, etc., may
be re-examined and reveraed or afflrmed in
this court upon writ of error .
We are of opinion that in this case 1
writ of error should have been directed
the court of appeals, as that, under the
ConstitutioD and laws of the state of Ohio,
is the highest court in which a final judg-
ment could be rendered in this case, in view
of the refusal of the supreme court of Ohio
to grant the motion lio certify to it the
record of the court of appeals. Stratton v.
Stratton, 239 U. S. E5, 60 L. ed. 142, SB
Sup. Ct Bep. 26; Tallt? 8. 8. Co. T. Wat-
tawa, £41 V. 8. 642, 00 L. «d. 1217, 36 Sup.
Ct. Sep. 447.
By the new Constitution of Ohio and sub-
sequent legislation, a system of courts of
original and appellate jurisdiction was es-
tablished in that state. Section 1576, Gen*
eral Code, as amended, 103 Ohio Iaws, 41fi,
provides, among other things, that "the
superior court of Cincinnati, in respect to
tha form and manner of all pleadings there-
in, and tlie force and effect of ita judg-
ments, orders, or decrees, ia a court of
general jurisdiction," Section 12,247 pro-
vides that "a judgment rendered or final
order made by a court of common pleas or
by the superior court of Cincinnati, or by
judge of either of auch courts, may h«
reversed, vacated or modified, by the court
of appeals having jurisdiction in the county
wherein the common pleaa or auperior court
located, for errora appearing on the ree-
ord." Section I6S4 provides that "the su-
preme court or the court of appeals may
remand its final decrees, judgments, or
orders, in cases brought before it on error
or appeal, to the court below, for specific
or gener^ execution thereof, or to the in-
ferior courts for further proceedings there-^
"." s
Reference to the record in this caaa*
shows that the court of appeals ordered
"that a special mandate I>e sent to tha
superior court of Cincinnati to carry thla
judgment into executitm;" that is, to carry
into effect the judgment of the court of
appeals, lliere waa no direction that tha
superior court enter any judgment in tha
case; on the contrary, ita judgmut waa
specifleally affirmed upon the record aent
to the court of appeals, and the only man-
date directed was to carry Into effect in
the superior court, by execution, the judg-
ment of the court of appeals.
In thia state of the record. It Is elear
that the writ of error in thia case, when
allowed, should have been directed to tha
court of appeals, requiring it to certify
to this court its proceeding and judg-
ment for review here, that court being the
highest court of the atate in which k judg-
ment in tha case could be rendered.
It follows that the writ of arror In this
case must ha dismissed.
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FOLIX>WING ARE MEMORANDA
CA8E3 DISPOSED OF AT OOTOBEB TBBM, 1916,
C. 8. Jontia, Platntlff In Xrror, t. W. B.
OoiCBfl et »I. [Ho. 130.1
In Error to the SupreaM Court of Uie
6Ut« of Oklkboma.
Meura. C. B. Btutrt, A. G. Cruc«, W. I.
Cmce, M. E. Cmee, ud W. R. Blukmoro
for plUntiff in error.
Meura. J. H. Everest and B. U. Ouiqtbell
for deftadanti in error.
Juuary 8, lOlT. Per CurUm: Dlnniased
lor want of Jurisdiction npon the «nthorltT
(rf Eu*tU T. Bollei, ISO U. 8. SSI, 37 L. ed.
1111, 14 Sup. Ct. Hep. 131; Leatha V. Thorn*
M, 207 U. S. 93, 62 L. ad. 118, 28 Bup. CL
Bcp. 80i Holden Land Je Live Stock Co. t.
Inter-StAte Trading Ca 838 U. a 636, 641.
« L. ed. 1083, 1066, 34 Sap. Ct Rep. 661;
Uelloa Co. V. HcCoiTeitr, 230 U. S. 134, 60
L. ed. 181, SO Bup. Ct B^. S4.
MmnxAPOUB ft St. Louis Ruuoad Coh-
PAHT, Pl^utlff in Error, t. Emma F.
Nabb, u Adminletratriz of the Eatato of
John Everett Naah, Deceased. [No. 421.]
In Error to the Supreme Court of the
Btate of Minnesota.
Ur. Frederick M. Miner for plaintiff in
Ur. Humphrej Barton for defendant in
•rror.
January 8, 1B17. Per Curiam: Judg-
nvit reveraed with ooata upon the author-
ity of Delaware, L. * W. R. Co. t. Yurkonia,
£38 U. B. 43B, E0 L. ed. 1307, 36 Sup. Ct
Rq). 002; Bhanka t. Delaware, L. t W. R.
Co. 230 U. S. 56S, SO L. ed. 436, L.RA.
1916C, 707, 36 Sup. Ct Rep. 188; Chicago.
B. * Q. R. Co. T. Harrington, 241 U. S. 177,
180, 60 L. ed. 041, 042, 30 Sup. Ct Rdp. S17,
11 N. C. C. A. 092. Sea IHinois C. R. Co. t.
Cotiains, 241 U. & 041, CO L. ad. 121«, 88
Aq. Ct Rep. 440.
VmTBi Btateb t. Bxasti Whdoat, a lOaat,
et al. [No. 741.J
Petition fOr Writ of Certiorari to the
United Statea Circuit Court of Appeali for
the Eighth Circuit to bring up the entii*
record and cause.
Mesara. Charles B. Stuart, John J. SlwK,
and Joseph C. Stone for Wildcat
No brief fllad on thla motion by United
BUtM.
Jaanar]> 8, 1017. Granted.
Bonn F. Wnx et al, FetlUmen^ r. T.
Thokas Pabzeb et al, etc [No. 784.]
Petition for a Writ of Certiorari to the
United Statea Circuit Conrt of Appeali foe
the nird Circuit
Mr. T, Hart Anderson for petitlaHn,
Ho brief filed for req>oiideota.
Jaanai7 8, 1917. Granted.
Uifioir ruH CoKTAirr, PetlUonar, v. Jos»
W. EuOKSoir. [No. 789].
Petition for a Writ of Certiorari to the
United Statea Circuit Court of Appeal* for
the Ninth Circuit
Mr. G. 8. Arnold for petitioner.
No brief filed for respondent
January 8, 1017. Granted.
Eifiaaon, Petitioner, T.
Wabbkh B, Swextsu. [No. 791-1
Petition for a Writ of Certiorari to the
United Statea Circuit Court of Appeals fo>
the First Circuit
Mr. Henry Whedar for p«UtioMr.
No brief filed for respondent
January 8, 1017. Onutsd.
DiQtizoribyGoOgle
240
»7 SUPREME COURT REPORTER.
Oct. Tmt,
AuBXD P. Lowell, Petlttonsr, t. Wabkbk
E. BWEKTBEB. [Ifo. 702.]
Petition for n Writ of C«rtiorsr[ to tha
Cnited States Circuit Coort of AppeaU tot
th« Firrt Circuit.
Hr. Eenij Wheeler lor petltlonar.
No brief died for recpondent.
Juiiaij 8, iei7. Oranted.
PtrnftTLTAmA. RuLBOAS CcmPAiTT, Peti-
tioner, T. AuGK VkAHOiS Bxowir «t eJ.
[No. 771.]
PaUtlon for ft Writ of Certlonui to Ui«
Unitod SUtn Circuit Court of AppeaU foi
the Third Circuit
Messrs. Francis I. Ooven and Frederic D.
UeKenne? for petitioner.
Mmbtb. Thomas Raebum White and W.
0. Dennii for respondenta.
January 8, 1917. Denied.
GiKOLtm P. Booo, PeUUoner, v. T.*iinM.Tjn
C. Maxwell et tL, et«. [Ho. 817.]
Petition for a Writ of Certiorari to the
United BUt«s Circuit Court of Appeal*
for the Second Circuit.
Messra. Wtlllain O. Cooke and Uinla A.
Seitz for petitioner.
Mr. WllUan) A. W. Stewart for leepond-
«nts.
January 8, 1917. Denied.
mixulf J. Cbkeekobi, Petitioner, t
VitvtB) States. [No. 818.]
Petitioner for a Writ of Certiorari to the
United States Circuit Court of Appeals for
tlio Eighth arcuit
Messrs. C B. Stuart, A. C. Cruoe, M. K.
Cmce, J. 0. Denton, Frank Lee, E. Q. Mc-
Adamg, and Norman R. Haskell tor peti-
Mr. Solicitor General Davis and Mr, Aa-
aistaot Attorney General Wallace tor re-
spondent
January 8, 1917. Denied.
0. O. Samsoi* et al.. Petitioners, t. Wn.-
UAK Oaslahd. [No. 824.]
Petition for a Writ of Certiorari to the
Unit«d States Circuit Court of Appeals for
the Eighth Circuit
Messrs. Arthur R. Moore and William B.
Oppenheimra' for petitioners.
Messrs. William D. Mitchell and Plcree
Butler for respondent
January 8, 1917. Denied.
JtTAir OAnuiTAK, PtaintUF in Error, ▼.
Uinm STA.TEB. [No. MS.J
In Error to the Supreme Court of the
Philippine Islands.
No appearance for plaintiff in arror.
Mr. Solicitor General Davia for defendant
January 8, 1917. Docketed and dto-
missed, on motion of counsel for the de-
fendant In error, and mandate granted.
LoBEHzo Sona Chonoco, Plaintiff In Error,
V. Uktrd StATSB. [No. 8S4.]
In Error to the Supreme Court of the
Philippine Islands.
No appearance for plaintiff in error.
Mr. Solicitor General Davis for defend-
Jannary 8, 1917. Dodceted and illsniissnd,
on motion of counsel for the defendant in
error, and mandate granted.
BoAnD or Coitiioiuckk or thx Crrr or
FKASErcaT et al.. Appellants, v. East
TtnmsBEB Tbuephohb CoiUAnT. [No.
332.]
Appeal from the District Court of the
United States for the Eastern Diatriet <rf
Kentucky.
Mr. P. M. Dail^ for appellanU.
Mr. Alexander Pope Humphrey tot ap-
pellee.
January 8, 1917. Diamisaed per atipo*
lation of counsel.
Lomsvnjjt ft Nabbvilis Railboas Cow-
FAirr, Appellant, v. Wbsitbn Uhioh Tku-
SBAPH ColfPAKT. [No. 380.}
Appeal from the District Court of the
United States for the Eastern District of
Kentucky.
MesHTB. Henry L. Stone, Edward 6. Jon-
ett, and James B. Wright for appellant
Messrs. A. E. Richards, Rush Taggart,
and Alexander Pope Humphrey for appal-
lee.
January 8, 1917. Diamlased with oost^
on motion of counsel for the appellant
WnxtB Hope, Plaintiff in Error, r. W. T.
FoLET et «1. [No. ai3.]
In Error to the Supreme Court of tha
State of Oklahoma.
Meaara. George S. Ramaey, Edgar A. i*
Meules, and Haleolm E. Rosser tor plain*
tiff in error.
No appearance for defendants In error.
January 8, 1917. Dismiaaed with coata,
on motion of counsel for tk« plaintiff la
A^iOOglC
Ul«.
MEMORANDA CASES.
S41
St. Loots UmoH Tbust Cooipaiit, PetL
tioner, r. Uabt E. Mkllou ct tX. [No.
304.]
On Writ of Certiorari to th* United
Btatce Circuit Court of Appeal* for tiie
Eighth Circnit
Mesari. W. F. Wilson and Enoch A.
Chase for petitioner.
Meanv. J. H. Ererert and R. M. Campbell
for respondent*.
January 12, IBIT. Diamissed, at coats of
iMpondent, per stipulation.
ASLAimo OOABT LUfK RalLIOJiD C[>lfPAnT,
FUlntiff In Error, t. Elizabeth A. Miti.-
uoan, as Administratrix of the Estate
at W. E. Mulligan. Deceased. [No. 664.]
In Error to the Supreme Court of the
State of South Carolina.
Meesri. P, A. Willcox and Frederio D.Mc-
Kenne; for plaintiff in error,
Mr. Benjamin B. Pierce for defendant in
January 15, IBIT. Per Curiamr Judg-
ment affinned with eosta upon the authority
of Chicago Junction R. Co, t. King, 222
U. S. 222, 56 L. ed. 173, 32 Sup. Ct. Rep.
TB; Seaboard Air Line R. Co. v, PadgeM,
S3Q U. 8. 668, 69 L. ed. T7T, 36 Sup. Ct.
Rep. 481; Great Northern R. Co. v. Knapp,
240 U. 8. 464, 60 L. ed. 746, 38 Sup. Ct.
Rep. 3BB; Baltimore A O. R. Co. t. Whtt-
aere, 242 U. S. 169, 81 L. ed. 228, S7 Sup.
Ct Bep. 33.
J. Vtxa Katkkaio, Trustee in Bankmptey
of Harmon Brothers, Appellant, v. Moif-
Mxr TBfST CoupAKT, Receiver; Illinois
Surety Company, and William Q. Mc-
Adoo, Secretary of the Treasury. [No.
218.]
Appeal from the Supreme Court of the
District of Columbia.
Mr. Mortimer C. Rhone for appellant.
Mr. Assistint Attorney General Warren
and Mr. Bynum E. Hinton for appellees.
January 15, 1917. Per Curiam: Die.
missed for want of jurisdictian upon the
authority of Coder v. Arts, 213 U. S. 223,
234, 23S, 63 L. ed. 772, 777, 778, 29 Sup.
CL Rep. 43S, IS Ann. Csa. 1008; Tefft, W.
* Co. T. Munsuri, 222 U. S. 114, 118, et
•eq., 66 L. ed. 118. 119, 82 Sup. Ct. Rep. 87;
James v. Stone, 227 U. S. 410, 67 L. ed. 673,
S3 Sup. Ct. Rep. 851 ; Swift ft Co. v. Hoover,
2^ U. S. lOT, 61 I* ed. ITS. 37 Sup. Ct.
Rep. 56.
ar 8. c— 16
Abizoha Easimir Rahaoas Coufakt and
Epee Randolph and L. H. Manning, its
SuretlM, Plaintiffs In Error, v. W. N
Bbtas. [No. 661.]
In Error to the Supreme Court of the
State of Arizona.
Mr. Eugene S. Ives for plaintiffs in er-
January IS, 1917. Per Curiam: Judg-
ment affirmed with costs upon the authority
of (1) Chicago Junction R. Co. v. Ring,
222 U. S. 222, 68 L. ed. 173, 32 Sup. Ct
Rep, 79; Seaboard Air Line R. Co. v. Padg-
ett, 236 n. S. 668, 5B L. ed. 777, S6 Sup.
Ct Rep. 481; Great Northern R. Co. v.
Knapp, 240 U. S. 464, 80 L. ed. 746, S6
Sup. Ct. Rep. 3B9; Baltimore t. O. R. Co.
7. Whitacre, 242 U. S. 160, 61 L. ed. 228, 87
Sup. a. Kep. 33. (2) Norfolk 4 W. R. Co.
T. Earnest, 229 U. B. 114, 121, 122, 67 L.
ed. 10B6, 1100, 1101, S3 Sup. Ct Rep. 664,
Ann. Cas. 1B14C, 172.
Chicago t Altqit Raiuoad Cohfaitt, Ap-
pellant, T. UNrm> States [No. 30] ; and
Yazoo & Mississippi Vauxi RaiixoAn
CouPANY, Appellant, r. Uflim Statu
[No. 68.]
Appeala from the Court of Claims.
Messre. Jacob M. Dickinson and John G.
Johnson for appellants.
Mr. Solicitor General Davis and Mr. As-
eistant Attorney General Thompson for ^>-
pellee.
January 15, 1BI7. Per Curiam: Judg-
ments affirmed by an equally divided court
Iiuitoifl Centbai. Railboad CovTAm,
Plaintiff in Error, v. Mas. UTtMBAt.i.
Lams, Administratrix, etc [No. 780.]
Petition for a Writ of Certiorari to iha
Supreme Court of the State of Louisiana.
Messrs. Hunter C. Leake, Guetave Lemle^
Blewett Lee, and R. V. Fletcher for plain-
tiff in error.
No appearance for defendant in error,
January 15, 1B17. Denied.
Db. Path, Oestins, alias Paul Allen, Peti-
tioner, V. Unitbd States. [No. 783,]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Ninth Circuit
Messrs, Charles J. Heggerty and James
Raleigh Kelley for petitioner.
Mr. Solicitor General Davis and Mr. As-
sistant Attorney Greneral Wallace for i»-
January 15, ISIT. Denied.
,A_^OOglC
248
17 SUPRSUS OOUBT BEPOBTE&.
OOT. Tebh,
r. Uhitbd Statbi.
J. F. WcTZEL, Petitioner,
[Mo. SOI.]
Petition for x Writ of Certionri to tbe
United States Clrauit Court of .Appwla for
the Ninth OreuiL
UeuTB. 0. P. SUdger ud Dftvid A. Bmt
for petitioner.
Ur. Solictor Qeuenl DatIb uid Ur. A»-
^tADt Attorney Qanerol Wallaca f« r»-
•poodent.
Junary IS, ISIT. Denied.
L PAOmo FiBHnm, Petitioner,
TmuToBY or Ai^bka. [No. 610.]
Petition for a. Writ of Certiorari to the
United State* Circuit Court of Appeals lor
the Ninth Circuit.
Ur. Harrey U. FViend for petitioner.
Mr. George B. Qrigabf for respondent.
Jaiinu7 U, 1*17. Denied.
ALAam MsxjcAiT Oout Ucnna CoKFAirr,
Petitioner, t. Tdbitdxt of Ai.mka. [No.
811.]
Petition for « Writ of Certiorari to the
United States dronlt Court of Appeals for
the Ninth Circuit.
Ur. EMTWvf U. Friend (or petitioner.
Ur. Oeorge B. Origsbf tor reipondent.
JoDoarr U. U17. Dntad.
A1.IHXA PAonno Frsanm, Petitioner,
TjoMToKt or Ar.kAn [No. 812,]
Potion for a Writ of Certiorari to the
United State* Circuit Court of ^peols (or
the Ninth Circuit
Ur. Hsrvej U. Friend for peUtJonar.
Ur. George B. Grigsby for respondent.
Januai7 US. 1917. Denied.
Alaska Bauion Compaht, Petitioner, t.
Tebbttobt or Alaska. [No. 816.]
Petition for a Writ of Certiorari to the
United SUtes Circuit Court of Appeals for
the Ninth arcuit
MessTB. Warren Qragorj, George H. Whip-
ple, E. B. UcCord, and W. H. Bc^le for
pstitioner.
Ur. Geo^a B. Origd? (or r«nciidaBt.
Jannur U, 1»1T. Dwiad.
Au^OAiT Bahk or At.* HIT*, PetiUotier, t.
Edwht Ricoahm. [No. 81B.]
Petition for a Writ of Certiorari to tba
United StatM Cireolt Court of Appeals
for tha Ninth Circuit.
l&ssrs. Charles J. Hegger^ and Janus
Rolei^ Eellj for petitioner.
Ur. W. H. Ueteon for respoudeaL
Jaanarj' 11^ 1017. Denied.
Dnson Iboit k Smz. Oohpaitt, Petitioner,
T. Jakes D. Cabr. [No. B28.]
Petition for a Writ of Certiorari to ths
United States Circuit Court of Appeal* for
the Sixth Circuit
Measrs. George B. Uortj and Oiarlaa B.
Miller for petitioner.
Mr. Albert Lynn Lawraic* for reload*
JonnoiT 16, 1917. Denied.
OiCAHA IBOW Stobb CoKFAirT, PetltIon«r, t.
UoLnne Plow Coxpaht. [No. SSL]
PetitltHi for a Writ of Certiorari to tha
United States Circuit Court of Appeals for
the Eighth Clroult
Mr. Otto Rajmond (or petitloKer.
Messrs. Samuel Walker Baaning ibJ
Thomas A. Banning for respondent
Januai7 16, 1017. Denied.
Db.awai^ Laokaitakha,
RATT.anjn CoUTAiTT, Petitioner, t. Bodb>
Tkaxspobtatioit Goicpaitt. [No. 8S8.]
Petition for a Writ of Certiorari to tha
United SUtes Circuit Oonrt erf Appeals for
the Second Circuit
Messrs. louls UanhaU, WllUam S. Jen-
Be]', and Austin J. MoMahon for petltlonflc.
Uessra. J. D. Carpenter and B. O. Psskas
tor respondent
January 16, 1917- Daniad.
RoBsn EoTAm Bakkr et al., Trustees, et&.
Petitioners, t. J. J. Di7in.op. [No. US.]
Petition for a Writ of Certiorari to tha
United States Circuit Court of Appeals (or
the Fourth Circuit.
Messrs. Conrad H. Syme, Edwin P, Co^
and Kcliard H. Uann for petitloiura.
No i^pearonca for re^Kmdnt,
January U, U17. Denied.
.A^ioogle
19IS.
UEU OBAITDA OASSa
«3
MnnretPOT.ia k Si. Loms IUilboad CSom-
rAXT, Petitdono', t. T. D. Dayim. fNa
Bfil.]
Patitioii for a, Writ ci Ceitlonri to th«
Suprcma Court oi the St«ta of HinnMot*.
Meura. W. H. Brenmer uid V. iL Miner
for petitioner.
No ftppeannea ba respoudHit.
Juin&iy U, leir. DaniMl.
Pdbuo Sbviob <Ua Omaeun, Plaintiff in
Error, t. BoiUd of Prauo UxiUTicfl
ComaBBionsBS or rsm State of New
JB8KT et ftl. [No. ISa.]
In Error to the Court of Error* uid Ap<
pCftli of the State of New Jeraej.
Ues«r«. Frank Bergan and Thomaa N. Mo-
Cwrter for pIsintifT In error.
Uewre. L. Edward Hemnann, Edward
V. Merrttr, *^ All>ert 0. MIIlw, Jr., fw
dafeodanfa In anx.
Jannaiy 19, 191T. DinniMed with ooata,
per etipulatlMi, on motion of eonnael lor
tiM pinlntur In error.
Fnuo BBnon Qu GOKFAirT, Plaintiff In
Error, t. Cm of FAnaaon rt al. [No.
1«7.]
In Error to the Ooart of Brron and Ap>
peftle of the State of New Jeney.
HeuTB. Frank Bergen and Thomu N. Mo-
Carter for platntUT in error.
Meears. L. Edwnrd Hemnaim and Edward
v. Merrey for deftndanta in error.
Jannnry 10, 1917. Diimiu«l with coeta,
par eUpnlation, on motion of eounaal for the
Pdblio Sixnax Qab Coicpaht, PlalntUt in
Error, t. Cm or PAflSAio et aL [No.
188.]
In Error to the Oonrt of Errora and Ap<
pettla of tlie State of New Jersaj.
Keaara. Frank Bargm and Thomu N. Mo-
Ckrter for plaintiff in error.
Meaara. L. Edward Herrmann and Edward
F. Herrey for defendants in error.
Jaunary 19, 1917. Diamiiaed with ooata,
par etipnlatios, en motion of ootmaal lor tha
pinintlff in arrot.
Bx pixTi! In THi Mati^ of St. Lodib,
KJlKUS CITT, t COUKAIIO RULnOAS
OOKPAHT,
Motiona lor -leara to file petltlona for
Writa of ProhibiHcn and Mandamna.
Meaara. Paul B. Walker, Thomaa P. lit-
tiepage, James C. Jonei, Lon 0. Hocker, and
Prank H. SulUvan for peUtioner.
No appearance for re^Muidttit.
Januarj 22, 1DI7. Denied without preja-
dio* in ai^ reapeot to rdiaf on appeal or
otbarwiaa oa the mertta.
IiAWBBiTGB Maxwell et al., PeUUmera, t.
Gbablotis jAn Isasbj.! UoDonald e*
al. [No. 821.]
Petition lor a Writ of Certiorari to tha
Court of Appeala of tha Diatrlot of Coliuu-
bin.
Ueaara. Frederic D. UeEwne^, J. S. Flan-
Bttrj, Fredarick de Conrcj' Fknat, and
Charlaa F. Wilaon for petltionera.
Meaara. Benjamin 8. Minor and Collar ^•
Bell for respondenta.
Jannat7 22, 1917. Denied.
Hxwm OoMFAHT, Pattttoner, ▼. -V^nm
SzAma Metaiuo PAOxurg CoxrAHT,
[NO.SZ2.]
FeUtioa fw a Writ of Certiorari to tha
United States Circuit Court of Apptala lor
the Seventh CireuiL
Ueaara. Jamaa H. Pdroa and Qawfa P.
Fiaher for petitioner.
Mr. Frauele T. diambera for laipondant.
JanuArjr 22, 1917. Denied.
AMmUAIt-HAWAUAir SnAJf skip OOMFAJtTt
etc, Patitionar, v. S:raAiHALBTK SiCAX-
Bua CoKPAxr, LnoiH), ato., [No. 867.]
Motion for leave to preaent petition for
Writ of Certiorari to the United SUtea Cir-
cuit Oonrta el Appeala for the Ninth Oir-
eult.
Meaara. W. B. Bogla and Oarrtril B.
Graves for petitioner.
No appearance for reapondent.
JannaiT 22, 1917. Qranted and tha peti-
tion denied on tha mwita, and the motlok
for ddaj to gira further notloa e<maeqnant^
dviled.
A^iOOglC
37 SUPREME OOTTBT KEPOBTEH.
Oct. Tmi,
PHTHnxTAHU RAtLBojj) CoHPAHT, Plain-
tiff in Error, v. E. K. Lakqill and Q. A.
EdmiEtoQ, u Langill & Edmiston. [No.
ess.]
Id Error ta the Supreme Court ol thu
Stcte of PennBylTania.
Mmbtb. Frederie D. HoEaantj and E. W.
BlkU for plaintiff In error.
No appearance for defendanta In error.
January 22, 1917. Dinnisaed with corta,
on motion of couuetl for tha plaintiff In «r-
ror.
Baltiuobk k Ob 10 Raiuoaii CoHPAinr,
Plaintiff in Error, t. Wnxuii C. HxacN.
[No. 308.]
In Error to the Court of Appeal* for the
Fifth District, Ucking County, Stat* of
Ohio.
MesBTB. Alfred A. Frazier, George E.
Hamilton, John W. Yerkea, John J. Hamil-
ton, and Edward Kibter for plaintiff In er-
ror.
MetarB. F. S. Honnett and Rufua 8. Day
for defendant in error.
January 22, leiT. DiamlMed, per atipn-
lation of counsel.
Jay C. Zieoleb et al.. Appellant*, t. Cab-
KMait Trust Coiipant et al. [No. 444.]
Appeal for the District Court of the
United States for the Southern Diabriet of
New York.
Mr. Donald C. Stracban for appellanta.
Ur. Joseph A. Kello<^ for appellees.
January 25, 1917. Dismissed, per stipu-
Stnr Life Asbukarce Compaitt or Cahasa,
Plaintiff in Error, t. Ldiba RivzaA. [No
27.]
In Error to the District Court of the
United St&tes for the Bistrict of Porto Rico.
Ur. Cay Colt Cuchl tor plaintiff in error.
Mr. Willie Sweet for defendant in error.
Jannary 29, 1917. Per Curiam: Judg-
ment afGrmed with costs upon the authority
of rule 6, T S; Nadal t. May, 233 U. 8. 447,
404, 68 L. ed. 1040, 1041, 34 Sup. Ct Rep.
611; Cardona v. Quifionea, 240 U. S. 83,
88, 60 L. ed. 638, MO, 36 Sup. Ct Rep. 346.
Did DoMiNion Iboh & Nah. Wobxb Com-
PAITT, Plaintiff in Error, r. Chbsapcakb
ft Ohio Railwat Compakt and City ot
Richmond. [No. 378.]
In Error to the Supreme Court of Ap-
peal* of the Bts.te of TirglnU.
MessTL E|qw Hnnton, Jr., E. Randolfdi
Williams, and Heni7 W. Anderson for plain-
tiff in error.
Hewr*. H. R. Pollard and Heniy T^lor,
Junior for defendAUt* in error.
January 29, 1917. Per Curiam: Di*-
niaaed for the want of juriadiction upon
the authori^ of (1) Eutia t. Boole*, ISO
U. 8. 361, 37 U ed. nil, 14 Sup. Ct Hep.
131; Leathe t. Thomas, 207 U. S. 93, 62
L. ed. IIB, 28 Sup. Ct. Rqt. 30; Mellon Co.
T. McCafferty, 239 U. 8. 134, 60 U ed. 181,
36 Sup. Ct. Rep. 94. (2) Pierce t. Somer-
set R. Ca 171 U. 8. S41. 43 L. ed. 316, IB
8up. Ct. Rep. 64; Preston t, Chicago, 226
U. 8. 447, 460, 57 L. ed. 203, 206, 33 Bnp.
Ct Rep. 177; Wood t. Chesborough, 22S U.
8. 672, 677, 67 L. ed. 1018, 1020, 33 Sup.
Ct Rep. 706. (3) Moran t. Horsky, 178
U. & 206, i4 L. ed. 1038, 20 Sup. Ct Bap.
866.
MiKKsapoLiB t St. Loma RAnaoAD Com-
rAHI, Plaintiff in Error, t. Bebtha L.
Thoupsor, a* Adminiatrstrix of the Es-
tate of Charles E. Thompson, Deoeued
[No. 66S.]
In Error to the Supreme Court of the
Sinte of Minnesota.
Mr. Frederick M. Miner for plaintiS in
Mr. Humphrey Barton for defendant in
January 29, 1017. Per Curiam: Judg-
ment affirmed with oosta upon the author!^
of Chicago Junction R. Co. v. King, 222 U.
B. 222, 63 L. ed. 173, 32 Sup. Ct Kep. 70;
Seaboard Air Line R. Co. t. Padgett, 23S
U. S. 668, 60 L. ed. 777, 36 Sup. Ct Rep.
481; Great Northern R. Co. t. Knapp, 240
U. 8. 464, 60 L. ed. 746, 36 Sup. Ct. Rep.
390; Baltimore & 0. R. Co. v. Wl.itaere,
242 U. S. 169, 91 U Ed. 228, 37 Sup. Ot
Rep. 33.
Baltiiiohe t Ohio Railxoav Coufant,
Plaintiff in Error, t. Datid Boamsoh,
[No. 631.]
In Error to the Court of Appeals of the
State of Maryland.
Messrs. George A. Pewre, Duncan X.
Brent, and A. Taylor Smith for plaintiff in
Messrs. Albert A. Doub, F. Brooke Whit-
ing, and George Louls Eppler for defendant
Jannary 29, 1B17. Per Curiamt Jttdf-
ment revened with costs upon the anthoritjf
of Delaware. L, ft W. B. Co. t. Ynrkuib,
238 U. & 4M, 6B L. ed. US7, U Sop, Ok
A^iOOglC
IBM.
UEMORANDA 0ASB8.
245
Hap. 902 ; Shknka t. Delawue, L. ft W. R.
Co. 239 U. S. 666, 60 L. ed. 436, L.ItA.lB16C,
TOT, 30 Sup. Ct. Rep. 18S; Chicago, B. & Q.
R. Co. V. HMTington, 241 U. S. 17T, 180,
«0 L. ed. 941, 942, 30 Sup. Ct Rep. 61T, 11
K. C. C. A. B02: UiniiwpoIU ft St L. R.
Co. T. Winters, 242 U. S. S53, 61 L. ed. 35S,
37 Sop. Ct Eep. 170.
I. Cmxxas Do Pont, Petltionu-, t. OBaKSK
N. OABDina, Jx., at kL, Exeoutori, gto.
[No. B62.]
Petition for ft Writ of Certionri to tii«
Uiiit«d States Circuit Conrt ol Appnli for
the Secoud Circuit
Mr. Joliui F. Workum for petitioner.
Meura. L. Laplin Kellogg and Alfred C.
Pett4 for reepondenta.
Juiuar7 29, 1S17. Denied.
Adkuh Bakkeb, PeUtloner,
luidb-Ahbbican SiXAii Natigatioii Coh-
PAirr, sued aa HoIUnd-Amerleui line.
[No.
S9.]
Petition for a Writ of Certiorari to the
United Btat«a Circuit Conrt of AppeaU for
the Second Circuit.
Ur. Roger Foster for petltiMiar.
Mr. Charlea C. Burlingham for rwpoad-
January 29, lOlT. Denied.
Labbwkli. LiiiD ft LmcBD CmaAXT, Peti-
tioner, r. Lei Wujboh ft Ooirrijn, [No.
871.J
Petition for a Writ of Certiorari to the
United Statei Circuit Conrt of Appeali for
Bi^tb Circuit
Messra. Charlee B. Williams and J. P.
TriUle tor petitioner.
McMrs. Prank H. Snllivan and Allen
Eo^ei for reqwndent.
Jaanary 29, 1917. Denied.
SAinrxL J. Mabteu et al., PeUtlonen, t.
BswAED W. MoLLOHAH, Truatce. [No.
887.]
Petition for a Writ of Certiorari to the
Court of Appeals of the District of Colnm-
St. Lotcb, Iboh Uouhtuii, ft SouraEBK
RULWAT CoMPurr, Plaintiff in Error, t.
Ahhix Rodokbs, a* Administratrix, etc.
[No. 1TB.]
In Error to the Supreme Court of the
State of Arkansae.
Messrs. E. B. Kinaworthj and R. E. Wil^
for plaintiff In error.
Ueasrs. Thomas C. UeBae Kid Wm. V.
Tompkins for defendant in error.
February 1, 1917. Dlamissed with easts,
on notiou of counsel for the pUiutifl in er-
Ueasrs. Daniel W. Baksr, Wllttn J. I^m-
bsrt and E. L. Qiea for petitlonera.
Ut. W. Qwynn Oardlner for reepondtsit I No appearance for respondoit
Janwr 20, 1*17. Dsntod. ' Februarj S, 1917. Denied.
Gkat Nowhpw Railtat Ooupaiit,
Plaintiff in Error, *. Ahita Roaoh, as
Administratrix, etc. [No. 096.]
In Error to the Supreme Court of ths
State of Minnesota.
Mr. A. L, Janes for plaintiff in error.
Mr. Ernest A. Mlehd for defendant in er-
February 6, 1917. Per Curiam: Judg-
ment affirmed with coats upon the authoritj
ol Chicago Junction R. Co. y. King, 222 U.
B. 222, 66 L. ed. 173, 32 Snp. Ct Sep. 79;
Seaboard Air Line R. Co. v. Padgett 230
U. S. 058, 69 L. ed. 777, 35 Sup. Ct. Rep.
481; Great Northern R. Co. y. Enapp, 240
U. S. 464, SO L. ed. 745, 36 Sup. Ct Rep.
309; Baltimore ft 0. R. Co. t. Wbitaore,
242 D. S. 168, 61 L. ed. 228, 37 Sup. Ct
Rep. S3.
Ez PAITE: In THB MATrxB OF JOSDH
Masbhau, Petitioner. [No. — .]
Motion for leave to file petition for Writ
of Habeaa Corpus and that petitioner be ad>
mitted to bail.
Mr. William C. Bowers, Sd, for petitioner.
No appearance for respondent
Febniarr «, 1BI7. Denied.
Bz PARTE; In THB MATTEB OP JOHK P.
WHrrc, as President and William Qreen,
aa Secretarr-Treasurer, of United Mine
Workers of America, et al.. Petitioners.
[No. -.]
Motion for leaTe to file petition for Writ
of Prohibition.
Messrs. Henrj Wammi and George L.
Grant for petitioners.
,A_.oogle
n so^Bus oonsi repoeteb.
Oct. Tnuc
Bt. Lom HExnuxn Busm Tnxmu.
Bailwat OoMFAxr, Petitioner, t. Wn.-
LUIC 3. SOBCTUUIT. [No. 842.]
Petition tor a Writ of Certiorui to tliF
Uiiit«d SUtM Clrenit Court of AppMli for
the Eighth drcuit.
UeMri. T. U. Pleroe uid Wkltw M. Head
for peUUoner.
Mr. W. C. Mftnhall for rcapoudent
FebruAjj 5, 1617. Denied.
Sun atxK or CuuxirAna, NanuxA,
Petltioiier, t. J. Q. Inoux, Tnttta^ eto.
[No. sei.]
Petition for » Writ of Cwttonri to the
United Statee Clrenit Court of Appenle for
the Bigbth Oircnit.
For opliifa« bolow, see 3ST red. n.
UaHre. Arthur F. Uullen utd E. a Bm-
dMtarg for petitioner.
Mr. B. E, Brani for retpondmt.
Vdmui? S, 1B17. Denied,
Bunm BcKNaimf, PaUtkaer, ▼. Uv
Sum. [No. BH.]
Petition for » Writ of CertiMwl to the
United StAtee Cireolt Court id AppenU (or
tha Fonrth Cirenit
Mr. Robert H. Telley for petitioner.
No appenranoe tot regpoadMti.
Jobnuij S, U17. Dnied.
Iixnioia CunKAL Railboad Coupaitt et
«!., Petitionert, t. V. P. Uebsiha. [No.
896.]
Petition for a Writ of Certiorari to the
Supreme Court of the State of Ulnieelppl.
Meun. H. D. Minor, Edward Maye^ Rob-
ert V. FUtcher, Blewett Lee, and Cbarlee N.
Burch for petitioner*.
Meaara. William H. WatUna and Hanj
Peyton for reepondat.
Februarj 0, 1917. Denied.
Urtid Mxra WoBXBS or Amebku, PeU-
Uoner, T. A. 5. Down, Receiver, etc, et aL
[No. 888.]
Petition for a Writ of Certiorari to the
United Statea Clrooit Court of Appeab tar
the Eighth Circuit.
Meaera. Hear; Warmm, Oeorg* L. Qcaat,
and Wdib Covington for petitioner.
Meeira. Soger B. Hull, Henrj 8. Drinker,
Jr., and Jamea B. UeDonough lot nsgvoAr
Fehruary fi, 1917. Dnled.
Ena BoxD, Petitioner, t. Otro 8. Luranc,
Sheriff, ate. [No. 9M.]
Petition for a Writ of Oertionri to tha
Supreme Court of the State of Ulnneaota.
Mr. Eraeat S. C^rey for poUtlonar.
No appearance for reapondcnt.
i, 1917. Daidad.
>v Google
iniB.
fM V. 8. US)
KEW YORK CENTRAL RAILROAD COU-
PANT, PIff. in Err,
SARAH WHITE.
CoumiicB ^stZIffS — Ehtlotebs* Ixibil-
ITT— Sebvant ffiHSAaU) in "IimBSiATE
CouoBOK."
1. A night vatchmki) In Oit emploj of
A railwej company, injured while in the
perform mce of hi* duty to gitard toola and
Buteriala Intended to be used in the con-
■truction of a new railway station and new
tncka, was not then Kigaged in interstate
commerce within the meaning of the Federal
Employers' Liability Act of April 22, ISOS
(35 Stat, at L. 65, chap, 149, Comp. Stat.
1913, S SQ6T), although such station and
tracks were designed for use, when finiabed,
in interstate commerce.
[Bd. NotB.— For other dsflnltlOD*. MS Words
■od Phrsau, FInt and Second Ssrias, Intantftte
OamiDsrce.]
ConstirunoKAi. Law «=>276(2), 301— Mas-
ter AND Sbbtant «s334T — Wobkmev'b
naKPBMHATioH— Dm PBocm or Law—
W COMTBAOr— POLIOB POWXB.
L The compulsory compensation scheme
ol the New York Workmen's Compensation
Act {N. Y. Laws 1913, chap. Slfl; I«wa
l»i, chaps. 41 and 316), which, in lieu of
the common-law liability confined to cases
of negligence, imposes a liability upon em<
ployera to make eompenaation for disabling
or fatal accidental peraonaJ injuries re-
denominated "hazardous employments," with-
out regard to fault as a cause, except where
the injury or death is oceaaioned by the em-
playe«rs wilful intention to produce it, or
where the injury results solely from bis in*
tniealian while on dn^, gndnating the
mmpenaation for dtsabilf^ according to a
prescribed seale b^wd upoi loss of earning
power, having regard to the prerions wage
and the character and duration of the dls-
•bility, and meamrinK the death benefits ae-
eording to the dependency of the ■unrirlBg
irife, husband, or infant children, — does not
eonto'avene U. 6. Const. 14th Amend., aa
taking property without due process of law,
or unwarrantably limiting freedom of con-
tract, whether considered tram the stand-
point of employer or employee, but Is a
Talid exercise of the polics power of the
•tata.
[Cd. Hate.— For otHer eases, sea OCBsUtnUonal
lAw. Cent. DIK. 11 tBt, SH-BU, HS-KO, BCT.]
OonarrrcTtOKAL Law «=9318— Dux Pro-
cess or Law— EXjDAi, Protbotioit or the
Laws— Tbial by Jubt.
3. Trial by jury is not embraced In the
rights secured by the 14tli Amendment to
the Fedenil Constitution.
[Bd. Note.— For other cases, see Conatltntlonal
lAV. Cent Die | m.J
OonnTrnnoKAL Law ^924D— Dquai. Pbo-
ncnoH or tbi Laws— WosKHXif'H Com-
miBATioN Act — CLABamcATioK- Bz-
Eitpnon or Fabu LAsoiEBa abd Do-
BEsna Sbbtartb.
4. The exclusion of farm laborers and
jhf'w— t** serrants frmn the oompulaoryconi-
peoaation scheme of the New York Worlc-
NBW YORK C. E. CO. t. WHITK.
moi's Compensation Act (N. T. Laws 1911,
chap. 816; Ijlwb 1914, chaps. 41 and SU)
Is not such an arbitrary elaaslScatiou as to
contravene the equal protection of the laws
clause of U. S. Const. 14th Amend., sinos
it reasonably may be considered that ^
risks inherent in these occupations are ex-
ceptionally patent, simple, and familiar.
[Bd. Note.— Tor other csms, see OansUbntloDsl
Uiw. Oent. DIs. I TOL]
CoNnrrnnoirAL Law ^3245— Duk Pbo-
OBSa or Law — WoKXUxit'B Comfebsa-
TiOH Act— MxiBOD or SxoDBiira Pat-
MKBI.
G. The requirement ot the New York
Workmen's Compensation Act (N. Y. Laws
1913, chap. B16; Laws 1S14, chaps. 41 and
816), I GO, that the employer shall secure
payment ot the compulsory ccmpeusation
Creecribed by that act either by (a) state
isurance, (b) Inauranse with an author-
ized insurance corporation or association,
or (c) by furnishing satisfactory proof of
be said to contravene U. S.
&onst. I4th Amend., since self -insurance un-
der the third method presumably la open
to all solvent employers
[&d. Kota.— Far other ewes,
I«w. Cent. Die I Ttt.]
[No. S2D.]
Argued February £9 and March 1, 1910.
Restored to docket for reargument No-
vember 13, 1916. Reargued February 1,
191T. Decided March 6, 1917,
IN ERROR to the Supreme Court, Ap-
pellate Diviaioo, Third Judicial Depart-
ment, of the State ot New York, to review
a Judgment affirmed by the Court of Ap-
peals of that state, which affirmed an award
by the state Workmen's Compenaation Com-
mission. Affirmed.
See same case below, In appellate divirion,
leg App. DlT. 903, 162 N. Y. Supp. 1149;
In court of appeals, S16 N. Y. 663, 110 N.
E. 1061.
The facts are stated in the opinion.
Messrs. William L. TIsecher, Frank
V. Wbltlng, Robert E. Wltalen, and
H. Laroy Austin for plaintiff in error.
MessTi. Harold J. HInnian and E.
Olarenoe Aiken, and Mr. Egburt B. Wood-
bury, Attorney Qeneral of New York, for
defendant in error, -
*Mr. Justice Pitney delivered the opln-*
ion of the court:
A proceeding was commenced by defend-
ant in error before the Workmen's Compen-
sation Commission ot the State of New
York, established by the Workmen's Com-
pensation Law of that state,l to recover
I For other ci
1 Chap. 816, Laws 1913, as re-enacted and
amended by chap. 41, Laws 1914, and
amended fay chap. 316, I«ws 1914. \0\C
II tuple ft KBY-NUHBBR In all Kar-N«mb«red Dlisala ft Indeies
81S
ST SUPREUI COUBT REFOKTES,
Ooi. Imtr
cotnpenBatloB from tlie Nev York Caitr&l
ft HudBDii RiTcr Railroad Companj lor tbe
death of her hiubaiid, Jacob White, who
lost hia life September 2, 1614, through an
accidental injury Arisiug out of and in the
course of hia emploTmeiit under t^at com-
panj. The CommiBHion awarded compen-
^ aation in accordance with the terms of the
» law; its award was affirmed, without opia-
• ion, hy the appellate 'divUion of the au-
preme court for the third judicial depart-
ment, whose order was afSnned by the court
of appeals, without opinion. 169 App. Dit.
003, 152 N. Y. Supp. 1140, 216 N. Y. 663,
110 N. E. 1051. Federal queitioas having
been aaTed, the present writ o( error was
sued out by the New York Central Railroad
Company, successor, through a conaolida-
tion of corporationa, to the rights and lia-
bilities of the employing company. The
writ was directed to the appellate division,
to which the record and proceedings had
been remitted by the court of appeals.
Bioux Remedy Go. t. Cope, 235 U. S. 197,
200, 69 L. ed. 193, IDS, 35 Sup. Ct Rep.
57.
The errors speciHed are based upon these
contentions: {]) that the liability, if any,
of the railroad company for the death of
Jacob White, Is deflned and limited exclu-
sively by the provisions of tbe Federal Em-
ployers' Liability Act of April 22, 1903,
chap. 149, 36 SUt. at L. 65, Comp. Stat.
1913, I 8667, and (2) that to award com-
penaation to defendant In error under thg
provisions of the Workmen's Compensation
Law would deprive plaintiff in error of ita
property vrlthout due process of law, and
deny to it the equal protection of the lawa,
in contravention of the 14th Amendment.
The first point assumes that the deceased
was employed in interstate commerce at
the time he received the fatal injuries. Ac-
cording to the record, he was a night watch-
man, charged with the duty of guarding
tools and materials intended to be used in
the construction of a new station and new
tracks upon a line of interstate railroad.
Th« Commission found, upon evidence fully
warranting tbe finding, that he was on duty
at the time, and at a place not outside of
the limits prescribed for the performance
of hie duties; that he was not engaged in
interstate commerce; and that the injury
received by him and reaultiog In hia death
waa an accidental injury arising out of and
in the course of his employment,
» The admitted fact that the new station
• and tracks wereTdesigned for use, when fin-
ished, In interstate commerce, does not
bring the case within the Federal act. The
t«st is, "Waa the employee at the time of
the injury engaged in Interstate transporta-
tioD, or in work lo elosely related to It aa
to be practically a part of itt" Shanks t.
Delaware, L. A W. R. Co. 23S U. 8. CBO,
668, 60 L. ad. 436, 438, LJLA.1916C, T07,
36 Sup. Ct. Hep. 188. Decedents wwk bora
no direct relation to interatate tranaporta-
tion, and had to do solely with conatrao-
tion work, which is clearly distinguishable^
as was pointed out in Pedersen v. Delaware,
L. & W. R, Co. 22B U. S. 146. 162. 67 L. ed.
1125, 1J2S, 33 Sup. Ct. Rep. 643, Ann. Cas.
1914C, 163, 3 N. C. C. A. 77B. And aee
Chicago, B. & Q. R. Co. t. Harrington, 241
U. B. 177, 180, 80 L. ed. 041, 942, 38 Sup.
Ct. R^. 617, II N. C. C. A. 992; Raymond
V. Chicago, M. & St. P. R. Co. this day de-
cided [243 U. S. 43, 61 L. ed. 583. 37 Sup.
Ct. Rep. 268]. The first point, therefore, is
without basis in fact.
We turn to the constitutional question.
Tbe Workmen's Compensation Law of New
York establisbea forty-two groups of
hazardous employments, defines "employee"
as a person engaged in one of these employ-
ments upon the premisea, or at the plant,
or In tbe course of his employment away
from tbe plant of his employer, but exclud-
ing farm laborers and domestic servants;
defines "employment" aa including employ-
ment only in a trade, business, or occupa-
tion carried on by the employer for pecu-
niary gain, "injury" and "personni injury"
as meaning only accidental injuries arising
out of and in the course of employment, and
such disease or infection as naturally and
unavoidably may result therefrom; and re-
quires every employer subject to its pro-
visions to pay or provide compensation ac-
cording to a prescribed ached ule for tlia
diaability or death of his employee reaulb-
ing from an accidental personal injury aris-
ing out of and in the courae of the employ-
ment, without regard to fault as a cause,
except where the injury is occasioned by
the wilful intention of the injured employ-
ee to bring about the injur; or death of..^
himself or of another, or where it results ^
solely'trom the intoxication of the injured*
employee while on duty, in which caaea
neither the injured employee nor any de-
pendent shall receive compensation. By §
11 the prescribed liability is made exclu-
sive, except that, if an employer fail to se-
cure the payment of compensation as pro-
vided in g 60, an injured employee, or bis
legal representative, in caee death results
from the injury, may, at his option, elect
to claim compensation under the act, or to
maintain an action in the courts for dam-
ages, and in such an action it shall not lie
necessary to plead or prove freedom from
emitributory negligence, nor may tbe de-
fendant plead aa a defense that the injury
was caused by the negligence of a fellow
servant, that the employee assumed the
,A_^OOglC
1««.
KBW YORK a B. C». T. WHITE.
Tialc of his employment, or that the Injury
waa due to contributoTj negligence. Com-
penwtion under the aet Is not regulated
itf the meaaure of damage* applied In negli-
gence suita, but, fn addition to proriding
jnedical, surgical, or other like treatment,
it ii based Kolelv on loss of earning power,
'bdng graduated according to the average
weekly wages of the injured employee and
■the character and duration of Uke disabil-
ity, whether partial or total, temporary or
permanent; while in ease the injury causes
-death, the compensation is known at a
•death benefit, and Includes fuucTal expense*,
not exceeding $]O0, payments to the surviv-
ing wife (or dependent husband) during
-Widowhood (or dependent widowerhood) of
k percentage of the average wages of the
-deceased, and if there Im a survtving child
■or children under the age of eighteen years
an additional percentage of such wages
for each child until that age is reached.
There are provisions invalidating agre«-
ments by employees to waive the right to
compensation, prohibiting any assignment,
release, or commutation of claims for com-
pensation or benellts except as provided by
the act, exempting them from the claims
of creditors, and requiring that the com-
4t pensatJoD and beneSts shall be paid only to
4 employees or their dependents. ^^oviBion
Is made for the establishment of a Work-
men's Compensation Commission > with ad-
ministrative and judicial functions, includ-
-ing authority to pass upon claims to com-
pensation on notice to the parties inter-
ested. The award or decision of the Com-
mission is msde subject to an appeal, on
■questioDS of law only, to the appellate divi-
■ion of the supreme court for the third de-
partment, wiU) an ultimate appeal to the
-court of appeals in cases where such an ap-
peal would lie in civil actiona. A fund la
■created, known as "the state insu ranee
fund," for the purpose of insuring employ-
-cra against liability under the law, and as-
suring to the persons entitled the compen-
•ation thereby provided. The fund is made
up primarily of premiums received from em-
ployers, at rates fixed by the CommisBion
in view of the hazards of the different
•classes of employment, and the premiums
■re to be baaed upon the total pay roll and
number of employees in each class at the
lowest rate consistent with the maintenance
-Af a solvent state insurance fund and the
-crestioD of a reasonable surplus and reserve.
Elaborate provisions are laid down for the
-administration of this fund. By | 60, each
-employer Is required to secure compensa-
tion to his anployees In on* of tha follow-
ing waye: (I) By insurli^ and keeping
insured the payment of suoh compensation
in the state fund; or (2) through any stock
corporation or mutual association author-
ized to transact the business of workmen's
compensation Insurance in the state; or
(3) "by furnishing satisfactory proof to the
Commission of his financial ability to pay
such compensation for himself, in which
case the Commission may, in its discretion,
require the deposit with the Commission of
securities of the kind prescribed in § 13 of
the Insurance Law, in an amount to be
determined by the Commission, to secureS
Ms'liability to psy the compensation pro-?
vided in this chapter." If an employer fails
to comply with this section, he is msde
liable to a penalty in an amount equal to
the pro rata premium that would have been
payable for insurance In the state fund
during the period of noncompliance; beiiides
which, bis injured employees or their de-
pendents are at liberty to maintain an ac-
tion for damages in the courts, aa prescrilied
by I 11.
In a previous year, the legislature enacted
a compulsory compoisation law applicable
to a limited number of specially hazardous
employments, and requiring the employer to
pay compensation without regard to fault.
Laws 1010, chap. 6^^. This was held by
the court of appeals in Ives v. South Buifalo
R, Co. 201 N. y. 271, 34 L.R.A.{N.S.) 182,
M N. E. 431, Ann. Cas. 1912B, 156, 1 N. C.
C. A. 617, to be Invalid because in conflict
with the due process of taw provisions of
the state Constitution and of the 14th
Amendment. Thereafter, and in the year
I&13, a constitutional amendmeot was
adopted, effective January 1, 1S14, declor-
"Nothing contained In this Constitution
shall be construed to limit the power of
the legislature to enact laws for the pro-
tection of the lives, health, or safety of em-
ployees; or for the payment, either by em-
ployers, or by employers and employees or
otherwise, either directly or through a state
or other system of insurance or otherwise,
of compensation for injuries to employees or
for death of employees resulting from such
injuries without regard to fault as a causa
thereof, except where the Injury is occa-
sioned by the wilful intention of the injured
employee to bring about the injury or death
of himself or of another, or where the in-
jury results solely from the Intoxication of
the injured employee while on duty; or for
the adjustment, determination and settle,
ment, with or without trial by jury, of
issues which may arise under such legisla-
tion; or to provide that the right of such
compensation, and the remedy therefor shall
,A_.OOglC
.tfiO
17 8CPSEUB OOUBT RBFORXEB.
Ooi, Ikuir
Tbe axeliuivc of ftll>atlier rlgltU ud rene-
dies for Injuriea to emplojeea or for death
FMulting from flocli Injuries; or to pro-
Tide thkt the UQOunt of such compenutiou
for deftth ihall not exceed » llxed or deter-
minkble lum; provided that all manege paid
hj an employer to hia employees or Uieir
legal repreaentatiTea, hj reaion of the enact-
ment of any of the laws herein authorized,
shall be held to Iw a proper charge in the
cost of operating the builnesa of the cm-
In December, 1&13, the legislature enacted
the law DOW under consideration (Laws
iei3, ohap. 810], and in 1914 re-enacted it
(Laws 1914, chap. 41) to take efTect as to
payment of compensation on July 1 in that
year. The act was austained by the court
of appeals as not Inconsistent with the I4th
Amendment in Jensen t. Southern P. Co.
215 N. T. 614, L.RJ..19ieA, 403, 109 N.
E. eOO, Ann. Cas. 19166, 276; and that
decision was followed In the case at bar.
The scheme of the act is so wide a de-
parture from common-law standards re-
specting the responsibility of employer to
employee that doubts naturally have been
raised respecting Ita constitutional validity.
Hie adverse considerations urged or sug-
gested in this case and in kindred cases
submitted at the same time are: (a) That
the employer's property la taken without
due process of law, because he is subjected
to a liability for compensation without re-
gard to any neglect or default on hia part
or on the part of any other person for whom
he is responsible, and in spite of the fact
that the injury may be solely attributalile
to the fault of the employee; (b) that the
employee's rights are interfered with, in
that he is prevented from having compen-
sation for injuries arising from the em-
ployer's fault commensurate with the dam-
ages actually sustained, and is limited to
the measure of compensation prescribed by
the act; and (e) that both employer and
t- employee are deprived of their liberty to
H acquire property by being prevented from
making such 'agreement as they chooEe re-
specting the terms of the employment.
In support of the legislation, it is said
that the whole common-law doctrine of em-
ployer's liability for negligence, with its
defenses of contributory negligence, fellow
servant's negligence, and assumption of risk.
Is based upon fictions, and is Inapplicable
to modem conditions of employment; that
In the highly organised and hacardous in-
dustriea of the present day the causes o(
accident are often so obscure and complex
that in a material proportion of cases It is
tmpoaslbie by any method correctly to as-
ecrtaln the facts necessary to form an
portion Oa expensa and delay reqnlred for
such ascertainment amount In effect to ft.
defeat of justice; that, under the present
system, the Injured workman is left to bear
the greater part of Industrial accident loas^
which, because of his limited Income, ho is
unable to sustain, so that he and thoae de-
pendent upon him are overcome by poverty
and frequently become a burden upon pnblia
or private charity; and that litigation Is un-
duly costly and tedious, encouraging cor-
rupt practices and arousing antagonisms-
1>etween employers and employees.
In considering the constitutional ques-
tion. It is necessary to view the matter froAi
the standpoint of the employee as well oa
from that of the employer. For, while
plaintiff In error la an employer, and can-
not succeed without showing that its rights
as such are infringed (Plymouth Coal Co. v.
Pennsylvania, 232 U. 8. SSI, S44, 68 L. ed.
713, Tig, 34 Sup. Ct. Bep. 369; JelTrey Mfg.
Co. T Blagg, 235 U. 8. B71, 676, (59 L. ed.
354, 368, 36 8up. Ct Rep. 187, 7 N. C. C.
A. 670), yet, as pointed out by the court of
appeals In the Jensen Case (215 N. Y.
526), the exemption from further liability
Is an essential part of the scheme, so that
the statute. If Invalid as against the em>
ployee. Is invalid as against the employ^'.
The close relation of the rules governing.
responsibility as between employer and em-a
ployee to the fundamental righta*ot liberty*
and property is, of course, recognized. But
those rulee, as guides of conduct, are not be-
yond alteration by legislation In the publia
interest. No person has a vested interest
in any rule of law, entitling him to insist
that It shall remain unchanged for his bene-
fit. Munn v. Illinois, 94 U. 8. 113, 134, 24
L. ed. 77, B7; Hurtado v. California, 110
U. B. 616, 632. 28 L. ed. 232, 237, 4 Sup.
Ct Rep. Ill, 292; Martin t. Pittaburg 4 L.
E. R. Co. 203 U. S. 284, 294, 61 L. ed. 184,
191, 27 Sup. Ct Rep. 100, 8 Ann. Cas. 87;
Second Employers' Liability Cases (Mondou
V. New York, N. II. k H. R. Co.) 223 U.
S. 1, 60, 66 L. ed. 327, 348, 38 L.R.A.(N.S.);
44, 32 Bup. Ct. Rep. 169, 1 N. C. C. A. 375;
Chicago & A. R. Co. V. Tranbarger, 238 U.
S. 67, 76, 69 L. ed. 1204, 1210, 36 Sup. Ct,
Rep. 678. The common law basea the aa-
ployer's liability for Injuriea to the employes
upon the ground of negligence; but negli-
gence is merely the disrc^rd of some duty
imposed by law ; and the nature and extent
of the duty may be modified by l^slstion,
with Dorresponding change in the test of neg-
ligence. Indeed, liability may be imposed
for the consequences of a failure to comply
with a statutory duty, irrespective of n^li-
gence In the ordinary sense; safety wp*
pllance acts being a famlliw Inatauce. "'
eurate Judgment, and In a atlll larger pro- Louis, I. M. 4 8. R. Ca T. Taylor, 810 U.
.A^iOOglC
ISIO.
NZW YORE C. R. 00. T. WHUK.
Ul
8. 861, 206, 68 L. ed. 1D61, lOSB, 28 Sap.
CL Rep. 6ie, 21 Am. Seg. Rep. 494; TexM
ft F. R. Co. V. RigBbj, Zil V. S. 33, 39, 43,
00 L. «d. 874, 877, 878, 36 Sup. Ct. Rep
482.
Tbe fault mnf be that of the eniplofer
himself, or — moat frequently — thkt of tJi-
other for whose conduct he ie made respon-
■ible according to the nuuim respondeat
•nperior. In the latter case the employer
may be eutirely blamelcBa, may have exer-
cised the utmost human foreHight to aafe-
guard the employee; yet, if the alter ego,
while acting within the scope of his duties,
be negligent, — in diaobedieoce, it may be, of
the employer's positive and apeciSo com-
mand,— the employer is answerable for the
coDsequenceB. It e&innot be that the rule
embodied in the maxim ia unalterable by
legislation.
The immunity of the employer from re-
sponsibility to an employee lor the negli-
gence of a fellow employee U of compara-
^ tively recent origin. It being the product of
2 the judicial conception that the probability
• of a fellow workman's negligence Is one of
the natural and ordinary riaks of the occu-
pation, assumed by the employee and pre-
sumably taken into account in the fixing of
his wages. The earliest reported eases are
Murray v. South Carolina R. Co. (1S41)
1 McMulL L. 38G, 3Q8, 39 Am. Deo. 288;
Farwell t. Roeton ft W. R, Corp. (1842) 4
Met. 4S, 67, 38 Am. Dm. 339, 16 Am. Neg.
Cas. 407; Hutchinson t. York, N. ft B. R.
Co. (1850) L. R. 6 Eidi. 343, 361, 10 L.
J. Exch. N. S. 20B, 20S, 14 Jur. 837, 840,
t Eng. Ry. ft C. Caa. 680; Wlgmore v. Jay
(1850) L. R. 6 Exch. 354, 10 L. J. ^oh.
N. S. 300, 14 Jur. 833, 841; Barbmshill
Coal Co. T. Reid (1853) 3 Macq. H. L. Caa.
£66, 284, 2SS, 4 Jur. K S. 767, 6 Week.
Rep. 664, 19 Eng. Rul. Caa. 107. And see
Randall v. Baltimore ft 0. R. Co. 109 U,
S. 478, 483, 27 L. ad. 1003, 1006, S Sup. Ot
Rep. 322; Korthem P. R. Co. t. Herbert,
lis U. S. 042, 647, 29 L. ed. 766, 768, 6
Sup. Ct Rep. 690. The doctrine baa pre-
vailed generally throughout the United
Statea, but with material differences in dif-
ferent jurisdictione respecting who should
be deemed a fellow servant and who a vice
principal or alter ego of the master, turn-
ing sometimes upon refined distinctions as
to grades and departments In the employ-
ment. See Knutter v. New York ft N. J.
Teleph. Co. 67 N. J. L. 64Q, 6S(MIG3, 63
L.R.A. S08, 62 AU. 665, 12 Am. N«. Rep.
100. It needs do argument to show that
such a rule is subject to modification or
alirogation by a atato upon proper occaaion.
The same may be said with respect to the
gmeral doctrine ol assumption of risk. By
t law the employee
risks normally incident te the oeonpaUoK
in which he voluntarily engages; other and
extraordinary risks and those due to the
employer's nt^Iigence he does not ssenms
UDtU made aware of them, or until they be-
come so obvious that an ordinarily prudent
man would observe and appreciate them;
In either of which cases be does aiaume
them. If he oontlnues in the employment
without obtaining from the employer an
aBHurance that the matter will be remedied;
but if be receive such an assurance, then,
pending performance of the promise, the em-
ployes does not, in ordinary cases, assumes
the special risk. Seaboard Air Line R. Co. g
V. Horton, 233. U. S. 492. 504, 68 L. ed. '
1062, 3070, L.RJL1016C, 1, 34 Sup. Ct Rep.
635, Ann. Cue. 1915B, 476, 8 N. C.
C. A. 834, 239 V. 8. 695, 509, 60 L. ed
453, 461, 3a Sup. Ct. Rep. ISO. Plainly,
these rules, as guides of conduct and tests
of liability, are subject to change in the
exercise of the sovereign authority of the
So, also, with respect to contributory neg-
ligence. Aside from injuries intentionally
self-inflicted, for which the statute noder
consideration affords no oompensaticm, it is
plain that the rules of law upon the subject,
in their bearing upon the employer's respon-
aibility, are subject to legislative changei
for contributory negligence, again, involve!
a default in some duty resting on the em-
ployee, and his duties are subject to modlfi-
It may be added, by way of reminder,
that the mtlre matUr of liability for death
caueed by wrongful act, both within and
without tha relation of employer and em-
ployee, is a modem statutory innovation, in
which the states differ as to who may sue,
for whose benefit and tbe measure of dam-
agea.
But it la not necessary to extend the dis-
eussion. This oourt repeatedly has upheld
the authority of the states to establish by
legislation departures from tbe fellow-eerr-
ant rule and other common-law rules affect-
ing the employer's liability for personal in-
juries to tbe employee. Missouri P. R, Co.
T. Mackey, 127 U. S. 206, 208, 32 L. ed.
107, 108, 8 Sup. Ct. Rep. 1161; Minneapolla
ft St. L, R. Co. V. Herrlck, 127 U. S. 210,
32 L. ed. 109, S Bup. Ct. Hep. 1176; Min-
neeoU Iron Co. v. Kline, 199 U. S. 593, 598,
60 L. ed. 322, 826, 26 Sup. Ct Rep. 169, 19
Am. Heg. Rep. 625; Tullis v. Lake Erie ft
W. R. Co. 176 U. S. 348, 44 L. ed. 102, 20
Sup, Ct. Rep. 136; Louisville ft N. R. Co.
V. Melton, 218 U. S. 36, 63, 64 L. ed. 921,
028, 47 L.RA.(N.S.) 84, 30 Sup. Ct. Rep.
6T6; Chicago, I. ft L. R. Co. v. Hackctt,
228 n. S. GGO. 67 L. ed. 066, 33 Sup. Ct
Rep. 681; Wilmington SUr Min. Co. t. Tut-
A^iOOglC
S7 SUPREME COUBT BBPORTBB.
ton, 20S n. B. 60, 73, SI L. «d. 70S, 71S,
27 Sup. Ct. Rep. 412; MiiBOuri P. R. Co.
V. Caatle, 224 U. 8. HI, G44, 5S L. ed. STG,rt)he nU of wa^B, to the fixed reapoDsibilitj
878, 82 Sup. Ct. Rep. 606. A corrraponding
power on the part of CoogrBHi, when legia-
lating within Its apprc^riate aphere, was
sustained in Second Employers' Liability
Canes (Mondou v. New York, N. H. k H.
R. Co.) 223 U. 8. 1, 56 L. ed. 327, 38 L.R.A.
(N.S.) 44, 32 Sup. Ct. Rep. 189, 1 N. C.
C. A. 870. And aee El Paso t N. E. R. Co.
T. Gutierrez, 216 U. S. ST, 97, G4 L. ed.
106, 111, 30 Sup. Ct Rep. 21; Baltimore
& O. R. Co. T. Interstate Commerce Com-
mission, 221 U. S. 612, 610, S5 L. ed. 878,
9 883, 31 Sup. Ct. Rep. 621.
* ■ It is true that in the c&se of the statutes
thus sustained there were reasons render-
ing the particular departures appropriate.
Nor Is it necessary, for the purposes of
the present case, to say that a state might,
without viol en ee to the constitutional guar-
anty of "due process of law," suddenly set
aside all common-law rules respecting lia-
bility OS between employer and employee,
without providing a reasonably Just sub-
stitute. Considering the vast industrial
organ iiation of the state of New York,
for instance, with hundreds of thousands
of plants and millions of wage
each employer, on the me hand, having
embarked his capital, and each employee,
on the other, having taken up his partio-
ular mode o( earning a liTetihood, in re-
liance upon the probable permoneni
an established body of law governing the
relation, it perhaps may be doubted whether
the state could abolish all rights of action,
on the one hand, or all defenses, on the
other, without setting up something ade-
quate In their stead. No such question is
here presented, and we intimate no opinion
upon it. The statute under consideration
sets aside one body at rules only to estab-
lish another system in its place. If the
employee is no longer able to recover
much as before in case of being injured
through the employer's negligence, he is en-
titled to moderate compensation in all cases
of injury, and has a certain and speedy
remedy without the difficulty and expense
of establishing negligence or proving the
amount of the damages. Instead of assum-
ing the entire consequences of all ordinary
ri^B of the occupation, he assumes the con-
•equences. In excess of the scheduled com-
pensation, of risks ordinary and ertraordl-
nary. On the other hand, if the employer
{■ left without defease respecting the ques-
tion of fault, he at the same time is assured
that the recovery is limited, and that it
goes directly to the relief of the designated
beneficiary. And jttSt aa the amployf
■umptJon of ordinary rlaka at common lawg
presumably was token into account in fixing n
of the employer, and the modified assump-
tion of risk by the employee under the new
system, presumably will be reflected in
the wage scale. The act evidently Is intend-
ed as a just settlement of a diffleult prob-
lem, affecting one of the most important of
social relations, and it is to be judged liv
its entirety. We have said enough to demon-
strate that, In such an adjustment, the par-
ticular rules of the common law affecting
the subject matter are not placed by the
14th Amendment beyond the reach of the
lawmaking power of the state; and thus we
are brought to the question whether the
method of compensation that is established
as a substitute transcends the limits of per-
missible state action.
We will consider, first, the scheme of com-
pensation, deferring for the present the
question of the manner in which the em-
ployer Is required to secure payment.
Briefly, the statute imposes liability upon
the employer to make compenaation for dis-
ability or death of the empli^ee resulting
from accidental personal Injury arising out
of and in the course of the employment,
without regard to fault as a cause except
where the injury or death is occasioned by
the employee's wilful intention to produce
it, or where the injury results solely from
his Intoxication while on duty; it grsdustes
the compensation for disability according to
a prescribed scale based upon the loss of
earning power, having regard to the previ-
ous wage and the character and duration
of the disability; and measures the death
benefits according to the dependency of the
surviving wife, husband, or infant children.
Perhaps we should add that it has no retro-
spective effect, and applies only to cases
arising some months after its passage.
Of coarse, we cannot ignore the question
whether the new arrangement is arbitrary
and unreasonable, from the standpnint of
natural justice. Respecting this, it is im-^
portant to be observed that the act appliese
only to'dlsabling or fatal pcraanal injuries ■
received In the course of hazardous employ-
ment in gainful occupation. Reduced to ita
elements, the situation to be dealt with is
this: Employer and employee, by mutual
consent, engage in a common operation in-
tended to be advantageous to both; the em-
ployee is to contribute his personal services,
and tar these is to receive wages, and, ordi-
narily, nothing more; the employer is to
furnish plant, facilities, organization, capi-
tal, credit. Is to control and manage the
operation, paying the wages and other ex-
penses, disposing of the product at such
prices aa he can obtain, taking all the prof-
,A_.OOglC
IDIS.
KEW TOBK C R. 00. T. WHITB.
Um, If anjr thare b^ and, of neceMity, bear-
ing the entire loftBsa. Id the iiK.ture of
things, there is more or Ism of a prohabllity
that the employee may lose his life through
■ome accidental Injury arialng out of the
employment, leaving his widow or children
deprived of their natural eupport; or that
he may lustaiu an injury not mortal, but
resulting in his total or partial disablement,
temporary or permanent, with correspond-
ing impairment of earning capacity. The
physlcaj suffering must be borne by the em-
ployee alone; the laws of nature prevent
this from being evaded or shifted to an-
other, and the statute malces no attempt to
ftfford an equivalent In compeniation. But,
besides, there in the loss of earning power,
— a loss of that which stands to the em-
ployee aa his eapital in trade, nils is a
losa arising out of the business, and, how-
ever it may be oharged up, is an expense of
the operation, as truly at the cost of re-
pairing broken machinery or any other ex-
pense that ordinarily la paid 1^ the em-
ployer. Who is to bear the charge T It is
plain that, on grounds of natural justice,
it is not unreasMiable for the state, while
relieving the employer from responsibility
for damages measured by common-law
•t&ndarda and payable in cases where ho or
those for whose conduct he is answerable
are found to be at fault, to require him to
contribute a reasonable amount, and ac-
2 cording to a reasonable and definite scale,
P by way of compensation for the loss of earn-
ing power incurred in the common enter-
prise, irrespective of the question of n^U-
gence, instead of leaving the entire loss to
rest where it may chance to fall, — that is,
upon the Injured employee or hia depend-
ents. Nor can It be deemed arbitrary and
unreasonable, from the standpoint of the
employee's Interest, to eupplant a system
tinder which he assumed the entire risk of
injury in ordinary cases, and in others had
a right to recover an amount more or less
speculative upon proving facts of negligence
that often were difficult to prove, and enb-
stitute a system under which, in all ordi-
nary cases of accidental injury, he is sure
of a definite and easily ascertained compen-
sation, not being obliged to assume the
entire loss In any case, but in all cases as-
suming any loss beyond the prescrihed
Much emphasis is laid upon the critidem
that the act creates liability without fault.
This ia sufficiently answered by what haa
been said, but we may add that liability
without fault is not a novelty in the law.
The common-law liability of the carrier, of
tiie Innkeeper, or him who employed fire or
Other dangerous agency or harbored a mis-
ehlevons animal, was not dependent alto-
gether upon questions of fault or n^llgenea.
Gtatutes imposing liability without fault
have been sustained. St. Louis & S. F. B.
Co. ▼. Mathews, ISG U. B. 1, 22, 41 L. «d.
Sll, 619, 17 Sup. Ct. Bep. 243; Chicago,
R. I. k P. R. CO. V. Zernecke, 183 U. a
682, S86, 46 L. ed. 339, 340, 22 Sup. Ct
Rep. 229.
We have referred to the maxim, respond-
eat superior. In a well-known English
case, Hall v. Smith, 2 Ring. 160, 160, 130
Eng. Reprint, 2S5, S J. B. Moore, 220, 2 L.
J. C. P. 113, this maxim was said by Best,
Ch. J., to be "bottomed on this principle,
that be who expects to derive advantage
from an act which is done by another for
him, must answer for any injury which a
third person may sustain from it." And
this view haa been adopted in New York.
Cardot T. Barney, 63 N. ¥. 281, 287, 20 Am.
Rep. 633. The provision for compulsorya
compensation, In the act under considera-S
ti(m,*cainnot be deemed to be an arbitrary*
and unreasonable application of the prin-
ciple, so as to amount to a deprivation of
the employer's property without due process
of law. The pecuniary loss resulting from
the employee's death or disablement must
fail somewhere. It results from something
done in the course of an operation from
which the employer expects to derive a
profit. In excluding the question of fault
as a cause of the injury, the act In effect
disregards the proximate cause and looks
to one more remote, — the primary cause, as
it may be deemedj—and that is, the em-
ployment itself. For this, both parties are
responsible, since tbey voluntarily engage
in it as coad venturers, with personal in-
jury to the employee as a probable and for^
seen reault. In ignoring any possible negli-
gence of the employee producing or
contributing to the injury, the lawmaker
reasonably may have been influenced by the
belief that, in modem industry, the utmost
diligence in the «nployer's service is in some
degree inconsistent with adequate care on
the part of the employee for his own safety;
that the more intently he devotes himself
to the work, the less he can take precau-
tions for his own security. Ar.d it is evi-
dent that the consequences of a, disabling
or fatal injury are precisely the same to
the parties Immediately affected, and to the
community, whether the proximate cause
be culpable or innocent. Viewing the entire
matter, it cannot be pronounced arbitrary
and UDreasonable for the state to impose
upon the employer the absolute duty of mak-
ing a moderate and deflnite compensation
in money to every disabled employee, or.
In case of his death, to those who were en-
titled to look to him for support. In lieu of
,A_^OOglC
87 SDPBEHK OOUBT BXPORTER.
Ooi; 1
the
'Isw lUbnity eonflned to c
This, of conrae, ia not to 8*7 that &ny
■oala of compcnBatton, bowever inaignifl-
cant, on th« one Ikand, or onerous, on the
e other, would be supportable. In this eiue,
§ no criticiam is made on the ground that
■ the compensation* prescribed hj the statute
In question is unreasonable in amount,
either in general or in the particular case.
Anj question of that kind may be met when
But, it is said, the otatute etrlket at the
fundamentals of conetitutional freedom of
contract; and we are referred to two recent
declarations b; this court. The first is
this: "Included in the right of personal
liberty and the right of private property —
partaking of the nature of each — is the
right to make contracts for the acquisition
of property. Chief among such contracts is
that of personal employment, by which
labor and other services ore exchanged for
money or other forma of property. If this
right be struck down or arbitrarily inter-
fered with, there is a substantial impair-
ment of liberty in the long-established con-
stitutional sense." Coppage r. Kansas, 236
U. S. I, 14, 60 L. ed. 441, 44fl, L.ILl.lgiOC,
geO, 35 Sup. Ct Kep. 240. And this is the
other: "It requites no argument to show
that the right to work for a living In tlie
common occupations of the eommunity la
of the very essence of the personal freedom
and opportunity that It was the purpose of
the [i4tb] Amendment to sacnre." Tniax
V. Raich, 239 U. S. 33, 41, 60 L. ed. 131, 136,
L.RAiei8D, 645, 36 Btqi. Ct. Rep. 7.
It ia not our purpose to qualify or weaken
either of these declarations in the least.
And we recognize that the leglslatiai under
review does measurably limit the freedom
of employer and employee to agree respect-
ing the terms of employment, and that it
cannot be supported except on the ground
thst it is a reasonable exercise of the police
power of the atat«. In our opinion it is
fairly supportable upon that ground. And
(or this reasoo: The subject matter in re-
spect of which freedom of contract Is re-
stricted is the matter of compensation for
human life or limb lost or disability In-
curred in the course of hazardous employ-
ment, and the pubtio has a direct interest
in this as affecting the common welfare.
"The whole ia no greater than the sum of
all the parts, and when the individual
g health, safety, and welfare are sacrificed
• or neglected, the state'must suffer." Holden
v. Hardy, 169 U. S. 366, 3B7, 42 L. ed. 780,
193, IB Sup. CL Rep. 3S3. It cannot be
doubted thst the state may prohibit and
puniah aelf-maiming and attempta at sui-
cide; it may prohibit a man from bartering
away hia life or hia persDnal Kcarltj; In-
deed, the right to these is often decUnd, ia
' ills of rights, to be "natoral and Inallen-
able;" and the authority to prohibit ooo-
tracts made in derogation of a lawfully-
established policy of the atat« respecting
oompensatlon for accidental death or dli-
abling personal Injury is equally elear.
Chicago, B. ft Q. R. Co. T. McOuire, 219 U.
S. 649, 671, 6S L. ed. 328, 340, 31 Sup. Ct
Rep. 260 ; Second Employers' Liability
Cases (Mondou r. New Yorlc, N. H. A H.
R. Co.) 223 U. S. 1, 52, 66 L. ed. 827, 347.
38 L.R.A.(N.a.) 44, 32 Sup. CL Bep. 169,
1 N. C. C. A. 876.
We have not overlooked the criticism that
the act imposes no rule of conduct upon the
employer with respect to the conditions of
labor in the various luduetries embraced
within its terms, prescribes no duty with
rcgnrd to where the workmen shall work,
the character of the machinery, tools, or ap-
pliances, the rules or regulations to be es-
tablished, or the safety devices to be main-
tained. Tbta statute does not ooocem itself
with meaanres of prevention, which pre-
sumably are embraced in other laws. But
the interest of the public Is not eonflned
to these. One of the gronndJ of it* con-
cern with the continued lite and earning
power of the Individual is Its interest in
the prevention of pauperism, with its con-
comitants of vice and crime. And, in onr
opinion, laws r^utating the responsibility
of employers for the injury or death of em-
ployees, arising out of the employment, bear
so close a relation to the protection of ths
lives and safety of those concerned that they
properly may be r^arded aa coming within
the category of police regulations. Bhcr-
kjck T. Ailing. 03 U. S. 99, 103, 23 L. ed.
819, B20; MiB»>url P. R. Co. r. Castle, 224
V. S. 541, 546, 66 L. ed. 876, 870, 32 Sup.
Ct. Rep. 606.
No question is Tnade but that the pro-
cedural provisions of the set are amply
adequate to afford the notice and oppor-«
tnnity to be heard required by the 14tfa§
Amendment. The denial of a trial by Jury*
is not Inconaistent with "due process."
Walker v. Bauvinet, 92 U. S. 90, 23 L. ed.
678; Frank v. Mangum, 237 V. B. 309, 340,
BS L. ed. OGO, 985, 36 Sup. Ct. Rep. 682.
The objection under ths "equal protec-
tion" clause is not pressed. The only ap-
parent basis for it is in the exclusion of
farm laborers and domestic servants from
the scheme. But, manifestly, tliis cannot be
judicially declared to be an arbitrary daa-
siflcation, since it reaaonably may be con-
sidered that the riaka Inherent In tbeaa
occupationa are exceptionally patent, simple,
and familiar. Klssouri, E. ft T. R. Co. v.
Cade, 233 D. & 042, 660, 68 L. ed. 1135,
D,at,z.d-,.'^-.00'^IC
HAWEIVB r. BLEAKLY.
We eonelade that th« prescribed •chetne
of compuluiij compenution Is not rtpvig-
nut to the proTiaiona of the 14th Amend-
ment, And Are bronght to conatdei', next, the
menner in whieh the emplojer U required
to eecnre pajnent of the oompenULtion. Bjr
% CO, thU amy be done in one of three wayi!
(n) Btate Ineuruiee; (b) Innmnce with an
nntboriied lunntnce eorporatlon or aaw-
elation; or (c) bjr a deposit of ■eenrltiea.
The record ahoira that the predecesior of
plaintiff in error choie the third method,
and, with the sanction of the Commlirion,
deposited aecurities to the amount of $300,-
000, under g SO, and $30,000 In caah aa a
dqioait to aeeure prompt and convenient
payment, onder | 26, with an agreement to
make a further deposit if required. This
waa aecompaaled with a reaervation of aiJ
contentions aa to the Invalidtty of the aet,
and had not the eSeet of preventing plain-
tiff In error from raising tlie queationa we
liave dieeuaeed.
^e ayatem «f contpulaor; compoisation
having been found to be within the power
of the state, it la within the limit* of per-
misaible regulation. In aid of the lystem, to
require the emplojer to fumlah aatisfae-
toTj proof of hU financial ability to pay the
compenaation, and to deposit a reasonable
amount of securities for that purpose. Tbe
a third clause of ) 60 hag not t>een, and pre-
r sumably wiil'not be, construed ao as to give
an unbridled dlacretlon to the Conunla-
alon ; nor is It to be presumed that solvent
emplojera will tie prevented from becoming
self-insurers on reasonable terms. No ques-
tion is made but that the terms imposed
upon this railroad company were reason-
able in view of the magnitude of its opera-
tiona, the number of its employees, and the
amount of its pay roll (about (50,000,000
annually)) hence no criticism of the prao-
tfcal effect of the third clause is suggested.
This being so, it is obvious that this ease
presents no question as to whether the state
might, consisUntl; with the ]4th Amend-
ment, compel employers to effect Insurance
•CcordtQg to either of the plans mentioned
In the first and second clauses. There is
no such compulsion, slnee self- Insurance un-
der the third olause presumably is open to
all employers on reasonable terms that it is
within the power of the state to impose.
K^arded aa optional arra.ngements, for ac-
ceptance or rejection by employers unwill-
ing to comply with that clause, the plana of
Inaurance are unexceptionable from the con-
atltntlonal atandpoiut. Manifestly, the em-
ployee la not Injuiionaly affected in a con-
Rtitutional sense by the provisions giving
to the employer an option to secure pay-
ment of the compensation In either of tbo
modes prescribed, for there Is no preenmp-
tion that either will prove inadequate t*
aaf^^iard the employee's intereats.
Judgment affirmed.
JOHN L. BUIAKLY, Auditor of the StaU
of Iowa, and Warren Garat, loira Indus-
trial Commissioner.
OoMBTrrnnoiiAL Law 4=3301 — Ua»nn
Aitjt Sebvant «=S47— Dux Pboobbs ow
Liw — WoBKinri's Coupihsatiok —
Aboluhino Couuoit-Law DsnFaES —
PBESUHPnOlt OF UnDDK InlXITEHOB.
1. There Is no denial of due process of
law in the provisions of the Iowa elective
Workmen's Compensation Act (Iowa Iaws
SCth Gen. Aasem. chap. 147), that an em-
ployer rejecting the compensation features
of that act shall not escape liability for per-
sonal injury sustained by an employee aris-
ing out of, or in the usual course of, the
employment, because the employee assumed
the risk of the employment, or because of
the employee's negligence, unless this was
wilful and with the intent to cause the in-
inry, or was the result of intoxication, or
because the Injury was caused by the negli-
gence of a eoemployee, and that in an action
agalnat such rejectinf^ employer it shall be
presumed that uie injury was the direct re-
sult of his uegligence, and that he must
assume the burden of proof to rebut snch
preeumptioE
[Bfl. Nota.-_„
Law, Cant Dig. H MS-WO, H
COHSTTTDTiONai. Law ^=>311~Dni Pno-
CESa or Law— Gbbatino PBtauuFnoR—
RxoDLATmo BtiBDcn or Psoor.
14th Amend., estabiiah bv statute presump-
tions and rules . respectfiig the burden of
proof, provided that the statute ha unt un-
reasonable in Itself, and not conclusive of
"le rights of a party,
[Bd. Nota— Tor oUir cases; ■•• Oonstltirtlonal
Law, Cent. Dlr | MS.]
CoNsnTunoNAi. Law *=>811— Dci Pbo-
OEss or Law — Wobxiocn'b CaimifBA-
noH Act— RwicnoN bt BufloiI.
the Iowa Workmen's Compensatioi
(Iowa Laws 35tb Gen, Assem. chap. 147)
Uiat where an employee electa to reject the
act he shall state in an affidavit who. If any-
body, requested or suggested that he should
do so, and that if it be found that the em-
ployer or his agent made such request or
■nggestion, the employee shall be conclu-
sjv^y presumed to have been unduly In-
fluenced and his rejection of the act ahall
be void.
[■d. Not*.— Tor atber e
Law, Cent. Dl(. | ULl
9For olbsT eases Me si
!• teplc ft KET-NDMBER In all Key-Numbend Diswtt A Indes
A^^OOglC
87 SUPREME COURT REPORTER.
Oct. :
CoNffTirnTiOKAi. L*w iS=»301— Dnr Pbo-
CBSS OF Law — WoBswai's Cohpmhba-
4.'The scheme adopted by the Iowa
Workmen's CompenBation Act (Iowa Laws
35th Gen. Asaem. chap. 147), for the ad-
justment of compensation when the em-
f lover ftccepfs ita proviBions, U not In eon-
ravention of U. S. Conat. 14th Amend, u
clothing an adminUtrative body wiOi wi
arbitrary discretion inconsistent with duo
process of law, where the act providea the
measure of oomponsation, the oirciun«tanco8
under which it is to be made, establishea
adminiBtrative machinery for ^plymg thB
statutory measure to the facts of each par-
ticular case, and provides for a hearing be-
fore an administrative tribunal, and for
judicial review upon all fundamenUl and
Jurisdictional questions.
[BA NoU.— For other caw, la* Con.tituUonBl
CoK8TrnmoHAi,_LAw gr^^lS-P^.J"™
w_™ — Li w— Equal Pboibotiok of thb
Liwa-TaiAi. B-t Jury. , , ,.
6. Trial by jury ii not embraced in the
TighU secured hy the 14th Amendment to
the Federal Constitution.
fEd. Noti— For other caaai. ise ConiUtotkinal
lAW, CsBt. DiB. I «».]
JUBT *=1&-H1GHT TO 3vxt Tbiai^Ih
NOBTHWrai TlEBlTOBT.
6. Iowa was not a part of the Kortli-
west Territory, and was therefore unaffeotad
by the guaranty in the Ordinance of Jnly
13, 1787 (1 Stat, at L. fll, note), for tlie
jtovemment of that territory, that the in-
Sahitants thereof shall always b« entitled
to the benefits of trial by Jniy.
[Gtd. Note.— For otbar casM. n* Jury, Oant
Df«. HUM, ITM.]
Stateb »-jO Effect or Aduibsioii— Si
I1B8KDIHa BXTBNSIOH OF OUHHAKOK OF
1787— JUBT Trial.
7. The admission of Iowa to fhs Union
onder the Acta of March S, 1S45 (S Stat, at
L. 742, T6S, chaps. 48 and 70) ; August 4,
1646 (9 SUt at L. 62, chap. 82) ; and De-
cember 2B, 1846 (B Stat, at L. 117, chap.
1), upon an equal footing with the original
states, and the adoption of a state Consti-
tution, abrogated any extension to Iowa
of the guaranties of the Ordinance of July
13, 1787 {1 Stat, at L. 51, note), for the
government of the Northwest Territory, In-
cluding the ri^t to trial by jury, whieh
may have been effected by the Act of June
12, 1338 (5 Stat, at L. 236, chap. 96), es-
tabli^ing a territorial government lor
[Bd. Not*.— ror oUlBT euei. »■ Btatss, Cent
Die. i «■]
OonffriTDTioKAL Lav? «=301— EqUAi. Pbo-
TEcnon of the Laws— Clasoificatiom
— WOBKMEN'S COUTBNSATIOM AOT.
8. Employers are not denied the equal
Srotection of the laws, contrary to U. S.
onat. 14th Amend., 1^ the provisions of
the Iowa Workmen's Compensation Act
(Iowa Laws 36th Gen. Assem. chap. 147),
I 5, that where both employer and employee
reject the act, the liability of the employer
shall be the same as though the emplojree
had not rejected it, thus leaving a rejeoting
emplc^er liable, whether the employe* on
his part accepts or rejects the act, for p«-
son^ injuries su stained by an employe*
arising out of and in the usual conrso of
the employment, with no right to avail him-
self of the fellow-servant rule or the de-
fenses of contributory negligence or assnmp-
tioo of risk, while, by g 3b, if the employee
rejects the act and lie employer accepta It,
the latter may avail himself of such com-
mon-law rules and defenses.
[EM. Note.— For other c»»«, see ConitltntlODal
Lav, Cent. Dig. ID »<S-«£0, tST.]
OoHBTiTUTioiiAi. Law ^=42 — Pzbsohb En-
titled TO Bajbe COBBTrrunoNAL Qdxs-
9. The question of the constitutionality
of the compulsory insurance provisions of
the Iowa elective Workmen's Compensation
Act (Iowa Laws 36th Qen. Assem. ch^.
147), 1 42, VfiU not be considered by tlie
Federal Supreme Court at the instance of
an appealing employer who has not accepted
the aot, where the highest sUte court oon-
strues such act as not compelling an em-
ployer to insure unless he has accepted and
thua become subject to the act.
[Ed Note.— For othar ceiM. ■•• OoDStltatlona]
kv, OnL DlB- II t>. W-l
[No. 35.]
Submitted January 84, 1810. Restored to
docket for oral argument November IS,
1B16. Argued December 80. 1916. De-
dded March «, 1917.
APPEAL from the District Court ol ths
United SUte* for the Southern Dis-
trict of Iowa to review a decree diamiasing
a suit to restrain the enforcement of the
Iowa Workmen's Compensation Act. Af-
firmed.
See same case below, 220 Fed. 378.
The facts are stated in the opinion.
Meesrs. Robert Ryan, James P. Hewitt
and F. G. Ryan for appellant.
Messrs. Henry E. Sampaon and John
_. Clarkson, and Mr. George Coaaon, At-
torney General of Iowa, for appellees. ^
*Mr. Justice Pitney delivered the opinion?
of the court:
This is a suit in equity, brought by ap-
pellant in the United SUtea district court,
to restrain the enforcement of an act of
the general aaaembly of the state of Iowa,g
approved April 18, 1913, relating to em-ji
ployers" liability'and workmen's compen-
sation; It being chap. 147 of Laws of Iowa,
3G G. A.; embraced In Iowa Code, Supp.
of 1913, g 2477ni. The bill seta forth that
complainant is an employer of Uborers
within the meaning of the act, but ha*
rejected Ite provisions, alleges that the
statute is in eontravaition of the Federal
and state Constitutions, etc., etc A m<^
tion to diamiu waa sustained by the dl»-
trict court (220 Fed. 378), and the easo
43>ror other ea
>• Upte * KST-NUHBBS tn aD Xer'MVBkMei !»•<■<■ * tnOeu*
itie.
HA\TKIN8 T. BLEAKLY,
1157
««mM here by direct appeal, liecauM of the
ooDBtitutlonal queition, under § 238, Ju-
dicial Coda [30 Stat, at L. 1167, chap. £31,
CoOip. Stat. 1913, S 1215].
Since the declEion below, the Biipreme
eoart of Icnra, in an able and ezhauative
opinion, has ■uatainnl the act against
constitutional objections, at the SHine time
construing some of its provisions. Hunter
T. Colfax ConsoL Coal Co. 170 Iowa, 245,
L.R.A.— , — , 154 N. W. 1037, 1S7 N. W.
I4S, 11 N. 0. C. A. 886. Hence no objec-
tion under the state Constitution Is here
pressed, and we, of course, accept the con-
struction placed upon the act by the state
court of last resort.
As to private employers, it is an elec-
tive workmen's compensation law, having
the same general features found in the re-
cent legislation of many of the states, sus-
tained by their eourto. See Opinion of
Justices, 209 Mass. 807, 90 N. E. 308, 1
N. C. C. A. 657; Young v, Duncan. 318
Mass. 340. 100 N. B. 1; Borgnis v, Falk Co.
147 Wis. 827, 37 L.R.A.(N.8.) 480, 133 N.
W. 209, 3 N. C. 0. A. 849; State ex rel.
Yaple V. Creamer, 86 Ohio St. 349, 89
L.Ii.A.(N.S,) 894, 07 N. E. 602, I N. C.
C. A. 30; Jeffrey Mfg. Co. v. BUgg, 23S U.
8. 971, 60 L. ed. 304, 35 Sup. Ct. Rep.
107, 7 N. C. C. A. S7D; Sexton v. Newark
Dist Teleg. Co. B4 N. J. L. 85, 80 Atl.
451. 3 N. C. C. A. 689, 80 N. J. L 701, 91
Atl. 1070; Deibeikis v. link-Belt Co. 201
III. 454. 104 N. E. 211, Ann. Cas. 1915A,
241. 5 N. C. C. A. 401; Crooks v. Taiewell
Coal Co. 283 111. 343, 105 N. E. 132, Ann.
Cas. IS15C, 304, 6 N. C. C. A. 410; Victor
Chemical Worka v. Industrial Board, 274
lit. 11, 113 N. E. 173; Matheson v. Min-
Bcapotis Street R. Co. 12B Minn. SSd, L.R.A.
lOlOD. 412, 148 N. W. 71, 6 N. C. C. A.
871 ; Shade v. Ash Orove Lime k Portland
Cement Co. 92 Kan. 140, 139 Poo. 1193, S
N. C. C. A. 763. 93 Kan. 257, 144 Pac
249: Sayles v. Foley, 38 R. I. 434. 96 Att
340; Greene v. Caldwell, 170 Ky. 671, 188 S,
\V. 048; Middleton v. Texas Power & Light
Co. — Tex. — , ]85 8. W. 550. 11 N. C. C.
A. 873. The main purpose of the act ii to
uBstablish, in all employments except those
JJof household servants, farm laborers, and
* casual employed' *a system of compensation
■ceording to a prescribed schedule for all
employees sustaining injuries arising out
of and in the course of the employment,
and producing temporary or pennanent
disability, total or partial, and, in case of
death resulting from such Injuriea, a con-
tribution towards the support of those de-
pendent npon the earnings of the employee;
the eampenBati<Hi in either com to be paid
b7 tba employer tn lien of other liability,
ud Aoeeptonee of the terms of the act b«-
87 S. CU-17.
ing presumed unlesi employer or employn
gives notice of an election to reject them.
To this main purpose no constitutional 6b-
jection is raised, the attack being con-
fined to particular provisions of the law.
Some of appellant's objections are based
upon the ground that the employer is sut>-
jected to a species of duress in order to
compel him to accept the compensation
features of the act, since It is provided
that an employer rejecting these features
shall not escape liability for personal in-
jury sustained by an employee, arising out
of and in the usual course of the employ-
mmt, because the employee assumed the
risks of the employment, or because of the
employee's negligence, unless this was wil-
ful and with intent to cause the injury,
or was the result of intoxication, or be-
oause the injury was caused by the negli-
geRce of a coemployee. But it is clear, as
we have pointed out in New York C. R.
Co. V. White, No, 820, decided this day,
243 v. 8. ISa, 81 L. ed. 867, 37 Sup. Ct Rep.
247, that the employer has no vested right to
have these so-called common-law dcfeneeg
perpetuated for his benellt, and that the
14th Amendment does not prevent a state
from establishing a system of workmen's
compensation without the consent of the
employer, incidentally abolishing the de-
fenses referred to.
The same may be said as to tbs provi-
sion that. In an action against an employer
who has rejected the act, it shall be pre-
sumed that the injury was the direct result
of his negligence, and that he must assumsH
the burden of'proof to rebut the presump-*
tion of negligence. In addition, we may
repeat that the establishment of presump-
tions, and of rules respecting the burden of
proof, is clearly within the domain of the
state governments, and that a provision of
this character, not unreasonable in itself,
and not conclusive of the rights of the par-
ty, does not constitute a denial of due
process of law. Mobile, J. k K. C. R. Co.
V. Tnrnlpseed, 219 U. 8. 36, 42, 55 L. ed.
78, 79, 32 L.R.A.(N.S.) 228, 31 Sup. Ot
Rep. 136, Ann. Cas. 1012A, 403, 2 N. C. 0.
A. 243.
Objection Is made to the provision in |
3, that where an employee elects to reject
the act he shall state in an affidavit who,
it anybody, requested or suggested that he
should do BO, and if It be found that the
employer or his agent made such a request
or suggestion, the employee shall be con-
clusively presumed to have been unduly
influenced, and his rejection of the act shall
be void. Passing the point that appellant
is an employer, and will not be heard to
raise constitntional objections that are good
only trom the standpoint of employeo
A^^OOglC
ST 8UPBEUB CODBI RXPORTEB.
Oor. TfRtt.
(Naw 7oA n re). Hatch t. Bwrdon, 204
U. S. 1S2, 100, 01 L. «d. 416, 422, 27 Sup.
Ct, Rep. 188, 9 Ann. Cu. T3S; Rotentbal
r. New York, 226 U. S. 260, 271, 67 L. ed.
E12, 217, 33 Sup. Ct. Bep. 27, Ann. Cas.
lgi4B, 71 [ Plymouth Coal Co. v. Pennayl-
Tania, 232 U. S. 031, M4, S8 L. ed. 713, 719,
34 Sup. Ct. Rep. 369; Jeffrey Mfg. Co. y.
Blagg. 230 U. 8. 671, S7S, 59 L. ed. 364,
868, 35 Sup. Ct. Rep. 167, 7 N. C. C. A. 570;
Hendrick t. Maryland, 23S U. S. 610, 621,
69 L. ed. 385, 300, 36 Sup. Ct. Sep. 140),
it is sufGcient to say that the criticized
proTlsion evidently ia intended to safe-
guard the employee from all intlueiieea that
might be exerted by the employer to bring
a1>out his dissent from the compenBatiou
features of the act. The lawmaker no doubt
entertained t^e view that the act was more
beneficial to employees than the common-
law rules of employer's liability, and that
It was highly improbable am employee
would reject tbe new arrangement of hii
own free will. The provision fa a permie-
sibte regulation in aid of the general scheme
of the act.
It is said that there la a denial of due
proccaa In that part of the act which pro-
vides for the adjustment of the compenaa-
1^ tion where the employer accepts its proTl-
^ lions. In case of disagreement between an
* employer and an'lnjured employee, either
party may notify the Indnstriaj Commis-
•ioner, wlio thereupon ahall call for the
formation of an arbitration committee eon-
siBting of three persons, with himself aa
chairman. The committee Is to make such
inquiries and inveitigatloua as It shall deem
necessary, and ita report is to be filed with
the Industrial Commissioner. If a claim
for review is filed, the Commissioner, and
not the committee, la to hear the parties,
may hear evidence In regard to pertinent
matters, and may revise the decision
the committee in whole or in part, or refer
the matter back to the committee for fur-
ther findings of fact. And any party in
interest may present the order or decision
of the Commissioner, or the decision of an
arbitration committee from which no claim
for review haa been filed, to the district
court of the county in which the injury
occurred, whereupon the court shall render
a decree in accordance therewith, having
the aame effect as if it were rendered
■ait heard and determined by the court,
izcept that there shall be no appeal upon
queetions of fact or where the decree is
based upon an order or decision of the
Commiasioner which has not been presented
to the court within ten days after the no-
tice of tlie filing thereof by the Commis-
sioner. With respect to these provielona,
the supreme court of Iowa held (IS4 N. W.
1064) ; "Appeal is provided from th* d»
crea enforcing the award on which all aav«
pure queetions of fact may be reviewed.
. We hold that though the act doea
not in terms provide for judicial review,
except by i^d appeal, the statute does noi
take from the courts all Jurisdiction in tha
premises. . . . We are in no doubt that
the very structure of the law of the land,
and the inherent power of the courta, would
Kiable them to interfere. It what we have
defined to be the jurisdiction conferred upon
the arbitration committee were by it ex-
ceeded— could inquire whether the act was^
being enforced against one who had rejectcdjj
it, whether«the claiming employee was an»
employee, whether he waa injured at all,
whether his injury was one arising out of
Buch employment, whether it was due to
intoxication of the servant, or self-inflicted,
or, acceptance being conceded. Into whether
an award different from the statute sched-
ules bad been made, into whether the award
were tainted with fraud on part of tha
prevailing party, or of the arbitration com>
mittee, and into whether that body attempt-
ed judicial functions, in violation of or not
granted by the act." Thus it will be seen
that the act preicribea the measure of com-
pensation and the circumstances under
which it is to be made, and eetabiiahcs
administrative machinery for applying tha
statutory measure to the facts of each par-
ticular case; provides for a hearing before
an administrative tribunal, and for judicial
review upon all fundamental and jurisdio-
tional questions, ^is disposes of the con-
tention that the administrative body ia
clothed with an arbitrary and unbridled
discretion, inconsistent with a proper con-
ception of due process of law. Plymoath
Coal Co. T. Pennsylvania, 232 U. S. 531,
645, G8 li. ed. 713, 719, 34 Sup. Ct. Rep.
366.
Objection la made that the act dispense*
with trial by jury. But it ia settled that
this is not embraced in the rigbta secured
by the 14th Amendment. Walker v. Sauvi<
net. 92 U. a. 90, 23 L, ed. 878; Frank r.
Mangum, 237 U. S. 309, 340, 69 L, ed. 969,
36 Sup. Ct. Rep. 682 j New York C. R.
Co. V. White, 243 V. 8. 188, 61 L. ed. 8«7,
37 Sup. Ct. Rep. 247.
It is elaborately argued that, aside from
the 14th Amendment, tbe inhabitants of
the state of Iowa are entitled to this rights
because it was guaranteed by the Ordinance
of July 18, 1787, for the government of tha
Northwest Territory (I Stat, at L. 01,
note). In these terms: "The inhabitants
of tha said territory shall always be es-
tlUed to tha benefits of ... the trial
l^ jory." The argument la rested, first,
upon the ground that Iowa was a part of
,A_,OOglC
]01«.
HAWKINS r. BLBAELT.
S»
tb< Northwnt Territory. This la mwii-
featly untenable, since th&t territory ntu
bounded on tbe neat by the MiMiseippi
liver, and lows was not a part of it, but
of'the Louisiana Purcbese. But, secondly,
It ii contended that the (^arantiee
tained in the ordinance were extended to
Iowa liy the act of Congresa approTed June
12, 1838, establiBhing a territorial govern-
ment {chap. 90, S 12, S Stat, at L. 23G,
239), and by the act; for tbe admlBBion
of tbe state into the Union. Acta of March
3, 1845, chaps. 48 and 70, S Stat, at L.
742, 780; Act of August 4, 1B46, chap. 82,
9 Stat, at L. 62; Act of December 28, 1848,
chap. 1, B Stat, at L. 117; 1 Poore, Cbar-
ters t CoDst. 331, 634, 536, 651. Tbts la
easily diaposed of. The Act of 1S38 was
no more thaa a regulation of territory be-
lon^ng to the United States, subject to
repeal like any aucb regulation i and tbe
act for admitting tbe state, ao far from
perpetuating any puiieular institution prft-
Tiously eetablldied, admitted it "on an
«qual footing with the original states In all
reapecta whatsoever." The regulation, al-
thou^ embracing provisions of the ordi-
nance declared to be unalterable unless by
common consent, had no further force In
Iowa after 'Ita admission as a state and tbe
adoption of a state Constitution, than other
acta of Congreat for the government of the
territory. All were auperaeded by the atate
Ccmatitutlon. Permoli t. New Orleans, S
Bow. 589, eiO, 11 L. ed. 73D, 748; Coyle v.
6mitb, 221 U. S. 659, 507, 570, G6 L. ed.
853, 868, 850, 31 Sup. Ct. Sep. SSS; Gin-
einnati v. Louisville & N. R. Co. 223 U. S.
380, 401, Se L. ed. 481, 484, 32 Sup. Ct.
Bep. 257. Tbe atate of Iowa, therefore, is
aa much at liberty aa any other state to
aboliah or limit tbe right of trial by jury;
or to provide for a waiver of that right, ta
It bas done by tbe act under consideration.
Section 6 is singled out for criticism, as
denying to employers the equal protection
of tbe laws. It reads: "Where the em-
ployer and employee elect to reject tbe
terms, conditione and provisions of this act,
tbe liability of the employer shall be the
•ame as though tbe employee had not re-
jected the terms, conditions and proviaions
B tbereot." Aa wo have shown, if the em-
fi ploysr rejects the act, he remains liable
* (or personal injury sustained by an'em-
^oye«, arising out of and in tbe usual
soiirae of the employment, and is not to
«oe«pe by showing that he had exercised
jMaonable care in selecting competent em-
ployees in the business, or that the em-
plc^ee bad assumed the riak, or that the
injury was caused 1>y the lu^Ugaice of a
coemployee, or even if showing that tb«
plaintiff was negligent, unless sneh negli-
gence was wilful and with intent to eanse
the injury, or waa the result of Intozloa-
tion on tbe part of the Injured party. Thl*
Is the result whether the employee on his
part accepts or rejects the act. But where
the employee rejccta it and the employer
accepts It, then, by f 3b, "the employer
shall have the right to plead and rely upon
any and all defenses including those at
common law, and tbe rules and defenses of
contributory negligence, assumption of rfsk
and fellow servant shall apply and be
available to the employer as by statute au-
thorized unless otherwise provided in this
act;" with a provieo not material to the
present point. We cannot say that there
is here an arhitraij classiflcation within
tbe inhibition ot the "equal protection"
clause of tbe 14th Amendment All em-
ployera are treated alike, utd so are all
employees; aud if there be some difference
as between employer and employee reapect-
ing the inducementa that are held out for
accepting tbe oompenaatlon featurea of tbe
act, it goes no furtiier than to say that, if
neither party is willing to accept tbem, the
employer's liability shall not be subject to
either of the several defenses referred to.
Aa already shown, the abolition of such
defenses la within the power of tbe state,
and the legislation cannot be condemned
when that power baa been qualifiedly exer-
cised, without unreasonable discrimination.
Section 42 of the act providea: "£very
employer, subject to tbe provisiona of tbia
act, shall insure his liability thereunder in
some corporation, association or orgauita-
tion approved by the atate department of>j
inaurance. . . . 'And if such employer*
refuses, or neglects to comply with this
section, he shall be liable in case of injury
to any workman in bis employ under part
(1) of this act." The supreme court
ot Iowa, in the Hunter Case, said ot 9 42
(164 N. W. 1066): "Tbia clearly shows
Uiat no employer is compelled to Insure
nnleaa he haa accepted, and thus become
subject to, the act;" proceeding, however,
to discuss tbe case further upon tlie hy-
pothesis that all employers named in the
were oompeiled to maintain insurance.
lew of the oonstniction adopted, it is
uimeceaaary for ua to pass upon the ques-
tion of compulsory insurance in this case,
appellant not having accepted the act.
Other contentions are advanced, but they
are without merit and call for no partioulai
mention.
Decree affirmed.
,A_i00gle
£80 S7 SDPREUE CXIURT BEPQRTEIL
CM U. a. tu)
MOUNTAIN TIMBEB COMPANY, Plff. In
Oct. Idi^
STATE OF WASHINGTON.
OoHffnTunoSAi. Law «s»S01— MAfliEB Aiio
Skbvant «=>347— Due Pbocbbs or La.w
— WoBKMXK'a CoKPBHSATioM Act — Vi-
LIDITT AS AOAIUST BUPLOTfia
1. Rights of emplojeeB under U. B.
Const. 14th Amend, are not invaded hj the
Abolition, undei tlie Witehiogton Workmen's
Compeneatiou Act (Wash. Lawa 1911, cbap.
74), of private rights of actioa for damage*
In caae of disabling or fatal accidental par-
•onal injuries received b; employeea in cer-
tain emptoymentB denominated "extra
hazardouB (and in an; other industry, at
the option of employer and employaca), and
the substitution of a syatem of compensa-
tion to injured workmen and their depend-
ents out of a public fund established and
maintained by contributions required to be
made by the employers in proportion to the
hazards of each class of occupation.
[Bd. Note.— For other caMs, mi Constitutional
Law. Cant. Dli. H US-W), KT.]
OOHBTITUTIONAI. LAW ^»68(1)— PoUTICAL
Question— Republic AK Fobv or Got-
2. Whether or not a stata
the provision of U. 6. Conit. art. 4, % 4, guar-
antying to every state in the Union a re-
publican form ol government, it not a judi-
cial question, but Is a political one, which is
•olely for Congress to determine.
IBS. Note.— Tor otber casw. see Ouutltntlonal
Iaw, CsdL Dig. I US.]
COMBTITUTIOHAI. LAW ^sSlS — RiaBT TO
Tbial Bt— Eftbct of WoHKMM'a Cou-
FXNBATion Act.
S. I'he right to trial bj J1117. guatan-
teed by U. S. Const. 7tfa Amend., cannot be
said to be infringed by the Washington
Workmen's Compensation Act (Wash. Laws
1911, chap. 74), on the theory that if such
act be valid, it must be followed in the Fed-
eral courts in cases that are within its pro-
visions, where there is nothing in such act
that excludes trial by jury in any private
rights of action which are preserved, and,
as between employer and employee, the act
abolishes all right of recovery in ordinary
cases, and therefore leaves nothing to Iw
tried by a jury.
rBd. Nats.— For other
Law. Cant. Dtg. | 333.]
OoNSTTmrioNAL Law *=301— Dm Pno-
OBsa or Law— Eqdal Pbothctiok o» th»
Laws— Woremen's CouFKneATioN Act.
4. A state may, consistently with U.
8. Const. 14th Amend., substitute a system
of compulsory compensation for disabling
or fatal accidental personal injuries re-
ceived by employees in the course of their
employment in certain so-called hazardous
employments without regard to fault of the
employer, in lieu of the existing right to
maintain actions for damages in cases of
the employers' negligence, in which the Ut-
ter may assert immunity for the negligence
of a fellow servant and the defenses of con-
tributory n^ligence and assumed risk.
[BO. Nota.— For other cam. see ConstltBtlonal
l«w. Cent, Dig. H W-gM. MT.)
I. see ConsUtutlonal
CoNSTTTUTiaKAi, IiAW ^a24S, 801 — DDE
Pbocebs or Law— EkiUAi. PBOTBonoif or
THX Laws— Police Powxa— Wobxuxit'b
CoKPiNfiATioN Act.
6. The exaction, under the Washingtoa
Workmen's C<unpensation Act (Wash. Lure
1911, chap. 74), from employers in certain
industries denominated "extra hazardous,"
without r^ard to any wrongful act on thdr
part, or to whether injuries have befallen
their own employees or not, of periodical
contxihutions based upon percaitages of pay
rolls to a state fund from w-Uch compensa-
tion shall be made for disabtins or fatal in-
juries received by employees in the course
of their employment in such industries, is
not Inconsistent with the due process of
law and equal protection of the laws clauses
of U. S. (>>n9t. 14th Amend., but such ex-
action is a valid exercise of the state's police
power, there being no claim thut tlie scale
of compensation is unduly large, and the
schedule of contribution evidencing an in-
tent to proportion the various percentages
according to the hazard of each of the
groups into which the industries are divided,
and to limit the burden to the requirement*
of each industry.
[Bfl, Note.— For other cases. — - _
Law. CenL Dig. || TOl, SU-SEO, SST.]
GOtTSTTTOnOKAL Law *=24B— Doe Pbo-
cBBs or Law— Eqtjai. Psotbctioh or thi
Laws- WoBsifBn'a CoiO'enbatioit Act,
Laws 1011, chap. 74), to classify the vari*
ous occupations according to the respective
hazard of each, is a sufficient answer (there
being no particular showing of erroneous
class! Gcation) to the objection, fouoiJcd on
U. S. Const. 14th Amend., that the sUtute
goes too far in clasEifytng as hazardous
large numbers of occupations that are not
hazardous in their nature.
[Kd. Note.— For other eaaas. lee Coutltutkniil
Law, Cult. Dig. I TOl.l
Statutes ^=361— Conbtbdctioh FAVOKUia
Co N 8T ITU TIO N A LITT .
7. Tlie Federal Supreme Court will not
assume, in the absence of an actual decision
of the state court, that the provision of the
Washington Workmen's Compensation Act
(Wash. Laws lUll, chap. 74), making it un-
lawful for the employer to deduct any part
of his compulsory coiitritiution to the state
fund created by that act from the wages or
earnings of his workmen, will be so broad>
ly construed as to bring it in conllict with
the Federal Constitution.
For othee caaes. ■«« Statu tea. Cent.
"fW Note.
Dfs. H M.
IH.]
[No. 13. J
Argued March 1 and 2, 1916. Restored to
docket for reargument November 13, 191S.
Reargued Jaouaij 30, 1017. Decided
March S, 1017.
IN ERROR to the Supreme Court of th*
State of Washington to review a judg-
ment which affirmed a judgment of the
r-NUUBBR In all Ker-NnmbareA DI«mU * IndnfMl | Q
1018.
MOUNTAIN TIMBEE CO. t. WASHINGTOH.
Ul
fittp^or Court of Conlitz County, tn that
atate, la favor of the stat« In an action to
recover certain premiumB iJleged to be due
under the Workmen'! Compensation Act
Affirmed.
See same ease below, 76 Wash. 881, UKA.
— , — , 135 Pac. 645, 4 N. C. C. A. SIL
The facts are stated In the opinion.
Mesers. F. Morkoo Rlvinua, Theodore
W. Scatli, Coy Burnett, and Edmund 0.
Strode for plaintiff in error.
Mr. W. T. Tanner, Attorney General of
^ Washington, for defendant in error.
• * Mr. Justice Pitney delivered the opinion
of the court:
This was an action brought by the state
■gainst plaintiff in error, a corporation en-
gaged in the busintss of logging timber and
operating a logging railroad and a eawmill
having power-driven machinery, all in the
state of Washington, to recover under chap.
74 of the I«w8 of 1911, known as the Work-
men's Compensation Act, certain premiums
based upon a percentage of the eatimated
pay roll of the workmen employed by plain-
tiff In error during the three months begin-
ning October 1, 1911. Plaintiff in error by
^ demurrer raised objections to the act, based
M npon ths Constitution of the United States.
• The supreme court of Washington over-
ruled them, and afiBrmed a judgment In
favor of the state (75 Wash. 681, L.H.A. — ,
— . 136 Pac. 845, 4 N. C. C. A. Sll), follow-
ing its previous decision in State ex rel.
Davis-Smith Co. v. Clausen, S5 Wash. 160,
87 L.R.A.(N.S.) 4Se, 117 Pac. 1101, 2 N. C.
C. A. 823, 3 N. C. C. A. S90 ; and the case
comes here under f 237, Judicial Code [3S
Blat. at L. 1166, chap. 231, Comp. Stat.
1913, S 1214].
The act establislies a state fund for the
compensation of workmen injured in
hazardous employment, abolishes, except in
k few specified cases, the action at law by
•mployee against employer to recover dsm-
»gea on the ground of negligence, and de-
prives the courts of jurisdiction over such
controversies. It is obligatory upon both
employers and employees in the hazardous
employments, and the state fund is main-
tained by compulsory contributions from
employers in such industries, and is made
the sole source of compensation for injured
employees and for the dependents of those
whose injuries result in death. We will
recite its provisions to an extent sufficient
to show the character of the legislation.
The 1st section contains a declaration of
policy, reciting that the common-law system
governing the remedy of workmen against
employers for injuries received In hajcardous
«^ork is inconsistent with modem Industrial
tfondiUona, and In practice proves to b«
economically unwise and nnfalrj that Uie
remedy of the workman has been oncertaii^
alow, and inadequate; that injuries In such
(onployments, formerly occasional, have b^
come frequent and inevitable; and that th*
\re1fare of the state depends upon Its in-
dustries, s^d even more upon the welfare of
its wage workers. "The state of Washing-
ton, therefore, exercising herein its police
and sovereign power, declares that all
phases of the premises are withdrawn from
private controversy, and sure and certain
relief for workmen, injured in extra hazard-
ous work, and their fatniliea and dependents
is hereby provided regardless of questions of
fault and to the exclusion of every other^
remedy, proceeding or compensation, except 9
as otherwise provided in this 'act; and to*
that end all civil actions and civil causes
of action for such personal Injuries and all
jurisdiction of the courts of the state over
such causes are hereby abQliahed, except aa
in this act provided."
Hie 2d section, declaring that while there
is a hazard in all employment, certain em-
ployments are recognized as being inherent-
ly constantly dangerous, enumerates thos*
intended to be embraced within tlie term
"extra hazardous," including factories, mills,
and workshops where machinery is used,
printing, electrotyping, photoengraving and
stereotyping plants where machinery is
used; foundries, blast furnaces, mines,
wells, gas works, waterworks, reduction
works, breweries, elevators, wharves, docks,
dred^B, smelters, powder works, logging,
lumbering, and shipbuilding operations, log-
ging, street, and intern rbun railroads,
steamboats, railroads, and a number of
others; at the same time declaring that if
there be or arise any extra hazorilous occu.
pation not enumerated, it shall come under
the act, and its rate of contribution to the
accident fund shall be fixed by the depart-
ment created by the act upon the basis of
the relation which the risk involved hcnrs
to the risks classified, until the rate shall bs
fixed by legislation. The 3d section con-
tains a definition of terms, and, among
them: "Workman means every person in
this state, who, after September 30, 1011,
is engaged in the employment of an employ-
er carrying on or conducting any of the
industries scheduled or clcasiried in § 4,
whether by way of manual labor or other-
wise, and whether upou the premises or at
the plant, or, he being In the course of his
employment, anay from the plant of his em-
ployer;" with a proviso giving to a work-
man injured while away from the plant
through the negligence or wrong of another
not in the same employ, or, if death result
from ths injury, to his widow, children, or
dependents, an election whether to take
D,at,z.d>,.'^-.00'^IC
87 SUFRiaiE COUBT REFOSTBR,
Oox. 1
^ under the act or to sedc a remedy &galiiit
• the third party. "Iniuty"*l« defined »» an
Injury resulting from lome fortuitous event,
u distinguished from the contraction of
disease.
Section 4 coutalni a schedule of contri-
bution, reciting that industry should bear
the greater portion of th« burden ot the cost
of its accidents, and requiring each employ-
er prior to January 15th of each year to pay
into the state treasury, io accordance with
the schedule, a sum equal to a percentage of
his total pay roll for the year, "the same
being deemed tbe most accurate method of
equitable distribution of burden in propor-
tion to relative hazard." The application of
tbe act as between employers and worlimeii
is mode to date from the 1st day of October,
loll, the payment for that year to be made
prior to that date and upon the basis of
the pay roll of the last preceding three
months of operation. At the end of each
year an adjustment of accounts is to be
made upon the basis of the actual pay roll.
The schedule divides the various occupations
into groups, and Imposea various percentages
upon the dilTerent groups, the lowest being
ij per cent, in the case of the textile indus-
tries, creameries, printing establishments,
etc., and the Iiigbest being 10 per cent, in tbe
eaa« of powder works. The same section
establishes forty-seven different classes of in-
dustry, and declares;
"For the purpose of such payments ac-
counts shall be kept with each industry in
accordance nith the classification herein
provided and no class shall be liable for the
depletion of the accident fund from acci-
dents happening in any other class. Each
class shall meet and be liable for the acci-
dents occurring in such class. There shall
be collected from each class as an initial
payment into the accident fund as above
specified on or before the 1st day o[ October,
1011, one fourth of the premium of the next
succeeding year, and one twelfth thereof at
tbe close of each month after December,
1011 : Provided, any class having suIGcient
funds credited to its account at tbe end of
S the Qrst three months or any month there-
■ after, to meet'the requirements of the acci-
dent fund, that claaa shall not be called
upon for such month. In case of accidents
t By Seas. Laws 191G, chap. 18S, pp. ST4,
677. f 4 was amended so as to suoatitute
in the place of the clause italicized the
following: "la that the intent is that the
fuitd created under this section shall ulti-
mately become neither more nor leas than
•elf-oupporting, exclusive of tbe expense of
admlnistTation, the rates named in this
section are subject to future adjustment
by the industrl^ insurance department, in
Mcordanee with any nlative increase «r de-
occurring in such class after lapsed payment
or payments said class shall pay tlie said
lapsed or deferred payments commencing at
the first lapsed payment, as may be neces-
sary to meet such requirements of the acci-
dent fund, llie fund thereby created shall
be termed tbe 'accident fund' which shall
be devoted exclusively to the purpose speci-
fied for it in this act. In that the intent ti
that the fund created under tMt tectitm
■Anil vltimalely become neither more nor
lett than telf-supporting, exclusive of th«
empaite of adminittrotion, tht ratei w thU
lection named are subject to /ulure adfuet-
ment by t?ie leffietature, and the clattifi-
eatiom to rearrangement following any rela-
tive inoreate or decrease of hasard ghoicn by
experience. 1 ... If, after this act
shall have come into operation, it ts shown
by experience under the act, because of poor
or careless management, any eatabliahment
or work is unduly dangerous in comparison
with other like establishment* or works, the
department may advance its clasaiQcation of
risks and premium rates in proportion to
the undue hazard. In accordance with the
same principle, any such increase in classifl-
cation or premium rate, shall be aubject tosj
restoration to the schedule rate. . .8
If, at the end of any*year, it shall lie seen
tliat the contribution to tjie accident fund
by any class of industry shall Im leas than
the drain upon the fund on account of that
class, the deficiency shall be made good to
the fund on the 1st day of February of the
following year by the employers of that
class in proportion to their respective pay*
ments for the past year."
Section E contains a schedule ot the com*
pensation to be awarded out of tbe accident
fund to each injured workman, or to bin
family or dependents in case of his death,
and declares that except aa in the act other-
wise provided, such payment shall be in lieu
of any and all rights of action against any
person whomsoever. Where death reaulU
from the injury, the compensation inctudea
the expenses of burial, not exceeding $76 In
any case, a monthly payment of (20 for the
widow or invalid widower, to cease at re-
marriage, and (6 per month for each child
under tbe age of sixteen years untjl that
age is reached, but not exceeding 133 in all,
crease in hazard shown by experience, and
it in the Judgment of the industrial insur-
ance department the moneys paid into the
fund ot any class or classes stiall be insuffi-
cient to properly and safely distribute the
burden of accidents occurring therein, the
,A_.OOglC
isia.
UOUHTAIN TDfBES CO. t. WASHINCFTON.
with ft Inmp Bniii of (240 to a widow upon
her remiLn-ia^; If the workman leaves no
wife or hnsband, but a child or children
under the age of iixteen years, there la to be
a monthly pajment of CIO to each child
natil that age la reached, but not exceeding
a total of $39 per month; If there be no
widow, widower, or child under the ago of
•ixteen yeart, other dependent Telatlves are
U> receive monthly payments equal to GO per
cent «f the aTcrage monthly support actual-
ly received by such dependent from the
worlonan during the twelve moutha next
preceding his injury, but not exceeding a
total of $20 per month. For permanent
total disability of a workman, he is to re-
ceive, if unmarried, (20, or, If married, J25
per mtmth, with fS per month additional
for each child under the age of alxteen
years, but not exceeding $3S per month in
alL (Section T provides that Uie monthly
payment, in case of death or permanent
H total disability, may be converted Into a lump
2 sum payment, not in any case exceeding
• W.OOO, according to tht^Ktpectancy of life.)
For temporary total disability there is a
■omewhat different icale, compensation to
cease when earning power is restored. For
permanent partial disability the workman
Is to receive compensatioit in a lump sum
eqaal to the extent of the Injury, but not
exceeding SI, GOO.
By § S, if injury or detith results to a
workman from his deliberate intention to
produce it, neither he nor his widow, child,
or dependents shall receive any payment
<mt of the fund. If Injury or death results
to a workman from the deliberate intention
of the employer to produce it, the workman
or his widow, child, or dependent shall have
the privilege to take under the act, and also
have a cause of action against the employer
for any exceas of damage over the amount
receivable under the act
By 9 ID provision is made for the adop-
tion of the act by the joint election of any
employer and his employees engaged in
works not extra, hazardous. By S 21, the
Industrial Insurance Department is created,
consisting of three commissioners. By g 20,
k judicial review Is given, in the nature of
ftn appeal to the superior court, from any
decision of the department upon questions
of fact or of the proper application of the
act, but not upon matters resting in the
discretion of the department. Other sec-
tions provide for matters of detail, and S
11 renders void any agreement by employer
or workman to waive the beneflt of the act.
From this recital It will be clear that the
fundamental purpoea of the act is to abolish
prirato rights of action for damages to em-
ployiM In the hatardous Industries (and In
any «tlier indnitry, at the option of em-
ployer and employeea], and to nibsUtut« a
system of compensation to Injured work-
men and their dependents out of a publie
fund eatabliahed and maintained by contri-
butions required to be made by the empl<7-
ers In proportion to the hauid of each^
class of occupation. n
While pIsintifT in error Is an employer, >
and cannot succeed without showing that
its constitutional rights as employer are in-
fringed (Plymouth Coal Co. v, Pennsyl-
vania, 232 U. S. 631, 544, 68 L. ed. 713,
719, 34 8up, Ct Rep. 350; Jeffrey Mfg. Co.
V. Blagg, 236 U. 8. 671, 676, 60 h. ed. 364,
3flB, 36 Sup. Ot. Rep. 167, 7 N. C. C. A.
670], yet it Is evident that the employer's
exemption from liability to private action is
an essential part of the legislative scheme
and the quid pro quo for the burdens im-
posed upon him, so that if the act is not
valid as against employees, it is not valid as
against employers.
However, so far aa the interests of em-
ployees and their dependents are concerned,
this act is not distinguishable in any point
raising a constitutional difficulty from the
New York Workmen's Compensation Act,
sustained In Now York C. R. Co. v. Wliite,
decided this day 1243 U. B. 188. 81 L. ed.
667, 37 Sup. Ct. Bep. 247]. It is true that
In the Washington act tbe state fund is the
sole source from which the compensation shall
be paid, whereas the New York act gives to
the employer an option to secure the com-
pensation either through state i
insurance with an authorized
corporation, or by a deposit of securities
with the state Commission. Hut we find
here no ground for a distinction unfavorable
to the Washington law.
So far as employers are concerned, how-
ever, there is a marked difference between
the two lawa, because of the enforced con-
tributions to the state fund that are
characteristic of the Washington act, and it
is upon this feature that the principal stress
of the argument for plaintiff in error is laid.
Two of the constitutional objections may
be disposed of briefly. It is urged that the
law violates S ^ of article 4 of the Consti-
tution of the United States, guarantying to
every state In the Union a republican form
of government. As has been decided repeat-
edly, the question whether this guaranty has
been violated is not a judicial but a political
question, committed to Congress, and not tog
the courts. Luther v. Borden, 7 How. 1, 30,r
42, 12 L. ed. 681, 6B7, GOQi Pacific 'States*
Teleph. ft Teleg. Co. v. Oregon, 223 U. 8.
118, 66 L. ed. 377, 32 Bup. Ct. Rep. 224;
Kieman v. Portland, 223 U. S. 151, 66 L.
ed. 3Se, 32 Sup. Ct. Rep. 231; Marshall v.
Dye. 231 U. 8. 260, 266, GB L. ed. 206, 207,
34 Sup. Ct. Rep, K; Ohio ex rel- JJavia.t^-^ .p
87 SUPEEME COURT REPOBTER.
Ooi. Tnuc,
midebrandt, 241 U. S. GSS, 60 L. ed. 1172,
K Sup. Ct. Rep. 708.
Thfl Tth Amendment, with its provision
for pTe9crviiig the right of trial by jury, U
invoked. It is conceded tliat this lias ao
reference to proceedings in the state courts
(Minneapolis & St. L. R, Co. t. Bomholis,
241 U. S. 211, 217, SO L. ed. BBl, 893, L.R.A.
ISITA, 86, 3G Sup. Ct. Rep. GQS), hut it ia
urged that the question is material for the
reason that iC the act he constitutional it
must be followed in the Federal courtB in
cases that are within its provisions. So far
aa private rights of action are preserved,
this Ii no douht true; but, with respect to
those, ive find nothing in the act that ex-
cludes a trial hy jury. Ah between employee
«nd employer, the act abolishes all right of
recovery in ordinary casce, and therefore
leaves nothing to he tried by jury.
The only serious question is that which
la rftieed under the "due process of law"
and "equal protection" clausea ol the 14th
Amendment. It is contended that ainee the
act unconditionally requires employers in
the enumerated occupations to make pay-
ments to a fund for the benefit of employees,
without regard to any wrongful act of the
employer, he is deprived of bia property,
and of bis liberty to acquire property, with-
out compenaatiou and without due process
of law. It is pointed out that the occu-
pations covered include many that are
private in their character, aa well as others
that are subject to regulation aa public em-
ployments, and it is argued that, with re-
spect to private occupationa (including
those of plaintiff in error), a compulsory
compensation act does not concern the inter-
ests of the public generally, but only the
|>articular Interesta of the employees, and
is unduly oppressive upon employers, and
arbitrarily interferes with and restricts the
management of private business operations,
e The statute, although approved Marcli 14,
eJlOll, took effect as ttetween employers and
• workmen on October l*ln that year, actiona
pending and causes of action existing on
September 30 being e.\preBsty saved. It
therefore disturbed no vested rights, its ef-
fect being confined to regulating the re-
lation of employer and employee in the
hazardous occupations in future.
If the legislation could be regarded mere-
ly as substituting one form of employer's
liability for another, the points raised
against it would be answered euiKciently by
onr opinion in New York C. R. Co. v. White,
243 V. S. 188, 01 L. ed. 667, 37 Sup. Ct
Rep. 247, where it is pointed out that the
common-law rule coufining the employer's lia-
bility to cases of negligence on bis part or tta
the part of others for whose conduct he is
made answerable, the immunity from respon-
sibility to an employee for the negligence of
a fellow employee, and the defenses of eon*
tributory negligence and assumed rislc, are
rules of law that are not beyond alteration
by legislation in the public Interest; that
the employer has no vested interest in them
nor any constitutional right to insist that
they shall remain unchanged for his lieneflt;
and that the states are not prevented by the
14th Amendment, while relieving employers
from liability for damages measured by
common-law standards and payable in cases
whore they or others for whose conduct they
are answerable are found to be at fault,
from requiring them to contribute reason-
able amounts and according to a reasonable
and definite scale by way of compensation
for the loss ot earning power arising from
accidental injuries to their employees, ir-
respective of the question of negligence, in-
stead of leaving the entire loss to rest
where It may chance to fall; that is, upon
particular injured employees and their de-
pendents.
But the Washington law goes further, in
that the enforced contributions of the em-
ployer are to be made whether injuries
have befallen his own employees or not; ao
that, however prudently oaa may manage»-
his business, even to the point of immunityJJ
to bis employees from* accidental injury or*
death, he nevertheless ia required to make
periodical c(mtributions to a fund for mak-
ing compenaatiou to the injured employ eea
of his perhaps negligent competitors.
In the present case the supreme court ot
Washington (70 Wash. 681, 5S3) susUined
the law as a legitimate exercise of the police
power, referring at the same time to its
previous decision in the Clausen Cose (65
Waah. 1E6, 203, 207), which was rested
principally upon that power, but also (pp.
203, 207) sustained the charges imposed
upon employers engaged in the specified
industries as possessing the character of
a license tax upon the occupation, par-
taking ol the dual nature of a tax for
revenue and a tax for purposes of regula-
tion. We are not here concerned with any
mere queation of construction, nor with any
distinction between the police and the tax-
ing powers. The queation whether a state
law deprives a party of rights secured by
the Federal Constitution depends not upon
how it is characterized, but upon its practi-
cal operation and effect. Henderson v. New
York (Henderson v. Wickham) 02 U. 8.
2S9, 268, 23 L. ed. G43, 647; Stockard v.
Morgan, 185 U. S. 27, 38, 49 L. ed. 785, 794,
22 Sup. Ct Rep. 676; Galveston, H. * S. A.
R. Co. T. Texas, 210 U. B. 217, 227, 62 L. ed.
1031, 1037, 28 Sup. Ct. Rep. 638; Western
U. Teleg. Co. v. Kansas, 216 U. B. 1, 28, 30.
6i L. ed. 355, 300, 367, 30 Suff. Ct.Rep..,^
iflie.
MOUNTAIN TIMBEE CO. ». WASHmOTOH.
£U
190; Ludwig V. Western U. Te)eg. Co. SIS
U. 8. 14G, 192, 64 L. ed. 4S3, 429, 30 Sup.
■Ct, Rep. 280; St. Louis Southweateni R. Co.
T. Arkansas, 236 U. S. 350, 3B2, 69 L. ed.
2S5, en, 36 Sup. Ct. Rep. 99. And the
Federal Constitution does not require a
separate exercise \>y the states of their
powers of regulation and of taxation.
Guodling T, Chicago, 177 U. 8. 183, 188, 44
L. ed. 726, 729, 20 Bup. Ct. Rep. 033.
Whetlier this legislation be regarded as
a mere exercise of power of regulation, or
as a combination of regulation and tax-
ation, the crucial inquiry under the 14th
Amendment is irhetfaer it clearly appears to
be not a fair and reasonable exertion of
governmental power, bnt so extravagant or
^ arbitrary as to constitute an abuse of
<2 power. All reasonable preaiunptions are in
• favor of'its validity, and the burden of
proof and argument is upon thoee who seek
to overthrow It. Erie R. Co. v. Williams,
233 U. a. GS6, 090, 6S L. ed. 1156, 1160, SI
L.RA(N.B.) 1007, 84 Sup. Ct. Rap. 761.
In the present case it will be proper to con-
sider: (1) Whether the main object of the
legislation is, or reasonably may be deemed
to be, of general and public moment, rather
than of private and particular interest, so
aa to furnish a just occasion for such inter-
ference with personal liberty and the right
of acquiring property as necessarily must
result from carrying it Into effect. (2)
Whether the charges imposed upon employ-
ers are reasonable in amount, or, on the
other hand, so burdensome as to be mani-
festly oppressive. And ( 3 ) whether the
burden is fairly distributed, having regard
to the causes that give rise to the need for
the legislation.
As to the first point: The authority of
the states to enact such laws as reasonably
are deemed to be necessary to promote the
health, safety, and general welfare of their
people carries with it a wide range of judg-
ment and discretion aa to vrAat matters are
of Builiciently general importance to be sub-
jected to state regulation and adminis-
tration. Lawton v. Steele, 152 U. S. 133,
136, 38 L. ed. 385, 388, 14 Sup. Ct. Rep. 490.
"The police power of a state is as broad
and plenary as its taxing power." Kidd v.
Pearson, 128 U. S. 1, 20, 32 L. ed. 346, 352,
2 Inters. Com. Rep. 232, 0 Sup. Ct. Hep. 6.
In Barbier v. Connolly, 113 U. 8. 27, 31,
28 L. ed. 923, 024, S Sup. Ct. Rep. 357, the
court, by Mr. Justice Field, sBid: "Neither
the [14th] Amendment — broad and compre.
hensive as It is — nor any other Amendment,
was designed to interfere with the power of
the stute, sometimes termed its police
power, to prescribe regulations to promote
tiia health, peace, morals, education, and
got>i order ol the people, and to legislate
so as to Increase the indurtrle* of the «t«t%
develop its resources, and add to it* wealth
and proeperity. From the very neceaalties
of society, 1^ station of a special character,
having tjiese objects in view, must often b«
bad in certain districts, such as for drain-
ing marshes and irrigating arid plaioa.^
Special burdens are often necessary forg
general benefltB,^-for supplying water, pre-*
venting fires, lighting districts, cleaning
streets, opening parks, and many other ob-
jects. Regulations for these purposes may
press with more or less weight upon one
than upon another, but they arc designed,
not to impose unequal or unnecessary re-
strictions upon anyone, but to promote,
with as little individual inconvenience as
possible, the general good. Though, in
many respects, necessarily special in their
character, they do not furnish just ground
of complaint if they operate alike upon all
persons and property under the same
circumstances and conditions. Class legis-
lation, discriminating against some and
favoring others, is prohibited, but legis-
lation which. In carrying out a public pur-
pose, is limited in its application, if within
the sphere of it« operation it affects alike
all persons similarly situated, is not with-
in the Amendment." It seema to us that
the considerations to which we have advert-
ed in New York C. R. Co. v. White, supra,
as showing that the Workmen's Compensa-
tion I«w of New York is not to be deemed
arbitrary and unreasonable from the stand-
point of natural justice, are sufGcient to
support the state of Washington in con-
cluding that the matter of compensation for
accidental injuries with resulting loss of
life or earning capacity of men employed in
hazardous occupations is of suOicient pub-
lic moment to justify making the entire
matter of compensation a public concern, to
be administered through state agencies.
Certainly the operation of industrial estab-
lishments that, in the ordinary course of
things, frequently and inevitably produce
disabling or mortal injuries to the human
beings employed, is not a matter of wholly
private concern. It hardly would be ques-
tioned that the state might expend public
moneys to provide hospital treatment, arti-
ficial limbs, or other like aid to persons in-
jured in industry, and homes or support for
the widows and orphans of those killed.
Does direct compensation stand on a less 4
secure ground I A'familiar e.\ercise of stata •
power is the grant of pensions to disabled
soldiers and to the widows and dependents
of those killed in war. Such legislation
usually is justLQed as fulfilling a moral
obligation, or as tending to encourage th»
performance of the public duty of defense.
But is the state powerless to compensat<^
,A_.OOglC
37 SUPREME COURT EEPORTEB.
Oor. Tom,
with pensions or otherwise, those who are
disabled, or the dependents of those whose
lives are lost, in the industrial occupations
that are lo necessaiy to develop the re-
■oQTces and add to the wealth and pros-
perity ol the state! A machiDe as well as
a bullet may produce a wound, and the dis-
abling effect may be the same. In a recent
case, the supreme court of Washington said:
"Under onr statutes the workman is the
soldier of organized Industry, accepting a
kind of pension in exchange for absolute In-
surance on his master's premisee." Sterts
T. Industrial Ins. Ci>mmiBBion, 91 Waah.
688, 158 Pae. 25fl, 263, It is said that the
compensation or pension under this law ia
not confined to those who are left without
mettni of support. This is true. But Is the
state powerless to succor the wounded ex-
cept they be reduced to the last extremity!
Is It debarred from compensating an in-
jured man until his own resourceB are first
exhausted! IThis would be to discriminate
against the thrifty and In favor of tlie
improvident. The power and discretion of
the state are not thus circumscrit>ed by the
I4th Amendment.
Secondly, is the tax or imposition so
clearly excessive aa to be a deprivation of
liberty or property without due process of
lawT If not warranted by any just oc-
casion, the least imposition is oppressive.
But that point Is covered b; what has been
■aid. Talcing the law, tiierefore, to be justi-
fied by tbe public nature of the object,
whether aa a tax or as a regulation, the
question whether tlie charge* are excessive
remains. Upon tills point no particular
n contention is made that the compensation
Sallowed is unduly large; and It Is evident
" that, unless It be*ao, the corresponding bur-
den upon the Industry cannot be regarded
as excessive if Uie state is at llber^ to im-
pose the entire burden upon the industry.
With respect to the scale of compensation,
we repeat what we have said in New York
C. R. Co. T. White, that, in susUining the
law, we do not Intend to say that any scale
of compensation, however ineigniScant, on
the one hand, or onerous, on the other,
would be supportable, and that any ques-
tion of that kind may be met when it arises.
Upon the third question, — the distribu-
tion of the burden, — there is no criticism
upon the act in its details. As we have
■een. Its 4th section prescribes the sched-
ule of contribution, dividing the various
occupations into groups, and imposing vari-
ous percentages evidently Intended to be
proportioned to the hsjurd of the occupa-
tions In the respective groups. Certainly
the appIloaUon of a proper percentage to
the pay roll of the industry cannot be
daoned KB arbitrary adjustment, In view
of the Illative dselaraUon that it b
"deemed the most accurate method of aqnl*
table distribution of burdeo In proportion
to relative hazard." It la a mutter of com-
mon knowledge that, in the practice of la-
eurers, the pay roll frequently is adopted
as the basis for computing the premium.
The percentages seem to be high; but when
these are taken in connection with the pro-
visions requiring accounts to be kept with
each Industry in accordance with the clas-
sification, and declaring that no class shall
be liable for the depletion of the accident
fund from accidents happening In any other
class, and that any class h.-iving sudicient
funds to its credit at the end of the first
three months or aoy month thereafter is
not to be called upon, It is plain that, after
the Initial payment, which may h« regarded
as a temporary reserve, the assessments will
be limited to the amounts necessary to meet
actual losses. As further rebutting the
suggestion tiiat the impositton is exorbitant^i
or arbitrary, we should accept the declara-^
tion of intent that'the fund shall ultimately*
become neither more nor less than self-sup-
porting, and that the rates are subject to
future adjustment by the legislature and
the classlllcations to rearrangement accord-
ing to experience, as plain evidence of an
intelligent effort to limit the burden to the
requirements of each Industry.
We may conveniently answer at this point
the objection that the act goes too far in
classifying as hazardous Urge numbers ol
occupations that are not in their nature
hazardous. It might be sufficient to say
that this is no concern of plaintiff in error,
since It is not contended that its businesses
of logging timber, operating a logging rail-
road, and operating a sawmill with power-
driven machinery, or either of them, are
ntmhacardous. Plymouth Coal Co. v. Penn-
sylvania, 232 U. S. E31, 544, 68 L. ed. 713,
719, 34 Sup. Ct. Rep. 359. But further, the
question whether any of the industries
enumerated in g 4 Is nonhazardous will be
proved by experience, and the provisions of
the act themselves give sufScient assurance
that if in any industry there lie no acd-
dent, there will be no assessment, unless
for expenses of administration. It is true
that, while the section as originally enacted
provided for advancing the classification of
risks and premium rates in a particular
establishment shown by experience to 1m
unduly dangerous because of poor or cara-
lesB management, there was no correspond-
ing provision for reducing a particular in-
dustry shown by experience to be included
in a class which imposed upon it too high a
rate. This was remedied by the amendment
1916, quoted in the margin, above, which,
however, cannot affect the decision of th*
.A^iOOglC
1911.
MOUNTAIN TIUBSB CO. T. WABHCfOTON.
prcMnt cue. But In th» Kbience of an?
particular flhoning of erroneouE clBraiflea'
tion, — and tbere ii none, — the evident pur-
pose of tbe original act to claaalfy the vari-
ous occupatI<ms according to tlie respective
bazard of each Is sufficient answer to anj
oontentlon of impropei' distribution of the
Sbttrden amongst the industries themselves,
i *n>ere remains, therefore, only the con-
tention that it I* inconsistent with the due
process and equal protection clauses of the
14th Amaidment to impose the entire oost
of acddent loss upon tiie indiutrles In which
the losses arise. But if, as the legislature
of Washington has declared in the 1st sec-
tion of the act, injuries In euch employ-
ments have become frequent and inevitable,
and if, as we have held in New York C. R.
Co. T. White, the state is at tibertj, not-
withstanding the 14th Amendment, to dis-
regard questions of fault In arranging a
■jstem of compensation for such injuries,
we are unable to discern any ground in
natural justice or fundamental right that
prevents the state from imposing the entire
burden upon the industries that occasion
the loasea. The act in effect puts these hac-
ardoQs occupations In the category of dan-
gerous agencies, and requires that the losses
shall be reckoned as a part of the cost of
the Industry, just like the pay roll, the
rqiair account, or any other item of cost
The plan of assessment insurance is closely
followed, and none more just has been sug-
gested as a means of distributing the risk
and burden of losses that inevitably must
occur, in spite of any care that may be
takea to prevent them.
We are clearly of the opinion that a state,
in the exercise of its power to pass such
legislation as reasonably Is deemed to be
necessary to prumote the health, safety,
and general welfare of its people, nuy regu-
late the carrying on of industrial occupa-
tions that frequently and inevitably pro-
duce personal injuries and disability, with
consequent loss of earning power, among the
men and women employed, and, occasional-
ly, loss of life of those who hsTe wives and
children or other relations dependent upon
them for support, and may lequire that
these human keaes shall be charged against
the industry, either directly, as is done in
«the case of the act sustained in New York
M G. R. Co. V. White, 243 U. S. 18S, 61 L. ed.
' tf67. 37 Sup. CL Eep. 247, or by pubUdy'ad-
minlstering the compensation and distributing
the cost among the industries affected by
■wans of a reasonable syatem of occupa-
tion taxes. The act cannot be deemed op-
pressive to any class of occupation, provided
the seals of compensation is reasonable, un-
Usa the loss of human life and limb is found
1b experience to be so great that, if charged
to the industry, it leaves no sufficient mar-
gin for reasonable profits. But certainly.
If any industry involves so great a human
wastage as to leave no fair profit beyond
It, the state Is at liberty. In the Interest
of the safety and welfare of its people, to
prohibit such an Industry altogether.
To the criticism that carefully managed
plants are in effect required to contribute
to make good the losses arising through the
negligence of their competitors, it is suffi-
cient to say that the act recognizes that no
management, however careful, can afford
Immunity from personal injuries to em-
ployees in the basardous occupations, and
prescribes tiiat negligence is not to be de-
terminative of the question of the respon-
sibility of the employer or the industry.
Taking the fact that accidental injuries are
inevitable. In connection with the impos-
sibility of foreseeing when, or In what par-
ticular plant or industry, they will occur,
we deem that the state acted within its
power in declaring that no employer should
conduct such an industry without making
stated and fairly apportioned contributions
adequate to maintain a public fund for in-
demnifylog Injured employees and the de-
pendents of those killed, irrespective of the
particular plant In which the accident might
happen to oceur. In short, it cannot be
deemed arbitrary or unreasonable for the
state, instead of Imposing upon the partieu- '
lar employer entire responsibility for losses
occurring in his own plant or work, to im-
pose the burden upon the industry through
a system of occupation taxes limited to the
actual losses occurring in the respective
classes of occupation. ^
The idea of special excise taxes for regu-^
latlou and'revenue, proportioned to the ips-*
cial injury attributable to the activities
taxed, is not novel. In Koble State Bank
V. Baskell, 219 U. S. 104, 65 L. ed. 112, 32
L.R.A.(N.S.) 10B2, 31 Sup. Ct. Rep. 186,
Ann. Cas. 191SA, 487, this court sustained
an Oklahoma statute which levied upon
every bank existing under the laws of the
atate an assessment of a percentage of the '
bank's average depoaits, for the purpose of
creating a guaranty fund to make good the
losses of depositors in insolvent banks.
There, aa here, the collection and distribu-
tion of the fund were made a matter of pub-
lie administration, and the fund was created
not by general taxation, but by a special
imposition in the nature of an occupation
tax upon all banks existing under the laws
of the state. In Hendrick v. Maryland, 2SS
U. 8. 810, 622, S9 L. ed. 3SG, 390, 35 Sup
Ct. Rep. 140, and Kane v. New Jersey, 242 '
U. S. 160, 169, 61 L. ed. 222, 37 Sup. Ct. Rep.
30, wa austalned laws, of a kind now famil-
iar, imposing Htiense fees upon motor vehi-
.Google
S7 SUPEEUE COUKT REBORITSR.
Oct. Tmu,
elea, graduated vrcordiog to bone power,
■o ft« to Eecure compensation for the Um
of improved roadways from a claaa of uktb
for wliose needs Uiej arc eaoential, and
whoM opeiationa over them ars peculiarly
iiijurioU9. And see Charlotte, C. k A. S..
Co. V. Gibbes, ]42 U. S. 388, 394, 385, 3Q
L. ed. 1051, 10C4, 1055, 12 Sup. Ct. Eep.
265, and casea cited. Man^ of the states
have laws protecting the sheep industry by
imposing a tax upon dogs in order to
ereat« a fund for the remuneration of sheep
owners for losses suffered by the killing of
their sheep by dogs. And the tax is im-
posed upon all dog owners, without regard
to the question whether their particular
dogs are responsible for the low of sheep.
Statutes of this character have been aus-
tained by the state courts against attacks
based on constitutional grounds. Morey v.
Brown, 42 N. H. 373, 375; Tenney v. Leni,
16 Wis. 600; Mitchell y. Williams, 27 Ind.
62; Van Horn v. People, 46 Mich. 1B3, 186,
IHfi, 41 Am. Rep. 150, 0 N. W. 246; Long-
year V. Buck, 83 Mich. 238, 2*0, 10 L.R.A.
42, 47 N. W. 234; Cole v. Hall, 103 111. 30;
Hoist V. Roe, 3B Ohio St 340, 344, 48 Am.
Bep. 450; McGlone v. Womack, 129 Ky. 274,
«283, et seq., 17 L..KA.(N.S.) 855, 111 S. W.
^688.
* ^e are unable to find that tiie act, in
its general features, is in conflict wttlt the
]4tb Amendment. Numerous objections are
urged, founded upon matters of detail, but
they call for no particular mention, either
because they are plainly devoid of merit,
are covered by what we have said, or are
not such aa may be raised by plaintiff in
Perhaps a word should be said respect-
ing a clause in g 4 which reads as follows:
"It shall be unlawful for the employer to
deduct or obtain (sic) any part of the
premium required by this section to be by
bim paid from the wages or earnings of his
workmen or any of them, asd the making
or attempt to mol^e any such deductions
shall be a gross mtsdemeanor." If this were
to be construed bo broadly as to prohibit
employers and employees, in agreeing upon
wages and other terms of employment, from
taking into consideration the fact that the
employer was a contributor to the state
fund, and the resulting effect of the act upon
the rights of the parties, it would be open
to serious question whether, as thus con-
strued, it did not interfere to an uncun-
■titutional extent with their freedom of
contract. So far as we are aware, the clause
has not been so construed, and on familiar
l^-inciples we will not assume In advance
that a construction will be adopted such as
to bring the law into conflict with the Fed-
«al Constitution. Bochtel t. WUeon, 204
U. S. 36, 40, SI L. ed. SG7, 369, 27 Si^. Ct
Bep. 243; Plymouth Coal Co. v. Faon^ln-
nia, 232 U. 8. 631, 546, 58 L. ed. 711^ 780,
34 Sup. Ct. Bep. 369.
Judgment affirmed.
The Chiet JU8TICZ, Mr. Justice McKeB>
na, Mr. Justice Tan DeTanter, and Ifr.
Justice HcRoynoldB dissent.
COUfESCE «S>27(8) — EllCFLOTEBS* liTABrL-
irr— Skbvaut Ehgaoed iw "Ihixbstats
CoioaBOE."
1. An employee of an interstate rail-
way company who was engaged in the work
of cutting a tunnel was not thm employed
in interstate commerce within the meaning
of the Federal Smployen' Liability Act ^
April 22, 1908 (38 Stat at L. 85, dmp.
149, U. 8. Comp. StaL 1913, § 8067), since
the tunnel, being only partially bored, was
not in use as an instrumeutaU^ of intar-
stateor
Commerc*.]
OouuBBCE «=>8(6)— SiATi BxaTrLA.TiotT —
Wobkuen'b CoMPKHatnon— ImxBfixata
BailwaY.
2. The operation of a state Workmen's
Compensation Act in the case of an injured
IN ERBOR to the United States Circuit
Conrt of Appeals for the Ninth Circuit
to review a judgment which affirmed a judg-
ment of the District Court for the Western
District of Washington in favor of defend-
ant in a personal-injury aotiou. Affirmed.
Bee same case below, 147 C. C. A. 246.
233 Fed. 239.
The facts are stated in the opinion.
Messrs. John T. Casey and Thomas J.
Walsh for plaintiff in error.
Messrs. Heman H. Field and George W.
Karte for defendant In error.
*Mr. Chief Justice Wbite delivered the*
opinion of the court :
Bayraond, the plaintiff in error, sued th*
railway company, a foreign corporation diH
IwFnrWhsrei
W topta * KIT-NUHBIR la an Key-Msmbwaa DlnstS * Id1«b
A^^OOglC
3318.
RAYMOND T. CmCACX), M. & BT. P. B. CO.
ing btuinea* In Washington, to neover
damagM resnltlng from injuriM suHtained
bj him while in iti employ. The petition
a]]«^ that the defendant operated an in-
terstate commeTM railroad between Chicago
and Seattle, and that, for the purpose of
■hortening its main line and making more
efGcient and e.ipeditioua ita freight and
passenger service, nas engaged in cutting a
tunnel through the mountain between Hor-
rick's Spur and Kockdaie, In Washington.
It was averred that plaintiff was em-
ployed by the defendant in the tunnel a* a
laborer, and that, while he was at work,
hie pick struck a charge of dynamito which,
through the defendant's negligence, had not
been removed, and that from the explosion
which followed he had sustained serious in-
The defendant's answer contained a gen-
eral denial and alleged that at the time and
place of the accident the raiiroad and Ray-
mond were not engaged in interatate com-
merce, since the tunnel wsji only partially
bored, and hence not in use as an instru-
mentality of interstate commerce. It was
further aUeged that the court was without
jurisdiction to hear the cause because of
the provisions of the Washington Work-
men's Compensation Act (Laws 1611, chap.
74), with whose requirements the defend-
ant had fuliy complied. The reply of tho
plaintiff admitted the facte allied in the
answer, but denied that they constituted
defenses to the action.
The trial court entered a judgment for
wthe defendEmt on the pleadings, and this
* writ of error Is prosecuted to a*jndgnient
of the court below, aSirming sock actioi.
147 C C. A. 245, 233 FM. 230.
Considering the soH a* baaed aptn tka
Federal Employers' Liability Ast, It la ear>
tain, under recent declaions ol thia conrt,
whatever doubt may have odsted in th*
minds of some at the time the Judgment
below was rendered, that, under the facta
as alleged, Raymond and the railway com-
pany were not engaged In interstate com-
merce at the time the Injuries were suf-
fered, and consequently no cause of action
was alleged under the act. Delaware, L.
A W. R. Co. T. Yurkonis, 238 U. 8. 438, 58
L. ed. 1397, 35 Sup. Ct. Rep. 802; Chicago,
B. A Q. R. Co. v. Harrington, 241 U. S. 177,
00 L. ed. B41, 30 Sup. Ct Rep. 517, 11 N.
C. C. A. SB2; Minneapolis ft St L. B. Co.
T. Nash, 242 U. B. 619, ei L. ed, — ,37
Sup. Ct, Bep. 289.
It is also certain that if the petition be
treated as alleging a cause of action under
the common law, the court below was with-
out authority to afford relief, «a that re-
sult could only be attained under the local
law. In accordance with the provisions of
the Washington Workmen's Compensation
Act, which has this day been decided to be
not repugnant to the Constitution of the
United SUtes (MounUin Timber Co. v.
Washington, 243 U. 8. 219, 61 L. ed. 685,37
Sup. Ct R^. 280). And this result is con-
trolling even although it be conceded that
the railroad company wu, in a general
sense, engaged in intaratote commerce, since
it has been also this day decided that that
fact docs not prevent the operation of a
state Workmen's Compensation Act (New
York a R. Co. V. White. 243 U. S. 188, 61
L. ed. 667, 87 Sup. Ct. Rep. 247).
Affirmed.
>v Google
W SDFRE3fS CODBT BXPOBTES.
Oct. Tcsm,
VOLUSIOIT #sl44— III FOO— VIOLATIOR OT
BUI.E— OOHTBIBDTOBX OAtrBB— DiVISlOIT
or Dawaoks.
The maatcr and owneri ol a vesiel
niik In A coltiaion which followed her vlo-
lation of intemation&l ruta IS, providing
that "a ateam veaael hearing, apparently
forward of her beam, th« fog lignal ol &
Teasel the Dosition of whicb ia not aacer-
tained ehall, so far as the circumatancea
of the case admit, atop her enginea, and
then navigate with caution until danger of
eoUieion ia over," cannot escape an appor-
tionment of the damages with the other
veaael, which was palpably at fault, under
the admiralty rule of croaa liabilitiea obtain-
ing when both veBsela are at fault, without
■bowing not merely that such violation of
the rule might not have been one of the
eaueea of the disaster, or that it probably
wai not, hut that It could not have been.
[Sd. Nots.— For other vaMm, aa* Oollialoi
Decided March
ON WRIT of Certiorari to the United
States Circuit Court of Appeala for the
N(nth Circuit to review a decree which af-
firmed a decree of the District Courii for
the Northern District of California, ad-
judging two ships to have been equally in
lanlt for a collision. Affirmed.
See same case below, 136 C. 0. A. 32, ZIQ
Fed. 134.
Tbe facta are stated In the opinion.
Messrs. Bdmnnd B. HoCIanahaii, S.
Haaket Derby, sJid L. Sussell Alden for
petitioner.
Mr. J. Parker Kirlin for respondent.
Mr. Justice Clarke delivered the opinion
of the court:
On his own behalf and on behalf of the
S owners, officers, and erew of the Norwegian
■ steamship Selja, the 'petitioner, Olaf Lie,
her maater, instituted this suit in admiralty
against the American ateaniBhlp Beaver, to
recover for the loss of the Selja, her equip-
ment and the personal effects of her ofGcers
and crew, which was occasioned hy the col-
lision of the two ships on the afternoon of
November 22, 1910, near Point Beyes, on
the California coast. For the purposes of
trial thia case waa consolidated wlUi an
Intervening libel by the owners of the cargo
of the Selja, and with an independent
anit I7 her charterers to reoover for loea of
freight.
When approaching San Fraodsco, the end
of her voyage from Tokohama, the Selja,
a freight-carryiiig steamship, collided in a
tog viUi the Beaver, a passenger and
freight-carrying steamer then on a vc^age
from San Francisco to Portland, Oregon,
and waa so damaged that she sank, a total
loss, In about fifteen minutes.
From 1 o'clock in the morning of No-
vember 22d, the Selja had been running in
a fog which, for a considerable time before
the collision, was so thick that it was pos-
sible to see only about twice her length, —
about 800 feet.
The master of each ship makes the char-
acteristic claim that at the moment of col-
lision he had his engines working full speed
astern, and each claims that his vessel was
without headway when the two came to-
gether. It is beyond controversy, however,
that the Beaver was running at a rate of
speed much too high for prudent navigation
in the then prevailing fog until her master
heard the whistle of the Selja, about three
minutes t>efore the accident, and it la be-
yond controversy also that this negligent
speed contributed directly to cauae the col-
lision. Hie two lower courts agree that the
Beaver was culpably negligent, but they
also dnd that the master of the Selja was
likewise negligent In the navigation of his
ship In a manner which eontributed direct-^
ly to bring about the accident, and there- ^
fore, while allonlng'recovery by the owners
and underwriters of the cargo, by the char-
terers of the Selja, and by her other oOEcers
and crew, they decreed that, apportioning
the damages suffered by the owner and
master of the Selja and by the owner of the
Beaver, under the usual rule of cross lia-
bilities, there could be no recovery by the
master. Lie, personally, or by the owners of
the Selja, and it Is from this denial of the
right to recover by Lie and by the owners
of the Selja, and from the order as to the
payment of costs, that this appeal is prose-
The petitioner claimed In the courts be-
low, and In this court still claims, that If
the master ol the Selja was n^ligent at
all, which Is denied, his negligence waa of
such a character and had so spent ita effect
long before the accident, that, in the most
unfavorable view that can l>e taken of it. It
was a remote, and not a proximate, cause
of the eolllsiou, and that, therefore, the
Beaver being palpably negligent he has a
lawful right to recover.
The master of the Selja admits that he
heard what ultimately proved to be the
naming fog whistle of the Beaver, at 3
o'clock, and therefore the ahipa most be con-
I* topic * KEIT-mJIIBBR In all Kajr-Nnmbared DIssats * Indens
D,at,z.d>,.'^-.00'^IC
1910.
UE *. SAK FHANCIiiCO * P. & & CO.
271
■idered u withiti tha danger zona from that
time forward, and the dedaion of the caM
tnnia upon wtiat waa done hj tba two vet-
aela daring the aizteen minute* which
•lapwd between t o'olodc and the moment
of collision.
Th^ ia all of the enstomary ecoflict
between the atoriea told by the offlcera of
the reepective TeeselB, but we think that a
correct and jnat decision ol the eaae may be
arrived at bj accepting the etatementa of
the muter of the Belja, aa they appear ia
TariouB parta of the record.
His nnrrative of wliat occurred during
th* fateful sixteen minutes after S o'clock
Biaj be condensed into the following:
At 8 o'clock I waa running at half apeed
• (■ knots an hour) and jay shortly after
"that I heard for the flrst'time "a whistle
about right ahead" — "dead ahead" — which
proved to be the whistle of the Beaver,
sounded faint, but distant," and I could
then see only about two lengths of my
(about SOO feet). The aea waa calm, with
a long westerly awell, there were no m
am the ship to interfere with my hearing
the whiatle, which blew at intervals of
fifty-six or flfty-aeven aeconda and for five
aeconda each time. When I first heard the
whistle it aouaded far away, and "it Just
came into my miad that it might be one of
the fog home off the Golden Qate," at Point
Bonita, about 20 milea away. After I
heard the whittle the third time I <
menced to time it and continued to do to
until five minutes past 3 o'clock, when I
concluded that it waa the whittle of an ap.
proaching steamer, and I reduced ipeed
from half speed (6 bnott) to ak>w apeed (S
knots an hour) becaute "I considered that
< knots waa not moderate enough under
the drcumttancea." I did not stop my
engines when I firat heard the whiatle or
when I concluded that it waa that of sn
approaching ateamer "because the sound
waa located aa good aa it could be located
In the fog, and ehowed abaolutely no danger
of collision." (Thia statement it twice re-
peated in the testimony.) '1 waa familiar
with the international rule which requires
a steamer to stop in a fog." During the
entire fifteen minutas before the accident
I heard the whistlt of the Beaver blow
every fifty-iix or fifty-teven teconds and for
five eeconds at a time, and the Selja blew
one single blaat between each two blasts of
the Beaver's whistle; I "auawered his
whistle" from 3 o'clock until the collision.
My engines were reduced to Bk>w speed at
iWe minutea after 3 o'clock, and they were
kept at this speed — 3 Icnota an hour — until
3:10 o'clock, when they were stopped. At
3:13 my ship still had steerage way upMi
bar, and at 3:14 afae waa not quite at a
etandstill, but was still moving a llttlstt
through the water, and I intended to a^S
swer the Beaver's nsxt whiatle with'two*
blasts of my whistle, which would have
meant that my boat was stopped and had
no way upon her, I did not tell my third
office to blow the two whistlea, aa I intend-
ed to do, "becauae the Beaver loomed In
sight and I saw her blow three whlatles."
I mean "I saw steam come out of his
whisUe and I heard it, of course, at the
same time." "She loomed in sight and the
three whistles were almost at the same
time." When I saw and heard the three
whistles from the Beaver, I told my third
officer to blow tiiree whistles, and I rang
"full speed astern" on my engine at the
same time. I noticed that the Beaver waa
coming fast by the way she cut the water.
I was watching the Beaver carefully, and I
thought probably she would paas wide ol
me, her etarboard side waa widening aQ
the time and I was watching her. I tzak
saw the Beaver approaching at about 3:19.
She waa then about 900 feet away, and
about a minute after, the collisiim cani&
llie foregoing statemoits of fact are aa
favorable to the petitioner aa he can possi-
bly deserve. They leave out of account a
number of statements claimed to have bean
made by him: to the maater of the Beavsr
Immediately after the accident; to the agent
of the company which had the Selja under
charter on the day after the accident, and
to the United States inspector of steam vea-
sola on the second day after the acddmt^ all
of which are in serious conflict with, and
are much leaa favorable to, hia claim tluua
the summary we have given.
In the year 188B repreaentatlvaa of over
thirty of the maritime natione of the world
met in convention at Washington for the
purpose of dlaeuaslng the international code
of rules to prevent collisions at aea, and of
suggesting such changes and modiflcations
BB experience had shown to he necessary.
The recommeudations of thia convention
were adopted by Act of Congress of Auguat
IB, 18B0 (26 SUt. ai L. 320, chap. B02),„
became effective by proclamation of thel
'President (28 Stat, at L. 12G0) on the 1st*
day of July, 1897, and have been operative
ever since.
Of these rules the fallowing Is applicable
to the case we are considering:
'Art. IS. Every veeael shall, in a fog,
mist, falling snow, or heavy ralnatorme, go
at a modsrate speed, having careful regard
the eiiatlng aircumatanoes and condl-
A steam veaael hearing, apparently forr
ward of her beam, the fog signal of a ves-
asl the position of which la not ascertained
shall, ao far as tht elranmstances of th*
,A_.OOglC
87 6UPREUB COURT EEPORTER.
Oot. Ixuc.
MM kdmit, atop her engine^ and then bktI-
gftta with caution nntil dAiigar of colliaion
The most corsorj teaAtr of thU rule
mnct we that while the first paragraph of
it give* to the navigator, diecietion aa to
what shall be "moilerate tpeed" in a- log,
the command of the second paragraph ia
ImperatiTe that he ahall atop hia engine*
when the conditione deicribed confront him.
The difficultj of locating the direction or
■ource from wiiich aounda proceed in a fog
rendsri It not necesaarj to dwell upon the
purpose and obrioua wiodom of Uiis aecond
paragraph of the rule.
Hr. Justice Brown, an experienced ad-
miralty lawyer, but repeated the expreael<»
of many oaeea, which finds new Ulnetration
In the mistake in thla caaa made by the
master, Idc^ in determining the location
and the distance of the Beaver, when he
•aid. In The Umbria, 166 U. 8. 404, iOS, 41
L. ed. 1063, lOeB, IT Sup. Ct Rep. 610:
"It is difficult to locate the eiact position
«f a Teaiel in a fog, and still more difficult
to determine her course and distance."
And the circuit oourt of appeals in this
case expreases the result of testimony con-
stantly met with in the trial of such cases
when it saye: "The cases are very numer-
ous in which an approaching whistle, which
sounded far off, was really very close, and
^ In which the sound seemed to c(»ne from one
• direction, while In fact, it came from an-
• other. Indeed, it is a matter of 'common
knowledge that sounds in a dense fog are
▼ery deceptive." [136 C. C. A. 86, BIB Fed.
134.]
It Is enough to say that this second para-
graph Is an addition to the former rule for
preventing collisioos at sea, which the In-
ternational Conference recommended, after
full discussion by the most intelligent sea-
faring men of many nations; that, at tlie
time of the collisioD, obedience to it was
commanded by act of Congress and by the
law of the country under the flag of which
Uie Seija was sailing, and that if it had
been obeyed the collision would not have
occurred.
By his own statement, aa we have
epitomized It, lAe, the master of the Selja,
confeBses that when he first heard the
whistle of the Beaver ha realized that it
was "forward of the beam" of hi* ship, and
although it is plain that he was not able
to ascertain the position of the vessel from
which the danger warning came, for he
thought It the whistle at Point Bonlta,
SO miles away, yet he not only did not stop
his engines, as required, bu^ on the con-
tnuy, he continued to run them for five
minutes following at half speed (6 knots
an hour) in thick fog, outil each succeeding
whistle of tiis Beaver, sonndlng nearer Uuui
the one before, at length Gonvincad him that
it was the whistle of an approaehing
■teamer. But even then, when conrinoed
that the danger signals which he had been
hearing repeated at one minute intervals
for five minutes were from an approaching
steamer still "forward of his beam," he
did not obey the rule by stopping his
engines, but contented himself with redu-
cing his speed to alow, 3 knots an hour, not
out of deference to the rule of law, but be-
cause, aa he says, "Tl considered that S knots
was not moderate enough under the drcnm-
stancea," and this speed he continued for
five minutes longer, nntil ten minutes past
S, when, at length, he ordered his engines
stopped, with the result, he is obliged toai
confess, that at 8:14, two minutes before^
*Uie collidon, his ship still had steerage*,
way upon her, "was not quite at a stand-
still," and a moment later the crash same.
It la of no avail for thia master to a»j
that at the instant of the accident he
thinks the mtonentum of his sliip bad been
oyercom^ and that she was commencing tft
move backward in response to the "full
speed aatem" order, which had been given
during the instant that had elapsed be-
tween the appearance of the Beaver through
the fog and the coming of the abips to-
gether, for the evil bad been done and the
collision rendered inevitable.
When it la considered that the statA-
raent of the master of the Selja as to the
moment when he gave the order to reduce
speed from half to slow, and then front
alow to stop, and then from stop to full
speed astern, are all but approiimationst
arrived at after the disaster to his ship had
occurred, when every poaaible Influence, con-
scious and unconscious, was operating Ut
induce H recollection favorable to the eon-
elusion he most desired. It is not poseibls
in the administration of practical juatles
to avoid the conclusion that the effect of
the wilful diaobedience of this imperative
and important atatutory rule of law, which
should have governed his conduct, continued
aa an effective force, operating on the mov»-
ment of his vessel to the instant of collirion,
driving her forward steadily, even though
in the last momenta slowly, to the fateful
point of intersection of the courses of th«
two shipa.
Such a state of faet make* sharply ap-
plicable the eoucluslon of this court in Th*
Pennsylvania, IB Wall. 125, 22 L. ed. 148:
"But when, as in this case, a ship at tho
time of a collision is In actual violation
of a statutory rule intendM to prevent col-
. lialons, ft is no more than a reaaonable pre-
sumption that the fault. If not the sol*
cause, was at least a contributory cause at
,A_.OOglC
UIO.
UEMPHIS ST. B. CO. r. HOORB.
27S
the ditaater. In EOeh * cam the burden
rata upon the ahip of ■howiag, not merelr
that her fault might not have been one of
the cauaea, or that it probablf waa not,
Sbut that it could not have been."
S * The reeord before na not only falla to
ahow that the fault of the Seija might not
have been one of the causea of the accident,
or that it probably vaa not, or that it could
sot have been one of the causea of it,
on the cootraiy, it dearly ihone, aa wa
hare lesi, that the n^ligent failure to ob-
aerre the atatutory mle contributed direct-
ly to cauae the collision.
Tlia caae ia not one for the ^iplicatlon of
refinementa aa to what would have been
good Bcamanahip without the rule, auch aa
we are Invited in argument to conaider,
nor is it a case tor conaideration of the
doctrine of major and minor fault. Both
of the maatcTB were palpably negligent In
reapecta which contributed directly to cause
the colliHion; the negligence of each eon-
tinned to operate aa an efficient cause until
tba moment when the accident occurred, and
we agree with tbe lower courta that the
caae is one in which the nuater and otrner
of the Selja muat be left to auffer their
aelf-inflicted loaa.
The judgment of the Circuit Court of Ap-
peals la affirmed.
(M V. B. M>
MEMPHTB STREET RAILWAY COM-
PANY, Petitioner,
Courts ^=366(22)— Follow ino DKCisiOHfl
or State Gov bis.
1. The Federal Supreme Court will ae-
oept aa conclusive the view of tbe higbeat
atate court that the aole purpose of Teon.
Acta 1903, chap. 601, providing that "when-
ever a nonresident of the state of Tenneeaee
qnaliltes in this atate aa the executor or
adminlBtratcr of a person dying in or leav-
ing assets or property in this state, for the
erpose of suing and being sued, he shall
treated aa a citiien of Uila state," ia to
determine prlvil^ea in the atate courts of
nonreaidenta who may be appointed ad-
miniatratora or ezMutora of the estates of
persona auch as are described in that act.
[Bd. Note.— For oUur earns, saa Coorta, Cant.
Dig. i MO.!
CoBBTB *=i3Il— Juris orcTi ON — Dtvibse
Oinzssanip— Suit bt Nohbksuibnt Ad-
inNIBTKATOB.
2. The requisite diversity of cttlzeneblp
to austain Federal jurisdiction must be
deemed to exist where a citizen of Arkansas,
In hia r^reaentative eqiaclty aa adminia-
trator, under appointment by a probate
court of Tenneeaee, sues a Tennesaee cor-
poration for wrongfully causing the death
of his decedent, although by Tenn, Acta 1U03,
chap. COl, it ia provided that "whenever a
nonresident of the state of Tennessee quali-
flea in this state as the executor or ad-
ministrator of a peraoQ dying in or leaving
aaaeta or property la this state, for the
purpose of auin^ and being sued, be shall
be treated as a citizen of this state," in view
of the declaration of the highest state court
that the only purpose of this act la to deter-
mine privilegea in the state courta of non-
reaidenta who may he appointed adminis-
trators or executora of the estates of persona
auch aa are deacrtbed in the act.
laaa. asa Coutta, Cant.
[Bd. Not».-~We
Dfc I Kg.]
0".
Argued January 20, 1917. Decided Maroh
«. 1017.
,M WRIT o( Certiorari to the United
Statea Circuit Court of Appeals for
tbe Sixth Circuit to review a judgment
which affirmed a judgment of the District
Court tor the Western District of Tennessee
action by a nonresident administrator
against a Tennessee corporation for wrong-
fully causing the death of the decedenL
Affirmed.
ae below, lie C. C. A. 634,
232 Fed. 70S.
The facta are atated In the opinion.
Measra. Roane Waring and Luke K,
Wright for petitioner.
Uessra. Ike W, Orabtree and Uilton J.
Anderson for respondenL
«
e
Ur. Justice Clarke delivered tbe opinion*
of the oonrt:
Tbe reapondent, S. C. Uoore, a citizen of
Arkanaas, in his representative capacity
aa administrator of the estate of Ivy B.
Douglas, deceased, under appointment by
the probate court of Bhelby county, Ten-
nessee, sued the petitioner, the Memphia
Street Railway Company, a corporation
organized nnder the laws of Tennesaee, in
tbe United States dlatriet court for tba
western district of Tennessee, for wrong-
fully causing tbe death of hia decedent.
He recovered judgment, which was affirmed
by the circuit court of appeals, and the
caae is here on certiorari for review of the
holding of that court that the plaintiff had
legal capacity to maintain the suit in »
Federal court.
On the face of tbe declaration there was
the requisite diversity of citizenship to give
the Federal court jurisdiction, but the pe-
87 aa-18
I* topic A K£T-NUHBBB In aU Ker-NumbCTed Dlgeata * Indai
A^iOOglC
274
87 SUPBEME COURT RBFORTEE.
tlUonar elaims Gut the respondent, Uoore,
■although a. citizen of ArkuiBM, must be
treated u a citizen of Tenneewe under the
■tatut« of that state, entitled, "An Act to
Declara That, for ths Purpose of Suing and
Being Sued, a Nonresident of Tennessee,
Who Qualifies as Executor or Adminiatrator
^In Tennessee, Shall Be Considered a Citi-
«sen of Tennessee, and to Provide for the
• Service of'FroocBs upon Him" (Acts 1S03,
chap. 601, p. 1344), which provides;
"That whenever ft nonresident of the
■tate of ToinesBee quslifles in this state ss
the executor or administrator of a person
djing in or leaving assets or propertj' In
this state, for the purpose of suing sjid
being sued, he shall be treated as
of this state."
The regamicder of the act preflcribes the
method of service of suDtmons upon such a
nonresident executor or administrator.
Upon a full review of tbs legislation of
the state In Southern R. Co. v. Maxwell,
113 Tenn. 404, 62 S. W. 1137, the supreme
court of Tennessee decided that the sole
purpose of this act is to extend to such
nonresident executors and adniinlBtraton
as are described in it the privilege of suing
in the state courts in forma pauperis, and
that the effect of it, when read with thi
other statutes of the state on the subject, ii
to confine this privil^e to the people of the
state or to suits devoted tc their intereat,
"since the right Is not extended to nonresi-
dent administrators genera1l7, but only to
those who have qnallfled in this state as
the personal representatives of persons
dfing or leaving assets or property in thli
state." No conflict with the Federal Con-
stitution or laws being involved, this con-
struction of the state statute will be accept-
ed bj this court as conclusive. Glmendorf
V. Taylor, ID Wheat 162, 169, 8 L. ed. Z8S,
£92; Old Colony Trust Co. t. Omaha, 230
U. S. 100, lie, 67 L. ed. 1410, 1416, 33 Sup.
Ct. Rep. 987.
But, irrespective of this rule, we quite
agree with this authoritative declaration
that the only purpose of the act Is to de-
termine privileges in the state courts of
nonresidents who may be appointed adminis-
trators or executors of the estates of per-
sons such as are described in the act.
There Is nothing whatever in the statute
which Indicates any intentiiai on the part
of the legislature to exclude nonresident
gaxecutors or administrators from resort to
SP Federal courts under appropriate cimdl-
tions, and the construction which Is urged
vpoo us to give to it such an effect is too
■triuned and artificial to be allowed. The
Judgment of the Circuit Court of Appeals
is affirmed.
' MIRTAM McALLISTEB, as Administratrix
of the Estate of A. J. UcAlliater, De-
ceased, Plff. in Err,
CHESAPEAKE & OHIO RAILWAY COM-
PANY and Hayeville ft Big Sandy Rail-
road Company.
OouBTs ^=>38CK4>— JOBisDioTioN Bku}w—
Cebtiftcaix.
1. An order of a Federal district Judge
which, in allowing a writ of error from
the Federal Supreme Court, recited that
plaintiff's petition "had been dismissed by
the Judgment of this court upon considera-
tion solely of the question of this oauit's
Jurisdiction of the action," takes the place
of the oertiflcate required by the Judicial
Code, I 238.1 govemiug the direct review in
the Federal Supreme Court of Uie judg-
ments and decrees of the district courts.
[Ed. Nota.— ror oUiar cues, sea Caurta, Cent.
Dls. I 1(01.1
Railhoadb «=>S44(1)— SumoicitoT or Pa-
Tmon— NxaUQBM cb.
2. A cause of action against an operat-
ing railway company is stated in Ken-
tucky by allegations In the petition that oa
a speeifled day when plaintiff's decedmt
"was at or near a publie crossing . . .
a place in the town of Fullerton where
numerous people were accustomed to be and
travel," as the railway company well knew,
without fault on his port, and while in
plain view of the railway company's agoita
and servants, he was n^ligently and wan-
tonly run down and killed by a train oper-
ated by such railway oompany, and that Uis
latter's n^ligence eonsisted & the excessive
speed of the train, failure to ke^ prc^Mr
lookout for travelers at such a pface, and
failure to give adequate signals or warnings
of the approaching tr"'-
rOd. Note.— For otlu
Cent. Dla. I lUI.]
Railboads ft=>2(!9(l) — Ijabiutt or Imb-
BOB CoHPAKT— Neouokkck or Lxssiac.
3. A lessor railway company continues
liable to the public in Kentucky, notwith-
landing the lease, for the torts c^ its leasee
in operating the leased railway.
[Ed. Note.— For other cbhi. mat lUllroodt.
Cant. Dl(. it a02, HX. 808, 813.]
BmoVAi. or Causes <e=>SS — SEPAaasLB
OoKTBovEBST— Fni.UDUi.EnT Jo in deb.
4. A nonresident operating railw»
company Joined as party defendant with
Its lessor, a resident railway company, own-
ing the road, in an action grounded upon
the negligent operation of the road by the
lessee, may not remove the cause to a Fed-
eral court as presenting a separable con-
troversy between It and the resident plain-
tiff, where the petition, tested by the local
law, stated a cause of joint liability, and
no facts are allied in support of the
charge that the joinder of the two com-
panies was fraudulent except that it woa
made for the purpose of preventing removal
to the Federal court.
[no. Hotg.— For other ca*e^ see Removal et
Causes. CuiC DIa. |1 lU. m.}
[No. 748.]
t other oaasa. see RallnadB.
!• teple A KBT-mniBBR la aU Ker-Nmnbvrad DIswta A ladna
k i; uii. e. n. M Stat, un [Comp. at uu, i uu.]
UOALLISTER ▼. CEESAFKAEE A 0. B. O0>
IN ERROR to tlie Distrlet Conrt of tli«
United SUtM for the Eut«m Dlstriot
of KeDtncky to reviaw « Judgment diimiss-
ing the petition in an ftctkn for dea,Ui
which hi4 been removed to that court from
« itAte court. Reveried, with dlreetlone
to remand the cMe to the etaie court.
The facte are etated in the opinion.
Mesen. Allan D. Cole, W. T. Cole, and
H. W. Cole for plaintiff in error.
Meeera. E. Tj. Worthinrton, W. D.
Ooobran, I« Wrlgbt Browning, and Proo
tor K. Malio for defendante in error.
f * Mr. JuMico Olarbw delivered th* opinion
•f the oonrt:
On March 29, 1902, — flttaen years ilaee,—
tfaa plaintiff filed her petition tn the circuit
eourt of Greeaap county, Kentucky, against
tha Chesapeake 4 Ohio Railw^ Company, a
corporation organized under the laws of
Virginia, hereinafter called the Virginia
company, leieee, and the Maysville ft Big
Bandy Railroad Company, a corporation
organiced under the lawa of Kentucky, here-
inafter called the Kentucky company, the
owner and leesor of the railway on which
plaintiff's decedent, on March ISth, IMS,
was run down by a passing train and so in-
jured Uiat he soon thereafter died.
In due time, Uie Virginia company filed
%» petition for removal of tJie cause to the
^cdrenit eourt of the United'Btatea for tha
eaatem district of Kentucky, in which peti-
tion it is alleged: that there la in the ease
a separable controversy which is wholly be-
tween dtizens of different states, the peti-
tioner, a corporation of Virginia, and the
plaintiff, a cttieen of Kentucky; that the
Kentucky corporation Is not a necessary or
proper party to Uie cause, which can be de-
termined between the Virginia company and
the plaintiff withont reference to the Ken-
tucky company; and that the Kentucky
eorapany Is "wrongfully, fraudulently, and
falsely" made a party for the sole purpose of
preventing removal to the Federal eourt,
without any intention on the part of the
plaintiff of proving against it any of the acts
of n^ligenee alleged In the petition. It ie
charged that no cause of action Is stated in
the amended petition against the Kentucky
oranpany.
On May 24, 1905, the pUintiff filed a
motion to remand the case to the state court,
on the ground that the Federal court "is
withont jurisdiction to hear and determine
the cause," which motion was overruled on
the same day. Various consent continuance*
carried tiie ease ovo' for two and one-half
years, until December 27, 1007, -when the
plaintiff filed a motion to set aside "tha
order heretofore made denying her motion to
remand the case," and in support of this
motion, on the same day, she filed an an-
swer to tha petition for removal which is,
in substance, a detailed denial of all of the
allegations of that petition.
On the 25th of the following May (1003)
plaintiff's motion to reconsider the court's
ruling denying her motion to remand the
case was submitted, and thirty days given
for filing a brief, but it was not decided
until a year later, when, on May 24th, 1Q09,
it was overruled. Again various continu-
ances by consent caused the case to go over
for three years more, until May 27th, IS12,
when the plaintiff's motion to reconsider
the court's action iu overruling her motion
to remand wae again overruled. Then fol-^
low other continuances, aggregating two^
'years more, until, on May 25th, 1914, on*
motion of the defendant, the case was dis-
miseed for want of prosecution. In an order
which, tour days later, was set aside, and
again nothing was done for eighteen months,
until December 16th, 1S16, when the case
was a second time dismissed for want of
prosecution, in an order which was revoked
on the Zitb of the following July, at which
time the former action of the court in over-
ruling plaintiff's motion to remand the case
was reaffirmed, and the plaintiff, having
elected to stand on her motion to remand,
and "refusing to recognize the jurlBdiction
of tha United Btatei court or to proceed
with the prosecution of her case therein,"
upon motion. It was dismissed at plaintiff^s
On the next day the dfBtriet Judge al-
lowed a writ of error to this court in an
order reciting that plaintiff's petition "had
been dismissed by the Judgment of this
court upon consideration solely of the ques-
ti<m of this court's juriedicUon (4 the
The case Is properly In this conrt, ths
order of the diatrtct judge being sufficient
to take the place of the certificate required
by S Z3S of the Judicial Code [36 Stat, at
L. 1167, chap. 231, Comp. Stat. 1913, J
1216]. llzcelalor Wooden Pipe Co. v. Paciflo
Bridge Co. 186 U. 8. 282, 43 L. ed. 910, 22
Sup. Ct. Rep. 681; Hcnidon-Carter Co. v.
James N. Norris, Son A Co. 224 U. S. 4S6,
498, C6 L. ed. 857, 8S8, 32 Sup. Ct. Rep.
650.
The validity of the dental of the plaintiB*s
motion to remand the case, which is thus
brought before us, must be determined upon
the allegations of the amended petition and
of the petition for removal (Madlsonville
Traction Co. v. St. Bernard MIn. Co. 196
U. B. 239, 245, 49 L, ed. 462, 4S4, 25 Sup.
Ct Rep. 261), when tested I^ the laws <rf
,A.^OOglC
270
87 8UPREUB COURT REPOETEB.
Oot. 1
Emtnbkr (Tllinoli C. R. Co. t. Sheegog,
SIC U. B. 308, 54 L. ed. 20B, 30 Sup. Ct. Rep.
101; Chesapeake & 0. R. Co. t. Cockrell,
ese U. S. lis, 153, SS U ed. S44, 647, 34
Sup. Ct. Rep. 278). Fullj recogniring this
rule, the district court decided the motion
OD the face of the pleadingB, and its reaeona
for refusal to remand the case, as stated in
McAllister v. Chesapeake i 0. R. Co. 85 C.
C. A. 316, 157 Fed. 741, 744, 13 Ann. Cae.
elOQS, are, that the Eentuclcj company had
■ lawful authoritf'to lease its railroad to the
Virginia company (McCabs v. MayBville &
B. B. R. Co. 112 Ky. 861, 66 8. W. 1054),
that the allegation of plaintifTa amended
petition that plaint iS^e decedent waa in-
jnred "at or near a public crossing" is an
admission that he ^'bs a trespasser on the
railroad tracli at the time (Davis v. Chesa-
pealie A 0. R. Co. 116 Ky. 144, 76 S. W.
275) ; end that the lessor company is not
liable for injury to a trcspaBser by the negli-
gence of its iesece. These reasons were re-
flated at length by the district judge when
he denied the motion to reconsider hie re-
fusal to remand.
This conclusion of the district court, that
the allegation of the amended petition that
the deceased, "at the time ol the injuries
complained of, was at or near a public
crossing in tlie town of Fullerton," ia an
admiei'ion that he was a trespasser at the
time, is based, we think, upon on insufficient
■tatement of the allegations of the amend-
ed petition, and upon much too narrow a
view of the effect of the deciaiona of the Ken-
tucky court of appeals aa applied to the
facts pleaded In this case.
The allegationa of the amended petition
»re:
That since before the year 18D0 the Vir-
ginia company had been operating the line
of railway owned by the Kentucky com-
pany under a lease "which in no wise re-
lieves the lessor from liability for the torts
of the operating lessee," and that, on March
15th, 1002, when plaintiff's decedent "was
at or near a public crossing, ... a
place In the town of Fullerton where numer-
ons people were accustomed to be and
travel," as the defendants well knew, with-
out fault on his part, and while in plain
view of the agents and eervanta of the de-
fendants, he was "negligently and wanton-
ly" run down and killed by a train operated
by the defendant, the Virginia company.
The negligence alleged is exceesive speed of
the train, — 50 miles an hour, — failure to
keep proper lookout for travelers at such a
^ place, and failure to give adequate signala
goT warnings of the approaching train.
" 'In the case cited by the court in ft«
opinion (Davis v. Chesapeake t 0. R. Co.
•upra), the petition all^^ that "the
Intestate was run over and killed at or near
a private crossing over the railroad track,
between her garden and her home;" that it
was "not far" from public crossings to the
eoet and west of her; and that the train was
negligently running at CO miles an hour,
without any appropriate lookout being kept
or signals given.
In considering this petition the court of
appeals, laying that it must be taken most
strongly against the pleader, decided that
the allegation that the deceased was killed
"at or near a private crossing" must be
construed as meaning that she wot killed
at a place on the track other than at the
crOBsing, and that it Is only at a pablia
crossing that reckless ipeed or any failure
to give aignals amounts to negligence.
The differences between this decided casa
and the case at bar ara obvious and vital, — «
private crossing in the one, a public croaa-
ing in the other, and "a place where nu-
merous people were accustomed to be and
travel" in the one eaao, and silence as to the
extant of uae in the other. We shall aea
the court of appeals laying sharp hold upon
both of these diatinctions when determining
what the state law applicable to such
cases ia.
Whatever doubt there may have been be-
fore, as to what duty the operating rail<
road company owed to the plaintiff's de-
cedent, woe settled by the decision in Ulinoii
C. R. Co. V. Murphy, 123 Ky. 787, H LJUA.
(K.8.) 352, S7 8. W. 720, is which the
court of appeals, in a comprehensive survey
of its prior decialcma, formulates in two
"principles" or rules, the duty of the oper-
ating railroad company to pereons crosaing
or walking along ite tracks. The flrat «t
these is that in sparsely-settled districts, or
where few people croea or walk along rail-
road tracks, auch users are to be regarded^
aa trespassers, to whom no duty ia owedl
by*the company, except to keep from injni»
ing them if it reasonably can, after their
presence and peril ahall have been dia>
The second principle, and it is the oaa
applicable to the ease stated In the amended
petition, la, that in mora populous cam-
munities, or where many people are a^
customed to crosa or otherwise uaa railroad
tracks, the duty of the company ia
"to operate the train with the fact of the
trespassers' presence In mind, — that Is, at
a speed which has the train under control,
and keeping such a lookout aa will enable
the operatives to give timely warnings of ita
approach, aa well as to stop it in ease of
necessity before injury has been infiletad
upon the treepasaar." Legislation baa not
regulated the apeed of trains In auch
(smaller) oommimitiea, and until i% dosa
,A_^OOglC
IBIO.
IfoAIUSTEE T. CHESAPEAKE & O, B. Ca
vn
«Mh cue iDiiit t«Bt upon iti own facts.
"Whether the speed is so great as to amount
to Qegligence will be a fact to be determiDed
by the jury, for tha circumstances «iU
necessarilj vary, according to the popu-
ktlon, the use of the track for pasaags by
foot or rehicle travelers, the obstraation to
tb« view, and so forth. . . .
"If the railroad company knows that the
pnblio habitually uses its tracks au4 right of
way in a populous community aa a toot pass
way, to that it knows that at any moment
people may be expected to be found thereon,
■ueh knowledge is treated as equivalent to
•eeing them there, and their presence must
be taken into conaideration by the train
operatives in the movement of thslr trains."
Six years later, in Chesapeake & O. R. Co.
V. Wamock, 160 Ey. 74, lEO B. W. 2B, and,
oddly enough. In a case growing out of an
ftocident which occurred in this same village
of FuUerton, the court of appeals again re-
views ita decisions, approves the statement
of the law in the Murphy Case, aa we have
quot«d It, and concludes with tha statement
th.t,
5 "Although Pullerton was not an incorpo-
• rated town,*it wai a town in fact; and the
place where the accident occurred [described
aa 60 feet from any public crossing] waa
■uch a locality that the presence of persona
on the track might be antiefpated at any
Again recurring to the subject, the same
court in Corder v. Cincinnati, N. 0. ft T. P.
R. Co. IGS Ky. 636, 169 8. W. 1144, restates
the rule, saying:
"It b not so much whether tiia accident
occurs in the city or village as it is that
there waa evidence of auch long and con-
tinued use of the footpath by a large num-
ber of people as to impoae upon the
railroad the duty of giving warning of the
approach of ite trains to this point. . . .
It ia the nature and use of the oroasing by
the public that is to determine the applica-
bility of the rule which requires the lodt-
out"
And yet again, in Willis t. Louisville k S.
R. Co. 184 Ky. 124, ITS S. W. IS, the same
conrt concludes another diacuasion of ita de-
daiona with the approval of the Wunock
and Corder Caaes, and adds;
"Running through all these opinions will
be found the thought that it is the habitual
use of the track by large numbers of persona,
ikther than the location of the track, that
ereatea the distinction between trespassers
and licensees."
Watson v. Chesapeake & O. R. Co. 170 i
Ky. SS4, ]SS S. W. SGS, the last decision
dealing with this subject, plainly la not In- '
totded to modify the rule wa hare thus seen |
ao long eatabUahed.
While these decisiona of the conrt of ap-
peals of Kentuclcy leave aamething to be de-
sired in the deQnitlon of the distinction be-
tween "trespassers" and "licensees," there
can lie no doubt tliat, regardless of the terms
of designation used, the reault of them is
that the allegations of the amended peti-
tion In the caae under conaideration, if aup-
ported liy appropriate testimony, would r»g
quire that the caae be sent to a jury under a^
proper charge ot'the court, and that it was*
error for the trial court to hold tiiat they
did not state a cause of action aa against
the lessee (operating) company.
There remains only the question whether
the amended petition states a cause of action
i^^inst the lessor, the Kentucky company,
and it is very clear that the decisions of the
' ighest court of that state answer thia
question in the affirmative.
In McCabe V. Mayaviile ft B. 8. R. Co.
(thia same Kentucky corporation] 112 Ky.
S61, ee S. W. 1064, the court of appeals of
Kentucky expressly decides that, under the
lease of its line to the Virginia company,
which was in effect when the action com-
plained of occurred, the lessor company, not-
withatanding the lease, continued liable to
the public for the torts of its lessee in oper-
ating the leased railroad, holding that where
both lesaor and leeaee were joined aa de-
fendants in a suit for causing the wrongful
death of a man killed by an engine operated
by tha leasee, the liability waa joint, and
that a removal petition, not to be dis-
tinguished in substance and scarcely in form
from the one filed by the Virginia company
in this caae, did not atate a caae of a separa-
ble controversy, justifying removal to the
United States court. To this same effect,
construing the Constitution and statutes of
Kentucky, aa applied to leaaes by other
corporations, are Illinois C. R. Co. v. Shee-
gog, 126 Ky. 262, 103 S. W. 323, affirmed in
216 U. S. 309, 64 L. ed. 20S, 30 Sup. Ct. Rep.
101, and Louisville Bridge Co. v. Bieber, 157
Ky. 161, 162 B. W. 804. The plaintiff's do.
cedent was not an employee of the Virginia
company, and the rule of the cases cited Is
not modified by Swice v. Maysville ft B. S.
R. Co. 118 Ky. 263, 75 S. W. 278.
Since the amended petition states a joint
use of action against the Kentucky com-
pany and the Virginia conipany, the claim
that there is a separable controversy In the
cose, justifying removal by the latter coni-H
pany, muat fall, and since no facts are al-Jg
leged in aupport of the*eharga that the*
joinder of the two companies is fraudulent,
except that it was made for the purpose of
preventing removal to the Federal court,
this claimed reason for removal muat alao
tail (Illinois C. R. Co. v. Sheegog, supra,
and Chesapeake ft 0. R. Co. v. Cockrell, 23*
A^^OO^IC
£78
St gtrPKEME COUKT SEPOBTEa.
U. 8. 14(1, in, 5S L. «d. B44, H7, M Sup.
Ct Kep. 278], and thwefore th« deeieton of
ths Diatriet Court is revsrud and the eaM
mnrt be remanded to the rtata court.
The petition for removal of tliia ea«e waa
filed on the 21*t day of July, 1&02, and now,
flfteen years after, in directing that the.
«aae b« remaaded, we cannot fail to notice
the many seemingly needtesB delays to whidi
H has been subjected, and we direct that
appropriate action be taitvt to return it as
promptly as possible to the state court.
Reversed.
(HI U. S. m)
ST. JOSEPH ft GRAND ISLAND RAIL-
WAY COMPANY, Plff. in Err,
RALPH W. MOORE.
RncoTAL or OaTrsEs «=>8— Divxbbe Citi-
zkubbip^-Soti Ajubino qndzb FEDEsai.
Bhploszbb' LuBiurrr Act.
1. The removal from a state court to a
Federal court, upon the sole ground of di-
rsrsity of citizenship, of an action brought
under the Federal Employers' Liability Act
of April 22, ]9Q8 (3B Stat, at L. SB, chap.
140, Comp. Stat. 1913, S S6S7), as amended
by the Act of April 6, 1910 (36 Stat at L.
291, chap. 143, Comp. Stat. 1913, S 8602),
Is prohibited by the provision of such amnn-
datory act that no action brought in any
state court of competent jurisdiction shall
be removed to any court of the United
Statea
[BM. Not*.— Far oUier cssas, ■•• Semmral at
Oansts, Cent Dig. || 4. 1.]
UmsB AHD Szbtaut «=3ll0— SaiCTT Af~
ruAHOES— HaNDBouw os Gaaa laons-'
BXjinvaixHTa.
2. like requirement of the Safety Ap-
tllance Act of March 2, 1893 (27 Stat, at
^ 631, chap. 196, Comp. Stat. 1913, S 8608].
I 4, made applicable to locomotive tenders
by the Act of March 2, 1903 (32 Stat, at
L. 943. chap. 970, Comp. Stat. 1913, S 8613),
that "It shall be unlawful for any railroed
company to use any car in interstate com-
merce that is not provided with secure grab'
irons or bandholda in the ends and sides
<rf each car for greater security to the men
id coupling and uncoupling cars," is not
satisfied by equivalents or by anything leas
than literal complianea wi^ what It pre-
[Bd. Note.— F^ other cues. ■«• Hutw and
Serrsnt, Csat. Dla. II tU. 114^.1
Appbai. and Ebbob «» 1033(0)— Be tebst-
SIX Bbbob — iNeiBucnoN Too FaToa-
ABLK TO CoitPi^mitta Pabit.
8. The giving of an Instruction at the
request of a railway eompany that any iron
rod or iron device securely fastened upon
Uie end of a locomotive tender to which em- 1
ployeee could catch hold while in the per-
formance of their duties in coupling or un.
coupling cars was a handhold or grab iron
within the meaning of the Safety Appliance
Acta of March 2, I89S (27 Stat, at L. G31,.
ehap. 196. Comp. Stat 1918. f 8008), | 4,
and March 2, 1903 (S2 Stat at L. M8,
eh^. 97e, Comp. BUt 1B18, f 8013), Md
that therefore if a vertical iron handhold
and iron rod — pin lifting or uncoupling
lever — extending across the tender just
above the coupler were so designed and con*
■tructed as to permit employees engaged in
coupling or nncDUpliug cars to grasp them
readily for their oetter security the rail-
way company was not guilty of negligmce
In failing to provide necessary and proper
handholds or grab irons, and an injured em-
ployee cannot recover for any injury sus-
tained from lack of them upon the tender,—
is error in the railway company's favor,
being more favorable to it than it deserved
under the law. even as modified by the trial
court's qualification that the jury must
find that such attachments or devices fur-
nish reasonable security to the company's
employees in coupling and uncoupling the
tender and care.
[Ed. Nat*.- For otbtr ciuei, s«« Appeal and
Brror, Cent Die I MU-l
[No. 673.]
a judgment
which afllrmed a judgment of the Circuit
Court of Buchanan County, in that state,
in favor of plaintiff in an action under the
Federal Employers' Liability Act. Affirmed.
See same caaa below, 268 Mo. 81, 186 S.
W. 1036.
The facts ara statad In the opinion.
Mr. Sobsrt A. Brown for plaintiS ta
Mr. John O. Parklnaon tvr defendant in
* Mr. Justtee OlaAe dalivered the opinioB*
of the conrt:
Moore, the defendant in error, was ill
the employ of the plaintiff In error as a
hrakemau, and was desperately injured on
June 9, 1910. His claim is that, at the
moment of the accident, he was engaged in
adjusting a defective antomatio coupler on
the rear end of the tender of an engine,
which was started unexpectedly, causing
him to be thrown from his feet by tha
•team hose equipment, which hung down to
within a few Inches of the surface of thtt
track, and that, in part because the tender
was not equipped with grab irons or hand-
holds, as required by the Federal law, h»
fell helpless under the wheels and lost botli
of his hands.
He recovered a judgment in the trial
court, which was affirmed by the suprema
court of Missouri, and the case is here on
He applicability of the Employers' Lla<.
bility Act to the ease was admitted from
M topic * KBT-NUMBER In all Kir-NumtMred Dlfwti A IndCitS
.gic
1S16.
ST. JOSEPH & O. L R. CO. T. UOO&E.
S7»
the beginniDg; but nerertheleea a petition
wu promptly filed for t^e removail of the
cue to Uie United StatM circuit court on
the ground of divenlf; of eitUenahip. This
petition wfts denied, and the cl&im tlint tbia
denial ctniBtitutee rerersible error ii
argued here, albeit Mmewha-t faintly. The
claim IB wholly without merit, as is appar-
ent from the plain re&ding of tlie Federal
Employers' Liability Act, and aa la deter-
mined in Ransaa City . Eloutbem R. Co.. t.
Leslie, 238 U. S. DBS, 6S L. ed. 1478. 35
6up. Ct Sep. 844, and in Southern B. Co.
T. Uojrd, 236 U. 8. 496, 60 L. ad. 402, 36
Bnp. Ct. Rep. 210.
It ia claimed, with mndi apparent con-
fidence, that no substantial evidence ap-
pears in the record to support tba judg-
ment of the state courts, and that, under
the authority of Soutbem P. Co. v. Pool,
"leo U. 8. 438, 40 L. ed. 4S6, 10 Sup. Ct.
• Rep. 338, the judgment* should be reversed.
An inspection of the record satisfles us
that substantial testimony was introduced
in support of the claimed negligence of tbe
rkilroad company, and that, applying the
vsnal rule, the result cannot be disturbed
<ia this claim.
But chief emphasis, perhapa. Is laid
tbe argument upon the claim that tbe trial
court erred in refusing to say to the jury,
u a matter of law, that "any iron rod or
Iron device securely fastened upon the end
of defendant's tender to which employees
could conveniently catch hold while in the
performance of their duties in coupling or
uncoupling cars was a handhold or grab
iron within the meaning of the law," and
that, therefore, if the vertical iron hand-
hold and iron rod — pin lifting or uncoupling
lever — extending across tbe tender just
above the coupler, were ao designed and
constructed as to permit employees engaged
in coupling or uncoupling cars to readily
(Tup them for their bettor security while
in the performance of such worlc, th« de-
fendant was not guilty of negligence in fail-
ing to provide necessary and primer hand-
holds or grab irons, and the plaintiff
cannot recover for any Injury austs,iiied
from lack of them on the angina tender.
The trial court gave this request as the
law of the case, but provided, only, the jury
ahonld find "that said attachments or de-
vices furnished reasonable security to the
employees of defendant In coupling and un-
coupling said tender and cars." The rail-
road company excepted to this modification
of its request to charge, and argues now
that to so modify it wu error.
W* quita agree with the supreme court
of Missouri In its conclusion that tbe giving
of the company's request, even a* modified
hf the trial court, was enxv in its tvot.
being much mora than tt deaerrad under
SecUon i at the Safety Appliance Statute
provides: "It shall be unlawful for any
railroad company to use any car in inter-
state commerce that is not provided withrt
'lecure grab irons or handholds in the ends*
and sides of each car for greater security
to tha men in ooupling and uncoupling
cars." 8T Stat, at L. 531, chap. 190, Comp.
SUt. 1013, f 8008. This statuta waa, hi
terms, made applicable to tenders of engines
by the amendment of 1B03 (32 Stat, at L.
043, chap. S70, Comp. Stat. 1013, g 8SI3).
The request preferred is an obvious at-
tempt to secure the application of the doo-
triua of equivalents to the Safety Applianea
Act, and to persuade tbe court to say that
it is not necessary for carriers to comply
with tbe law If only tbej will furnish soma
other appliance which one jury may s*j la
"just as good" but which another jury maj
say Is not.
It is much too late for such a claim to be
seriously entertained. In the case of St.
Louis, 1. M. & 8. R. Co. T. Taylor, 210 H.
8. 281, 02 U ad. 1001, 28 Sup. Ct. Rep. 016,
81 Am. Neg. Rep. 464, often approved by
this court, It waa settled, ones for all, that
Congress, not aatfsfied with the oommou-
law duty and Its resulting liability, in tha
Safety Appliance Act of Uaroh 2, 13S3 (27
Stat, at L. 631, chap. 1B6, Comp. Stat. 1813,
3 8609), prescribed and defined certain defi-
nite standards to which Interstate carrier!
must oontomi, and of the required auto-
matic couplers this court said: Congress
bos enacted that "no cars, either loaded or
unloaded, shall be used in Interstate com-
merce which do not comply with the stand-
ard." Thers Is no escape from tbe mean-
ing of these words. Explanation cannot
clarify them and ought not to be employed
to confuse them or to lessen their aignlfi-
The exercise of care, even tbe greatest, ia
siqiplying and repairing these applianoaa,
will not excuse defects in them,— the duty
and liability are absolute. St. Louis, I. U.
ft S. R. Co. T. Taylor, supra; Great North-
am R. Co. T. OtoB, 239 U. S. 349, 361, 60
L. ed. 322, 323, 36 Sup. Ct Rep. 124. If
eqnivalenta were allowed the statute wotdd
be lost in exceptions and its humane pur-
pose defeated in the nneertaintj' of lltlgi^
He request to charge on which the plain-S
tiff In eiTor'relles In its terms Implies the*
absence of the required handholds or grab
Irons, and on inspection of the photograph
of the tender confirms the inference. Tha
vertical handhold referred to in the request
was at the comer of tha tender, and could
be useful only to • mail walking or ran-
,A_^OOglC
280
87 SUPREME COUBT EEPORTEH.
Bing alongside the track to operate the un-
coupling lavar, or, as it ia aometimes called,
the piD-Iitting later. It could not be of
ralue when the automatic coupler irtu not
In working condition, or to a man in tho
position in which Moore waa when injured.
Thia grot iron requirement flrat appcara
Id the Act of 1S03, and the amendment ten
year* later (March 2d, 1B03), 32 SUt. at
li. 943, chap. 676, Comp. Stat. 1S13, S Bfll3,
making the requirement In tcrma applicable
to tendera, did not change it Wbatever
may be said of 1893, there can be no doubt
that In 1003 automatic couplers, and there-
fore uncoupling or pin-lifting Icvera, were
in common, if not general, use, on the ten-
dera of engines, and If Congresa had in-
tended them to be accepted aa a Bubatitut«
for handhold* or grab irons, we mnat aa-
aume that the amendment of 1003 would
have to provided. Tba atatutA requirt
both. If practical conflrmation of thi
conclusion were desired, it ia to be found
In the fact that, in tha order of the Inter-
atate Commerce Commiaaion ataudardizing
aafet; appliances, under the Act ot CoU'
greaa of April 14, 1010 (36 Stat, at L. Z08,
chap. leO. Comp. Stat. 1013, % 8617], two
rear end handholda are required on loo
Uvea, "one near each aide on rear eni
tender on the foot of the end till."
It ia not admisaible to allow such an
Important atatutorj requirement to be
aatisSed by equivalents or hj anything less
than literal compliance with what it pre-
acribes. The charge aa given being more
favorable to the company than it deserved,
the judgment of tho Supreme Court of Mis-
•ouri ia affirmed.
(HI U. B. tUi
PHILADELPHIA & READING RAILWAY
COMPANY, PIff. ia Err,
T.
ROBERT J. McKIBBIN.
CoBPouTiona «=»668(1&) — Service on
FoBEioR CoKPOBATiON— What la Doina
Business in the State.
1, A foreign railway company wboBc rail-
way lies wholly outside the state of New
York, and which has no dock, or freight
or passenger ticket office, or any other of-
fice or agent or property therein, except
freight cars, which it sendj loaded into that
state over connecting carriers, and which
are, in courae of time, returned, receiving
only that portion of the through freight
payable for the haul over ite own line, and
on whose behalf no business is transacted
In New York except the isaua and sale of
the customary through coupon passenger
tickets by a local carrier at the Istter's
ferry terminal, where signs ore displayed
bearing the name of the foreign lailw^
company, its name also appearing In fbs
telephone directory opposite the number of
the local carrier's telephone line, — is not
doing business In the southern district of
New York in such a sensa that proceaa eon
be served upon it there^
[Sd. Note.— For other cue*. ■•« Corporation*,
Cent. Dig. 1 TC2C.
F'or Dtber definltloas, lae Words and PbroMS.
Pint and Secoad 6<rlM, Dolns BualoMS.]
COBPOBATioKs ^=668(15) — Sebvice oh
FOBEION CUKI'OltATlON—WlIAI IS DOINO-
Business in the State.
2. A foreign railway company cannot
be aald to be doing business within th*
state so as to be amenable to service of pro-
cess there because certain so-called "sub-
sidiary companies" are doing business ia
the aUte.
[Ed. Note.— For otliar cosea. ss* CorporsUona.
Cam. DIs. I !<2C.]
[No. 136.]
IN ERROR to the District Court of the
United States for the Southern District
of New York to review a Judgment in favor
of plaintiff In on action against a foreign
railway company. Reversed and remondpd,
with directions to dismiSB the salt for want
of jurisdiction.
The facts are stated in the opinion.
Mr.' Pierre M. Brown for plaintiff ia
Messrs. Joseph A. Shay and L. B. M»
Kolvey for defendant in error.
* Ur. Justice Brandela delivered the opin-*
Ion of the court i
A lordgn corporation is amenable to
proceaa to enforce a personal liability. In
the absence ot consent, only if it is doing
business within the state in such manner
and to such extent as to warrant the infer-
that It la present there. And even if
it la doing business within the state, the
process will be valid only if served upon
some authorized agent. St. Louis South*
western R. Co. t. Alexander, 227 O. S. 218,
S7 L. ed. 486, 488, 33 Sup. Ct. Rep.
246, Ann. Gas. 1B16B. 77. Whether the
corporation was doing business within tha
itate, and whether the person served was an
authorized agent, are questions vital to tha
jurisdiction of the court. A decision of tha
lower court on either question, if duly chal-
lenged. Is subject to review in this court;
and the review extends to findings of fact aa
well as to conclusiona of law. Hemdon-
Carter Co. v. James N. Norria ft Co. 224 D.
4Se, SB L. ed. eST, 32 Sup. Ct. Rep. 560;
Wetmore v. Rymer, IflO U. S. 116, 42 L. ed«
'"" 18 Sup. Ct. Rep. 293. The main quea-|
presented here Is whether*the plaintiff*
in error — defendant below — was doing buai>
in New York.
« tople * KBT-NUUBBR la oU K*7-Nambar»l Dli*sU A Indus*
L',aii..,-)-,.*^-.OOglC
1916.
PHILADELPHIA ft K. K. 00. v. MoEIBBIN,
2U
Tbe PbiUdelphU t Ra&dlng Railmj
Compan;, • PenuBflvanik corporation, oper-
ated A railroad in that state and in Nev
Jeney. McKibbin, a citizen and resident of
New Yorlc, nas a bralceman in one of its
New Oeraer freight jards. For iaji
•lutained tiiere, lie brou^t tliis action in
-tbe United States district court for tlie
•outhem district of New Yorlc. The eum-
nons was seired on defendant's preaident,
while he waa passing througih Netr York,
«ngag>ed exclusivel; on personal matters
«onnected nith tfie company's aftairs. The
defendant appeared specially in the eatue
for the sole purpose of moving to set aside
the service of tbe summons; and invoiced
the pioTisiODS of the Federal Constitution
guarantying due process of law. The motion
was denied "upon the sole ground that upon
the facts stated In the afSdavits said de-
fendant is doing bUBiness within the state
of New Yorit, so as to be subject to service of
process within said state." Under a right
reserved in the order, tbe objection to the
Jurisdiction was renewed in the answer, and
buisted upon at the trial before tbe Jury.
The motion to dismiss was again liecird upon
the affidavits originally preaented, and was
-denied. Eb:ceptions were duly taken. A
-verdict was rendered for the piaintifT; judg-
ment entered thereon; and the case brought
liere on writ oi error; the question of juris-
-dEction iMing certified in conformity to g 23S
of the JudicUl Code [36 Stat, at L. 11S7,
ehap. 231, Comp. Stat. I»I3, i IZlfi].
liie affidavits established the following
facts: No part of the Philadelphia &
Beading's railroad is situated within the
state of New Yorlc. It has no dock, or
freight or passenger ticket office or any
other office or any agent or property therein.
Like other railroads distant from New York,
it sends into tliat state, over connecting
carriers, loaded freight ears, shipped by
other pereons, which can are. In course of
• time, returned. The carriage within tliat
« state is performed wholly by sueh connect-
ing carriers, which receive that portion of
the entire compensation paid by the shipper
therefor; and the Pliiladelphia ft Reading
receives only that portion of the compen-
sation payable for the Ikaul over ita own line.
The Central Railroad of New Jersey is such
« connecting carrier, and has a ferry termi-
nal at the foot of West Z3d St., New York
City. It issues there the customary coupon
tickets over its own and connecting lines.
Including the Philsdelphia ft Reading and
the Baltimore ft Ohio. The whole ticket, in
•ach case, is issued by the Central Railroad
«f New Jersey; and each coupon so recites.
In these tickets there is a eeparata coupon
for the journey over each of the connecting
sallroads; and tbe coupon for the journey
over each such railroad bears also its
name. £ach coupon is declared there-
on to be "void if detached." Ths
Philadelphia ft Reading receives In nlti-
mate accounting between the carriers, that
portion of the fare which la paid for the
journey over ita own line. Passengers for
pointa on the Philadelphia ft Reading or on
the Baltimore ft Ohio, or beyond, may reach
these railroads over the Central Railroad
of New Jersey. At various places in and on
this ferry terminal are signs bearing the
name "Philadeiphia ft Reading," "P. ft R.,"
or "Reading,'' — and also like signs of tba
"Baltimore ft Ohio," or "B. ft 0." In th«
New York Telephone Directory there are in-
serted the words "Phila. 4 Reading By., ft
W. 23d St Chelsea 6650." These signs on
the terminal, this insertion in the telephone
direotory, and the Information given in re-
sponse to inquiries at the ticket office or over
the telephone, are all designed to facilitate
and encourage travel and for the convenience
of the public. Neither tlte Philadelphia ft
Reading nor tbe Baltimore ft Ohio has any
office or any employee at the terminal. Tbe
Philadelphia ft Reading did not direct the
insertion of ita name in the telephone lx>ok._,
Chelsea 6560 is the number of the trunks
line of the CentraI*Rai1road of New Jersey;*
and that company pays tbe whole expense of
the telephone service.
An affidavit filed on plaintiff's behalf,
states that the names of tlie Philadelphia ft
Reading Coal ft Iron Company and of the
Pbiladelphia ft Reading Trans. Line, Towing
Dept., appear in the telephone directory as
at 143 Lilierty street telephone number
6672 Cortlandt; and apon Information and
lielief alleges, that these are eulisJdlary com-
panies of the Philadelphia ft Reading, and
"tow the cars of said company from the
Jersey pointa to the city of New York."
The finding that the defendant was doing
business within the stata of New York Is
disproved by tbe facta thus established.
Ths defendant transacta no business there;
nor is any business transacted there on Ita
bebalf, except in the sale of coupon ticketa
Obviously the sale by a local carrier of
through tleketa does not involve a doing
of business within the stata by each of the
oonnecting carriers. If it did, nearly every
railroad company in the country would be
"doing business" in every stata. Even hiring
an office, the employmeit by a foreign rail-
road of a "district freight and passenger
agent ... to solicit and procure pas-
sengers and freight to be transported over
the defendant's line," and having under his
direction "several clerks and various travel-
ing passenger and freight agents," was held
not to conatituta "doing buainees within the
stata." Qreen t. Chicago, B. ft Q. B. Co.
A^iOOglC
S7 8UPBE1CE OOUBT REPOBTEE.
206 U. B. 630, Bl L. ed. 91S, 27 Sup. Ct Bep.
60S. Nor would tiie fact, if uUblidied hj
eompeUnt eridenee, that "BubBidiary cam'
pknle*" did bmineu within the stato, irar-
nnt *. finding that tha defendant did biui-
BSM there. Peterson t. Cliicago, R. I. ft P.
R. Co. 20S U. S. S64, 61 L. ed. BU, !T Sup.
Ct Rep. G13. A« the defendant did no
btuIneBB 1b New York, we need not eon-
aider Its oOier contention, that It could not
.be sued there on a eatue of action arising
gfai New Jersey, and in no way conneeted
• with the business alleged to ba*done In New
ToTlc On this proposition we ezprees no
opinion.
On behalf of the plaintiff It was alto
vrged that an arrangement between counsel
hj which serrlce of the summons had been
facilitated operated as a waiver of all ob-
jections to the jurisdiction of tiie court.
We And this contention to be unfounded.
The Judgment of the District Court Is rc-
Tersed and the cause remanded to that court
with directions to dUmlsa it for wont of
Jurisdiction.
Rerersed.
OoiTsnTunoNAi. Law «=aS12— Dm Pso-
CEBs OF liAy/SoBBTrrvTEo Sbbvice on
NONKEBIDENT — PBOCEEOINO QuABI IIT
Hbm — SATiayriBo Aljuonx Oot or
Bank Dkpobit.
The alimony obligations of a non-
resident husband sorTcd only by publication,
though inchoate at the commencement of
the divorce suit, may, conaiatently with tha
due process of law guaranteed by U. S.
Const. 14th Amend., be enforced out of his
bank deposit in a local bank, where, upon
the filing of the suit, the court entered a
preliminary order enjoining the bank from
paying out any part of the def>osit, such or-
der being as efTective a seizure for Uiis pur-
pose as the customary garnishment or tak-
ing by trustee process.
[Ed. Natl.— For othar easM, iM Coiutltutlo&al
I«w. CanL Dig. I ta.]
IN ERROR to tha Supreme Court of the
Btate of Ohio to review a judgment
which affirmed a judgment of the Court of
Appeals for Hamilton County, in that state,
affirming a judgment of tha Circuit Court
of that County In favor of defendant in an
action to recover tha amount of a bank de-
port. Affirmed.
Bee same oasa below, — Ohio St. — , 111
r. B. 1086.
He facts are stated In the opinion.
Mr. Guy W. HaUon for plaintiff In ar>
9 For olbar c
*Ur. Justice BrandAla delivered the opin->
ion of the court:
Mrs. Pennington obtained In a state oourt
of Ohio a decree of divorce which la sdml^
ted to be valid. In the same proceeding
she sought alimony; and In order to insure
its payment joined aa a defendant the
Fourth National Bank of Cincinnati, In
which her husband had a deposit aocount.
When the suit was filed the court entered
a preliminary order enjoining the bank
from paying out any part of the deposit.
Under later orders of the court the bank
made payments from it to the wife. Fin-
ally it was perpetually enjoined from mak-
ing any payment to the husband, and
ordered to pay the balance to the wil^
which It did. The husband then presented
to the bank a cheek for the full amount of
the deposit, asserting that the court's orders
deprived him of hie property without due
process of law. In violntion of the 14th
Amendment, and were void; since he was a
nonresident of Ohio, had not Iwen person-
ally served with process within the state,
hod not voluntarily appeared In the suit,
and had been served hy publication only,
all of which the bsnk knew. Payment of
the eheclc was refused. Thereupon Penning-
ton brought, in another state court of Ohio,
an independent action against the bank for
the amount. Judgment being rendered for
the bonk, he took the case by writ of er-
ror to the court of appeals tor Hamilton
county, and from there t« the supreme
court of Ohio. Both these courts afflrmedn
the judgment below. Then the case wasjj
•brought to this court for review. Penning-"
ton still claiming that his constitutional
rights hod been violated.
Hie 14th Amendment did not, in guar-
antying due process of law, abridge tha
Jurisdiction which a state possessed over
property within its borders, regardless of
the residence or presence of the owner.
That jnriadicU<Hi extends alike to tangible
and to intangible prt^erty. Indebtedness
due from a reoident to a nonresident — of
which bank deposits are an example — la
property within tha states Chicago, R. I.
& P. R. Co. V. Sturm, 174 U. 8. 710, 43 L.
ed. 1144, 19 Sup. Ct. Rep. 797. It is. In-
deed, the species of property which courts
of the aeveral states have most frequently
applied In satisfaction of ths obligations
'of absent debtors. Barria v. Balk, IM n.
■ ■(• ume topic * KBT-mjUBER la sll Ker-Nunibersd Digests * Ind*
?y
lOlS.
PEASE T. BATHBON-JONES ENOOfEBSmO Ca
S. 21S, «9 L. «d. 1023, 25 Sup. Ct Bep.
62S, 3 Ann. Caa. :o84. Substituted aervice
on a. nonresident bj publicatiOD tumisheB
no legal iMisii for a judgment in perMnam.
Pennoyer v. Neff, 96 U. 8. 714, 24 L. ed.
£Q5. But garniahmeiit oT foreign attach-
ment it a proceeding quaai in rem. Free-
man r. Alderaon. IIB U. S. 185, 187, 30 L.
•d. 372, 373, T Sup. Gt. Eep. 105. Tlie thini;
belonging to the absent defendant is leiMd
and Applied to the tatfafaetion of hie obli-
gation. The Federal Constitution preaenta
no obstacle to the full exercise of this pow-
It is asserted that these settled principles
of law cannot be applied to enforce the obli-
gation of an absent husband to pay alimony,
without Tiolating the constitutional guar-
anty of due process of law. The main
ground for the contention Is this: In ordi-
nary garnishment proceedinga the obligation
an forced is a debt existing at the com-
mencement of the action, ivhereas the obli-
gation to pay alimony arises only as a re-
sult of the suit. The distinction Is, in this
connection, without le^ significance^ He
power ol the state to proceed against the
property of an absent defendant is the
same whether the obligation sought to be
enforced is an admitted indebtedness or a
contested cleim. It is the same whether
tlia claim is liquidated or is unliquidated,
"like a claim for damages In contract or in
Ttort. * It Is lilcewLae immaterial that the
claim is, at the commencement of the suit.
Inchoate, to be perfected only by time or
the action of the court. The only essentials
to the exercise o{ the state's power are pres-
«DC« of the rea within its borders, its
asizure at the commencement of proceedings,
and the opportunity of the owner to t>e
heard. Where theaa essentials exist, a de-
eree for alimony against an absent defend-
ant will be valid under the same eircum*
stances and to th« same extent as if the
judgment were on a debt, — that is, It will
be valid not in personam, but as a charge
to be satisfied out of the property seized.
.Cases are cited in the margin. 1
The objection that thie proceeding waa
void, because there was no aelzura of tlie
res at the commencement of the suit, Is al-
so unfounded. The Injunction which issued
against the bank was as effective a seizure
as the customary garnishment or taking on
trustee process. Such equitable process It
frequently resorted to in order to reach
and apply property which cannot be at-
tached at law. Cases ar* pUed in the mar<
gin.*
(W V. 8. an
CLARE PEASE, Petitioner,
CLARK PEAS£ et aL, P^tlouera,
AND Ebbor «=»1207(4)— Coupli-
ANCE WITH Mandate— DuTciKNCT Ex-
KCDTION.
1. A decree entered pursuant to the
mandate of a Federal circuit court of ap-
peals in an action to foreclose a vendors
lien Is not void in so far as it orders a de-
fleiency execution to issue against the de-
fendant and the sureties on bis appeal bond,
where the wiginal decree, which the cir-
enit court of appeals affirmed, adjudged
that plaintiff "do have and recover" a cer-
tain Bum of money, estahlished a lien on
certain property, and ordered the sate thera-
of to satisfy the judgment if not paid in
a specified time, and the mandate from the
appeiut« court commanded that "such exe-
cution and further nroceedinga be had in
said cause as, according to right and jus-
tice and the laws of tha United 8tate«
ought to be had."
IBd. Not*.— For other cues, see Appeal and
Error, Cent. DIs- | MtS-l
AfPKALAND EBBOB «=>1207(2)— JUDOIfZHT
— subbbquknt pbockedhfas bclow —
Waivbb.
2. No objection to tha form of the d*-
erae in a suit to foreclose a vendor's lien,
baaed upon the recital therein that plain-
Uif "do have and recover" a certain sum
tit money, can be raised in the proceedings
had after such decree wb« afflrmed on ap-
1 Enforcement of allowance of alimony
from property of absent defendant, seized
at the commencement of the suit by at-
tachment or similar process. Hanscom t.
BaDscom, 6 Colo. App. B7, 39 Fao. 8S6;
Thurston v. Thurston, BB bllnn. 27B, 60 N.
W. 1017; Wood ». Price, 7B N. J. Eq. 1, 9,
10. 81 Atl. 1093. Bee Bailey v. Bailey, 127
N. C. 474, 37 S. E. 602 ; Twing v. CUeara,
09 Iowa, 326, 331, 13 N. W. 321. Cf. Bun-
nell r. Bunnell, 2B Fed. 214, 218.
The wife's inchoate right to alimony
makes her a creditor of the husband under
the statutes against fraudulent conveyances.
Uvermors v. Bont«ll^ 11 Gray, 217, 220,
71 Am. Dec 708; Thurehm v. Thurston, 68
Minn. 278, 69 N. W. 1017; Murray v. Mur-
nj, 116 Cal. 208, 274, 87 L.R.A. 626. 66
Am. St. Rep. 97, 47 Pac 37; Hinds «.
Hinds, SO Ala. 226. 227.
> An injunction issued against a resident
debtor of a nonreaident defendant is a suffi-
cient seizure of the defendant's property to
give jurisdiction. Bragg v. Oaynor, 86 Wia
468, 487, 21 L.R.A. ISl, S5 N. W. 919. See
Murray v. Murray, 115 Cal. 266, 270, 37
L.H.A. 626, 66 Am. St. Rep. 97, 47 Pac 37.
See Tyler v. Judges of Ct. ol Registration,
176 Mau. 71, 77, Gl L.E.A. 433, 66 N. B.
BIS.
le Uptc * KET-NUHBBB ti
U Ker-NoBbered DIseeta * Indsna
284
87 SUPREME COURT REPORTER.
Oct. Tebm,
peal, where this objection was not tak<n on
the appeal.
[Bid. Nota.— For ottMF eua. Me Appeal and
Brror, Cant. Dlc> I «>T.]
Abaibubnt and Rbvivai, e=33S — Dis-
60HJTI0M or GOBPORATIOn — Pehdutq
Suit.
3. The abatement of a suit pending
against a corporation on apjieal when auch
corporation was diaBolved waa prevented by
tlie proviaiona of Tex. Hev, Stat. 1911, art.
1206, that upon dissolution of a corpora-
tion the president and directors iball ba
trustees of the creditors and etoekholders,
with full power to settle its afiaire, and in
the name of auch corporation to collect all
debts, compromise controversies, and main-
tain or defend judicial proceedings, and that
the existence of every corporation may be
continued for three years after ita dissolu-
tion, for the purpose of enabling thoaa
charged with the duty to settle Its affairs.
[Ed. IJats.—For other cue*. ■« Abatamant
BQd RSTlTil. Cent. Dig. II IM-SM.]
Eotoppel «=38(2)— To Assert ABATEUsnT
— IKCOMB18TENT ACTS.
4. A dissolved corporation which takes
an appeal from a decree againat it and
SIves bond for its successful prosecution ia
ardly in a position to assert that it is non-
existent and incapable of maintaining and
defending pending auita.
[Sd. Not«.— For othar ouga, aa*
Cant, DIr II Ut. ira.]
JCRY «=3ia)— TSFRIHOEMENT Of HrOHl^
SUUHABX JUDOMEST ON APPEAL BOKD.
5. The cooatitutional right of trial by
jury preaents no obstacle to ths rendition
by a Federal district court, conformably to
the local law, of a aummary judgment
against the sureties on an appeal bond upon
the affirmance of thn decree i^ipealed from,
since a person, by becoming a surety, sub-
mits hiniseU to be governed by the fixed
rules which regulate the practice of the
~ r albtT ciHS, saa Jurj, Cent
RzvicwABLB— Dkhcienct judouent on
Appeai. BoiTD—BmcT OF Paxukkt.
6. The payment by a surety on the ap-
peal bond of a dissolved corporation, "as
trustee for himaelf and the other at^ck-
holdera," of the deficiency execution issued
on the bond upon the aflirmance of the de-
cree appealed from relieves an appellata
court from tbe necessity of determining
whether tbe trial court erred in entering
judgment against the sureties for tba de-
ficiency instead of judgment merely for tba
costs and any dajnagea to the plaintiff re-
sulting from the delay incident to the un-
successful appeaL
[Ed. Note.— For other caaei. see Appeal and
Error. Cent. DIa. H 913. >T1.1
[Noa. 360 and 419.]
DIa. I) 2M, ZM.]
Appeal and Ebrob «r'i237 - 3TTiniABT
Jddoubni on Af feal Boni>— Beubdx at
6. A Federal court of equity Is not
without jurisdiction on the ground of tbe
existence of an adequate remedy at law to
render a summary judgment, conformably
to the local law, against sureties on an ap-
peal bond, where the decree appealed from
has been affirmed.
[Ed. Note.— Far otber cases, aa* Appaal aod
Error, CenL Dig. t! 4718-4784.]
Appeal and Ekbob fl=>12S7— Liabilitt
"■l,**"^"*^ boni>— summabt judqub.vt
—Waives.
7. Ths jurisdiction or power of a Fed-
eral district court to render summary
judgment against the sureties on an appeal
bond upon an affirmance of the decree ap-
pealed from, and without notice to tJie sure-
ties, could not be questioned after the par-
ties had, by motions subsequently filed,
invoked a decision of the court upon tba
question ot the sureties' liability on tbe
evidence presented by them, ao relevant fact !
being in dispute.
(Ed. Note.-For other caiat, aa* Appeal anil|«"t«ed its"decreo o
TWO WRITS of Certiorari to the United
States Circuit Court ot Appeals for
he Fifth Circuit to review decrees which
affirmed decrees of the District Court for
tbe Southern District of Texas, enforcing
the liability of auretiei on an appeal bond.
Affirmed.
See same case below, 142 C. C. A. 665, 228
Fed. 273.
The tacts are atated in the opinion.
Messrs. Perr; J. Ijevria and Frank &,
Booth for petitionera.
Mr. Carlos Bee for respondent; ^
Mr, Justice Brandels delivered the opin-*
ion of the court:
Pea«e and Heye were sureties on a au>
persedeaa bond given on appeal to the Unit-
ed States circuit oourt of appeals in a suit
to foreclose a vendor's lien. Tbe district
for the aouthem district of Texas
itered a decree against tbe People's
Light Company, declaring that Rathbun-
Jonea Engineering Company "do have and
recover" 88,804.90, with intereat; estab-
lishing a lien on certain personal property;
and directing that it be sold to satisfy ths
judgment, if tbe same be not paid within
sixty days. The appellate court affirmed
the decree. 133 C. C. A. 623, 218 Fed. 107.
The mandate directed that the defendant
and the sureties "pay the coata in this
court, for which execution may be issued
out of the district court," and ''commanded
that such execution and further proceed-
ings be had in said cause as, according to
right and justice, and tbe laws of the Unit-
ed States, ought to ba had." Thereupon
the district court, apparently without notice
IibpIti^ ki>on given qiecifteally to aureties,^
Error. Cent. Dig. ti 4J«-4784.]
ares ordered "that said d
=For olh«r cbmi *m Has topic * ICET-NUM BER In all Kaj-Kumberad DIaatU A ladeiaa *---
"tgic
PKASB T. BATHBUH-J(»7ES ENQINEERIKQ CO.
tha Judgment of Utii oonrt;" that a lala be
made, ■■ herein provided, 'Ho taAiefy uid
judgment,'' and that "in tlie event lald
property doe* not wll for inlGcient amount
to aatiifj taid judgment, interiat and coata,
the elerk of thla oonrt lune azecution
BgKinat the defendant and againat the aure-
ticB on the appeal bond, . . . for any
deRcieDcj that may remain."
The aale wu bad. Pease, being tha hlgh-
eat bidder, purchaBed all tha property for
A ram wbich, when applied upon the judg-
ment, left a large defidenej. Immediately
after the aale, and before execution iaaued,
Peaie and Heye'a adminiatratriz (be hav-
ing died pending the appeal) filed, in the
diatriet court, a motion that execution be
atayed and that ao much of the "decree on
mandate" aa dirscted its issue be aet aaide.
On the aame day a similar motion waa
Sled by the trustee in liquidation of the
Feople'a Light Company (it having beai
diaaolved pending the appeal). Botb mo-
ttona were preaented by the counael vho
had theretofore acted for the defendant,
ne authority of tha court to iasue the exe-
cution was attacked on aeveral grounds.
Both motiona alleged that the original de-
cree contained no provision fM aui^ execu-
tion, and that it could not be enlarged on
return of t^e mandate, because the term
had expired at which It vaa entered. They
alleged that the order for execution vaa il-
legal because the People'a Llg^t Company
bad been dissolved and Heye had died, pend-
ing tha appeal. They aaaerted that tha
"decree on mandate," ao far aa it directed
the iseuanc* of tha execution, waa "wrong-
ful and illegal," because "it was entered
by the court without pleading, without no-
tice, and without hearing, against, to, or of
tbeae petitioners," and "deprived them of
their property without due proceaa of law."
The motion on behalf of tha auretiea al-
^leged alao that they bad been deprived of
|j their constitutional right to "trial by jury
• In actionB at conunon*law." The prayers
for relief were rested, alao, on atill broader
grounda, wbich involved directly the whole
merita of the controveiay. It was allied
that the "bond did not seoure, . , . tha
payment of tha amount of said judgment
nr any deSciency that might remain after
the application of the proceed* of the sale
of aaid property, but operated only a* in-
demnity against damages and costs by rea-
son of said appeal," — and that the coata on
said appeal had been paid. The motiona,
which were fully heard tqion evidence In-
troduced by the petitioners, were denied.
in appeal was taken by all the petitioners
from Uiia denial; and by Feaae alone from
the "decree on mandate." Both the decreea
wara afflrmed on appeal; and a reheajing
waa refused. 142 a C. A. SSS, 228 Fed.
ETS. Thereupon petitions to thi* court for
certiorari to tha circuit court of appeals
were filed and granted.
After leaua of the execution, Peaaa In-
■tituted atill another proceeding, — a suit
to restrain Its enforcement. But when the
injunction was denied by the district court,
the marshal made levy, and Pease, "aa
trustee for himself and the other stodcbold-
era of the People's Light Company," paid
to the clerk of court the balance due on tb*
judgment. An appeal Irom the denial of
the Injunction waa dismissed by the circuit
court of appeals; but review ol that de-
cree is not sought here.
The petitioners still contend, on varioua
grounds, that the proceedings below are
void for lack of due process of law, or
should be set awde for error:
FInt. It is contended that the "decree
on mandate" was void so far aa it ordered
execution to iaaue for any defloiency; be-
cause that direction was not contained in
the original decree or in the mandate ol
the circuit court of appeals. We are re-
ferred to cases holding that the lower court
must enforce the decree as affirmed without
substantial enlargement or alteration. But^
the original decree ordered that the plain-Jj
tiff "do have and recover" 10,804.90. ' This*
is tha customary language used in personal
judgment* which are, without further dlreo-
tion, enforceable by general execution. If
the defendant desired to insist that, because
the suit was a foreclosure proceeding, the
decree In this form waa not proper,
the objection should have been taken on tbe
first appeal; and, not having been so taken,
must be considered as waived. The "de-
cree on mandate" obeyed the command of
the mandate "that such execution and
further proceedings be had in said cause
as, according to right and justice, and tha
laws of the United States, ought to be had."
The amount of the deficiency was fixed by
tha tale; tha insertion of the amount in
the execution waa hut a clerical a^t.
Second. It is contended that all auita
pending agaiast the People'a Light Com-
pany abated upon it* diasolution. A* we
read the Texas sUtuta {Bar. Stat. 1911,
art. 120B], aueh a ooDsequence la carefully
avoided. It la there provided that upon
dissolution the president and directors shall
be tntiteee of the creditors and stockholders
of the corporation, "with full power to aet-
tla it* affairs," and with power "in the name
of such corporation ... to collect all
debts, compromise controversies, maintain
or defend judicial proceedinga." This gen-
eral language makes no distinction tietiveett
pending and anbaequent "judicial proceed-
Ingi," which tha tiusteea are empowered
,A_.OOglC
ST SUPREME COUBT KSPORTEB.
Ooi. Tnic,
to maintain uid defend In the oorporatlon'a
name; and there seems no resaon why euch
a distinction sbould be read into the statute.
Ilere is bIko the farther proviaioa in the
s^ticle that "the existence of every cor-
poration may be continued for three years
after ita dissolution from whatever cause,
for the purpose of enabling those charged
with the duty to settle upon its affairs."
The People's Light Company, which takea
this appeal and gives bond for its success-
ful proaecution, is hardly in a portion to
assert that it is nonexistent and incapable
Sot maintainiag and defending pending suits.
? * Third. It is contended that the district
court had no power under the Constitution
to render a summary judgment against the
sureties upon affirmance of the decree ap-
pealed from, and that resort should have
been bad to an action at law. The method
pursued has been introduced by statute in-
to the practice of many states, including
Texas. Kev. Civ. Stat. art. 1627. See cases
In the margin.l Pursuant to the require-
ments of the Conformity Act (Rev. Stat.
{ 914), this practice Is followed by the Fed-
ersl courts in actions at law. Hlriart v.
Ballon, 9 Pet. 156, 9 L. ed. SS; Gordon v.
Third Nat Bank, 6 C. C. A. 125, 13 U. S.
App. 554, &a Fed. 790; Egan v. Chicago O.
W. R. Co. 163 Fed. 344. The constitutional
right of trial by jury presents no obstacle
to this method of proceeding unce by be-
coming a surety the party submits himself
"to be governed by the fixed rules which
regulste the practice of the court." Hiri-
art V. Ballon, 9 Pet. ISS, 107, 9 L. ed. S6,
89. Althou^ the adoption of state pro-
cedure is not obligatory upon the Federal
oonrts when dtUng la equity, tiuiy inn
frequently rendered aummary judfrncBt
against sureties on appeal bonds. Ees eaaesa
in the margin.' Some of the district courta,J|
by 'formal rule of court require the bond*
to contain an express agreement that the
court may, upon notice to the sureties, pro-
ceed summarily against them in the origi-
nal action or suit. See Rule 91, Ariz. Dist.
Court Rules, adopted March 6, 1912; Ruls
90, Wash. Dist. Court Rules, 1905. But
this is not a g»ieral provision; nor is it
a necessary one. For, as this court has
said, sureties "become quasi parties to the
proceedings, and subject themeelves to the
jurisdiction of the court, so that summary
judgment may be rendered on their bcrnds."
Babbitt T. Finn (Babbitt v. Shields) 101
U. S. 7, IS, 26 L. ed. 620, 822. The objec-
tion that a court of equity has no jurisdio-
tiou because there is an adequate remedy
at law on the bond is not well taken. A
court of equity, having jurisdiction of the
principal case, will completely dispose of
its incidents and put an end to further liti-
gation. Applying this principle, equity
courts, upon the dissolution of an injun<y
tion, commonly render a summary decree
on iojunction bonds. See eases cited in tha
margin.*
Fourth. It ts contended that noUce was
not given to the surety of the motion for
summary judgment It is a proper and
usual practice to give such notice; but it
may be questioned whether notice is always
essential. See Union Surety Co. v. Ameri-
can Fruit Product Co. 238 U. S. 140, G9 L.
ed. 123S, 35 Sup. Ct Rep. 828; Johnson v.
Chicago & P. Elevator Co. IIB U. S. 388,
I Summat; judgment was entered on ap-
peal bonds in the following cases: White
V. Prigmore, 29 Ark. 208; Meredith v. Santa
Clara Min. Asso. 60 Cal. 617; Johnson v.
Chicago ft P. Elevator Co. 119 V. S. 388,
30 L- ed. 447, 7 Sup. Ct. Kep. 254 (111.);
Jewett V. Shoemaker, 124 Iowa, 581, 100
N. W. 531; Greer v. McCarter. 6 Kan. 17;
Holmes v. The Bell Air, 5 La. Ann. G23;
Chappee v. Thomas, 5 Mich. 53 ; Davidson v.
Fsrrell, 8 Minn. 258, Gil. 225; Beall v. New
Mexico, IS Wall. 636, 21 L. ed. 292 (N. M.) ;
Clerk's Office v. HufTsUller, 67 N. C. 449;
Charman v. MoLana, 1 Or. 339; Whiteside
V. Hickman, 2 Yerg. 3G8; Allen v, Catlln,
9 Wash. 603, 38 Pac 79.
« Cases where equity courts ^ve summary
judfrnient against the securities on appeal
lionds: Woodfforth v. North Western Mut
L. Ins. Co. 185 U. S. 364, 46 L. ed. 946, 22
Pup. Ct Bep. 676; Smith v. Gaines, 93 U.
S. 341, 23 L. ed. 901; Richards v. Harrison,
218 Fed. 134 (D. C. 8. D. Iowa); Fidelity
A D. Co. V. Expanded Metal Co. 106 C. C. A.
114. 183 Fed. 568 (3d C. C. A.}, affirming
177 Fed. 604; Perry v. Taooma Mill Co.
81 a C. i 333, 152 Fed. 116 (9th C. G.
ing Ca V. HanlCT, 69 C. C. A. 87, 136 I™
99 (9th C. C. A.) ; Brown v. North Western
Mut L. Ins. Co. 6G C. C. A. 654, 119 Fed.
14B (8th C. C. A.).
> Cases where it was held that eoarts vt
equity might render summary judgment on
injunction bonds; Russell v. Farley, 105
U. 8. 433, 446, 26 L. ed. 1060, 1064; Lea
T. Deakin, 11 Biss. 40, 13 Fed. C14 (G. G.
N. D. 111.) ; Lehman r. McQuown, 31 Fed.
138 (C. C. Colo.) ; Cooeaw Min. Co. v.
Farmers' Min. Co. 61 Fed. 107 (C. C. S.
C.) ; Tyler Min. Co. v. Lut Chance Min. Co.
32 C. C. A. 498, Gl U. 8. App. 193, 90 Fed.
IS, 19 Mor. Min. Rep. 625 |9th C. C. A.) ;
Cimiotti Unhairing Co. v. American F\ir
Ret. Co. 158 Fed- 171 (C. C. N. J.). A few
of the districts have a rule of court provid-
ing that damages upon dissolution of an
injunction "may be assessed in the same
proceeding, either by the court or liy refer*
ence to a master and judgment entered In
the same action against the sureties on ths
bond." See Ark. West D. Rule 16, as
amended to Feb. 27, 1908; Ark. East. D.
Rule 14, as amended to (M. 1, 1915.
A^^OOglC
iftig.
SWIFT ft CO. T. HOCKma VALLEY K. 00.
30 L. cd. 44T, 7 I
7 'Furthermore, ttt ^^Mt two objeetioni, if
orlginallj well taken, were waived or cured
itj the inbaequeut proceedlnga. Tor the mo-
tlona filed later invoked a deei^on bj the
eonrt upon the question of the enretiea'
liablUtf on the evidence presented bj Ukem;
and no relevant fact wae In dispute. There
waa no issue to submit to a jury, even if
the mretiea had been otherwiee entitled
thereto. After thua voluntarilj submitting
their cause and encountering an adverse
decision on the merits, it is too late to qnes'
tion the jurisdiction or power of the court.
St Louis Je S. F. K. Co. T. UcBride, 141
U. 8. 127, 36 L. ed. 859, 11 Sup. Ct Rep.
S62; Western Life Indemnltj Co. v. Bupp,
23S U. S. Zai, 273, 69 L. ed. 220, 2S4, 35
Sup. Ct. Rep. 37.
Fifth. It is further contended that the
district court erred In entering judgment
against the suretj tor ihe deficlencj, in-
stead of merely for the costs and anj dsm-
•gea to the platntiO' resulting from the de-
ls.7 Incident to the unsuccessful appeal.
This objection raises a more serious ques-
tion. The supereedeas bond was in the
common form, conditioned that the appel-
lant shall "prosecute its appeal to effect
and answer all damages and costs, if it
tails to make its plea good." It has long
been settled that a bond in that form binds
the surety, upon affinnance of a judgment
or decree tor the mere payment of money,
to pay the amount of the judgment or de-
cree. Catlett T. Brodie, 9 Wheat. G63, 6
L. ed. 158. Rule 2S of this court — rule 13,
Stb C. C. A. — makes provision for a differ-
ence with respect to the bond, between a
judgment or decree for mon^y not otherwise
secured, and cases "where the property in
controversy necessarily follows the event
geof the suit, as in real actions, replevin, and
?ln suits OS mortgages." It is not* clear
whether the purpose of the rule, in case of
■ecnred judgments or decrees, was merely
to limit the amount of the penalty, or was
kIbo to affect the natora of the liabilities,
•0 that the sureties would be liable to an-
Ct. Rep. 864, and eases { swer only for the costs, and damagw act-
ually resulting from the deUy.
We are, however, relieved tram deciding
this question; beoause the record discloses
that after the issue of the execution com-
plained of, Pease psid the amount due "as
trustee for himself and the other stock-
holders of the Feopls's Light Company."
In other words, the record does not show
that Fease paid the amount as surety in
satisfaction of the deficiency of judgment
against himself. The payment by him may
have been made "aa trustee," because before
that time the corporation had been dis-
solved. It this payment was made on tw-
half of the corporation, obviously Pease
conld get no benefit from a reversAl of the
decree; and as the decree has been satis-
fled by the principal obligor, the sureties
are in no danger of further proceeding
sigalnst themselves. On the facts appearing
of record the decree is therefore affirmed.
SnptJUjnoNS «=al8(l)— Emox— Cdrtu.-
vBifino Recobd.
■ 1. A stipulation In a suit to recorer
demurrage charges on private cars, "made
for the purpose only of reviewing the judg-
ment" below, that the track on which the
cars were placed waa a "private track,"
will be treated by the Federal Suprems
Court on writ of error as a, nullity, wbers
the facta set forth in the petition and ex-
hibits which determine the character of the
track and the relation to it of carrier and
■bipper, and which were admitted by the
demurrer, show that such track in fact waa
owned by the carrier.
[Ed. NoU.~For otbar euea, ■•• StlpnlatEou.
Cent. Dig. g| 41, U. 4T. U.]
Cabbie Rfi 4=3100(1)— Deuubraok—Pbivatk
2. An interat&te carrier may lawfully
adopt a demurrage rule exacting demurrage
charges on private cars detained on the
carrier's tracks while still in railroad serv.
4 Cases showing the usual practice of giv-
ing to the sureties notice of the motion:
Empire State-Idaho Min. & Developing
Ca V. Eanley, 89 C. C. A. S7, 130 Fed. 09;
Gordon v. Third Nat. Bank, 6 C. C. A. 125,
13 U. S. App. 664, 66 Fed. 700. Ct. Leslie
V. Brown, 32 C. C. A. 668, 81 U. S. App.
727, 90 Fed. 171. Cases in state courU
holding that notice to the surety is not rs-
quisite: Rogers T. Brooks, 31 Ark. 194;
Meredith v. &uita CUra Min. Asm. 80 CaL
S17; Jewett v. Shoemaker, 124 Iowa, 681,
100 N. W. 531; Portland Trust Co. v,
Havely, 30 Or. 234, 246, 69 Pac. 466, «1
I^C. 848.
[Ed.
see Carriers,
Decided Harob
IN ERROR to the Supreme Court of the
State of Ohio to review a judgment
which affirmed a judgment of the Court of
Appeals of Cuyahoga County, in that state,
affirming a judgment ot the Court of Com-
mon Pleas ot said county In favor of a
carrier in an action to recover demnrrags
diargei on private cars. Affirmed.
tuple * KBT -NUMBER ID all Kar-Kumbarea Dtcsats * I&dsXM '^ ' ^
87 SUPEBME COUET REPOETER.
Oct. Tebk,
Bee ume case belovr, 9S Ohio Bt. 143,
LR-i.—, — , 112 N. E. 212.
The facta are stated in the opinion.
Messrs. M. Hampton Todd and WIN
Ilnm Ii. Day for plaintiff in error.
Meesrs. C. M. Horn and James H. Hoyt
for defendant in error.
n
p *Mr. Justice Brandela delivered tlie opin-
ion of tlie court;
Tlie Kational Convention of E&itwaj
Commi salon ere, an association comprising
tiie commissioners ol the several states,
adopted in November, lOOB, a Uniform De-
murrage Code. This action was based upon
extensive investigations and thorough dis-
cussion, participated in I^ the railroad
commtaslonera, commercial organizations,
representatives ol railroads, and individual
■hippers from all parts of the country. On
December 18, lOOB, the Interstate Commerce
Commission indorsed the rules so adopted,
and recommended "Uiat they be mads effec-
tive on interstate transportation through-
out the country." Re Demurrage Investi-
gation, 19 Inters. Com. Eep. 406.
These rules provide that after two days'
free time "cars held for or by coosignors
or Gonsigneee for loading" or unloading
shall (with certain exceptions not here
material) pay a demurrage charge of 91
per car per day. Private cars are specifl-
cally included by the following note:
Note. — Private ears while in railroad
■ervioe, whether on carrier's or private
trades, are subject to these demurrage rules
to the same extent aa cars of railroad own-
ership.
(Empty private ears are in railroad oarv-
ke from the time thej are placed by the
earrier for loading or tendered for loading
on the orders of a shipper. Private cars
under lading are in railroad service until
the lading is removed and cars are r^fular-
1y released. Cars which belong to an in-
dustry performing its own switching serr-
ice are in railroad serriee from the time
they are placed by the industry upon desig-
nated interchange traoka, and thereby tend-
ered to the carrier for movement. If such
ears are subsequently returned empty, they
«are out of service when withdrawn by the
a industry from the interchange; If'returned
tmder load, railroad service is not at an
and until Uie lading is duly removed.)
In 1910 the Hocking Valley Railway
Company, an interstate earrier, inserted In
its freight tariff duly filed and publiahed
as required by tha Act to Regulate Com-
merce, the demurrage rules and charges, in-
eluding that relating to private cars, quoted
above. Thereafter, Swift k Company, Chi-
sago meat packers, established on tte line
oi that railroad si Athvis, Ohio, » ware-
house to which It made, from time to timt,
shipmenta In private cars. These cars,
which were plalced on the switch used In
connection with the warehouse, were not
unloaded within the forty-eight hours' free
time allowed by the tariff ; and demurrage
charges were asseMed by the Hallway Com-
pany. Payment being refused, this action
was brought in the court of common pleas
of Cuyahoga county, Ohio, to reoover the
amount. The amended petition alleged,
among other thingi, that the demurraga
rules and charges bad been
"approved by the Interstate Commerctt Com-
mission by a decision rendered by the Com-
mission on the 14th day of November, 1910,
in the case of Procter A Q. Co. v. Cincin-
nati, H. & D. R. Co. which deciuon is re-
ported in 19 Inters. Com. Rep. GQ6 to 560,
inclusive thereof, and which decision, ap-
proving said car demurrage rulee and
charges, is hereby referred to and made a
part hereof, as though the same were fully
written out at length herein."
Swift Jt Company demurred; and defend-
ed on tlie single ground that the cars in
question wsre its private cars, standing on
its "private trade;" contended that the de-
murrage rule which required payment of
charges under such circumstancee was an
arbitrary imposition; that it was unlawful
and void; and that It was subject to col-
lateral attack, even though included in su
tariff duly filed and published under th(§
Act to Regulate Commerce. Two'iays after*
the caae had been heard on demurrer in
the court of common plos, oounael filed a
stipulation as follows:
"For the purpose only of reviewing the
judgment of the common pleas court on da-
foidant's demurrer to the amended peti-
tion, It is stipulated by the parties hereto
that the track on which the cars in ques-
tion were placed waa the private traiJc of
Swift k Company."
The next day judgment waa rendered for
the Railway Company. It was afflrmod both
by the court of appeals of Cuyahoga county
and by the supreme court of Ohio. 93 Ohio
St. 143, L.R.A.— , — , 112 N. B. 212.
The supreme court of Ohio assumed the
track In question to be a "private track,"
as stipulated by the parties, and declared
that "demurrage rules relating to private
cars employed in interstate commerce and
the charges asaessable thereunder aje mat-
ters properly included in the tariff or sched-
ule required to be filed and published.
This tariff containing the demurrage rule
having been filed and published according
to law was binding alilce cm carrier and
shippo', and so long aa it waa in force waa
to be treated aa thoi^ It wer« a statnt*.
. . , This rule having been approved tj
,A_^OOglC
1910.
SWIFT 4 CO. T. HOCKING VALLET a CO.
Federal trfbunal acting ^thin the Kope of
it« authority, its dectgion mnst be followed
b; the courts of thU state and be given fulL
force and effect."
The case was then brought to this court
OD writ of error. The errors assigned were,
in substance, that the demurrage rule was
repugnant to the Aet to Begulat« Commerce,
and that the decisions below deprived Swift
A Company of its property without the due
process of law guaranteed by th« 14th
Amendment.
Prior to the bringing of this actlim the
Interstate Commerce Commission had held
in Procter k Q. Co. t. Cincinnati, H. A
^D. R. Co. 19 InUrs. Com. Rep. 55S, that
g carriers were "within their lawful rights
* in 'establishing and maintaining" the above
rule for demurrage charges on private cara.
Hie commerce court approved the finding.
Procter t O. Co. v. United States, 188 Fed.
221, ZZ7. An effort to secure a review of
these declslona by this court failed. Proet*
vttQ.Co. V. United States, 225 U. 3. 282,
GB L. ed. 1001, 32 Sup. Ct. Bep. 701.
We do not find It necessary to decide
whether the ruling of the supreme court of
Ohio was correct; or whether the rule con-
cerning danurrage charges on private cars
ia in all respects valid; or whether a ship-
per who baa delivered private cars to a
carrier, knowing such rule to be in force,
!■ in a position to question its validity in
an action (or charges accruing thereunder.
For the record diBcloses, contrary to the
statement in the stipulation, that the track
in question was nof a "private track."
liie faeta which determine the charaoter
of the awitch and the relation to it of car-
rier and shipper were carefully set forth
ia the amraided petition and the "license"
annexed, copied in the msrgln.i Under it
1 Exhibit "B" — License. — Memorandum of
agreement, made this 22d day of March,
A. P. 1911, by and between the Hocking
Valley Railway Company, a corporation
existing under the laws of the state of Ohio,
hereinafter known as the "Railway Com-
pany," party of the first part, and Swift &
Company, a corporation whose principal
place 01 business is in Chicago, county of
Cook, state of Illinois, hereinafter known as
the "licensee," party of the second part,
witnesseth :
ing to the Railway Company at Athens,
Ohio, lor the purpose of maintaining there-
on a warehouse end office in connection
with its business at that point, together
with all the improvements and appurte-
nsncea thereto, in such a manner as not in
any way to interfere with the premises,
building, structures, tracks, or business of
aaid Railway Compsuiy, upon the following
dMcribed premises, to wit;
37 S. C— 18.
Swift &* Company occupied a part of tli«*
Railway Company's premises for Ita ware-
house and office and enjoyed the rights In
the switch from its main llnea. The '11- g^
cense" recites, among other things, the 11- g
censee's desire "to occupy a track o*ground •
belonging to the Railway Company' , . .
for the purpose of maintaining thereon a
warehouse and office ... in such a
manner as not in at? way to interfere with
the . . . tracks ... of the Rail-
way Company . , ,j" that the premises
lie on "the north side of the Railway Com-
pany's siding, known as the 'Bank Track*
. . . ;" that "the switch o( the Railway
Company hereby let and connected with ita
main line shall at all tlmea be under con-
trol of the Railway Company;" and that
"the Railway Company shall have the right
at all times to enter upon the premisea
herel^ let, for the purpose of repairing or
maintaining the track thereon, or switch-
ing or removing cars thereover." A rental
of (30 per annum is provided for; but the
license Is terminable on thir^ days' notice. ^
These facts ware admitted by the de- jj
murrer, upon* them the case waa heard by ■
the court of common pleas, and upon them
the case muat be deluded in thia court, un-
aiCectad by stipulation of counsel made "for
the purpose only of reviewing the Judgment
of the common pleas court." The construe
tion and effect of a written Instrument Is
a question of law, Dillon v. Barnard, 21
WalL 430, 437, 22 L. ed. 073, 070. Clear^
the track in question was not a private
track of the shipper, but a track of the
carrier, — like the spur passed upon in Na-
tional Ref. Co. V. St. Louis, I. M. A S. R. Co.
150 C. C. A. 301, 237 Fed. 347, affirmins226
Fed. 367.
If the stipulation la to be treated aa an
The northeast part of ontlot No. 112 and
the northwest part of outlot No. 113, in
the village of Athens, Ohio, fronting 17S
feet on ttie south side of State street, im-
mediately weat of the premises occupied 1^
the Standard Oil Company, said tract ex-
tending southward from said street to the
north side of the railway company's siding
known as the "Bank Track," as will more
clearly appear shaded in yellow on blue
print hereto attached and made a part
thereof, for a period of five (6) years, be-
ginning on the let day ol November, 1910,
at a rental of thirt; ($30) dollars per an-
num, payable annually in advance on Uie
followmg terms and conditions, to wit:
First. This agreement shall not be aa-
signed by the licensee without the writtoi
consent of the railway company being first
obtained, and in cose the said licensee shall
permit its Interests to be seized or sold un-
der legal process, this agreement shall there-
upon become null and void.
Second. The switch of the Railway Com-
.A^^OOglC
SM
S7 BUPREUB COUBT BSFOBIXB.
Oat. 1
cgreament eoneemlng tha legkl effeot of nd-
mitt«d fftoti. It i* obviously inoperatiTe;
rince the court eaimot be controlled by
agreemant of eonnael <hi & subaldiur ques-
tion of law. Bm caaeB cited In the margin.^
If the Btipul&tiou li to be treated »■ ui at*
tempt to agree "for the purpose only of re-
viewing the judgment" below, that what are
the facta shall be assumed not to be tact^ a
moot or fictitious ease Is presented, "^le
du^ of this court, as of evwy judicial tri-
bunal, is limited to determining rights of
persons or of property, which are actually
oontroverted In the particuIaT caw before
It. ... No stipulation of parties or
counsel, whether in the case before the
court or In any other casc^ can enlarge the
power, or affect the duty, of the court in
this regard." California *. San Pablo t
T. B. Co. 149 U. S. SOS, 314, 37 L. ed. 747,
748, 13 Sup. CL Rep. 876. Bee Mills r.
Oreen, 159 U. S. 651, S64, 40 L. ed. 203,
E94, IS Sup. Ct. Rep. 132. The fact tliat
effect was given to the stipulation by the
appellate courts of Ohio does not conclude
this court. 8e« I>ler t. Tudges of Ct. of
RegistraUon, 179 U. 8. 406, 410, 4S L. ed.
208, 264, 21 Sup. Ct. Rep. SE06. We treats
the stipulation, therefore, aa a nullity. %
* Consignors or consignees of freight shipped '
in private cars pay the same rates for
traiuportatlon as if the oonunodlties had
been shipped in the can owned by the car-
riers; but the owners or lessees of private
ears are paid or allowed by the carriers
(east of the Hiwissippi river) a sum equal
to three fourths of a cent per mile for re-
frigerator 01 tank cars and three fifths d(
a cent per mile for other cars. The care
are returned by the railroads to the owners
without extra charge. The mileage allow-
ance is paid for the return trip as well as
on the journey to deetination witli load.
And If the private car owner does not fur-
nish a load for the return journey, the car-
riers have the right to load the cars. Be
Demurrage Cliarges on Tank Cars, IS
Inters. Com. Bep. 378, 379.
Swift ft Company's cars were, therefore,
though privately owned, still in railroad
psny hereby let and connected with its
main line uiall at all times be under con-
trol of the Bailway Company.
Third. The Bailway Company shall have
Ibe right at all times to enter upon the
premises hereby let, for the purpose of re-
pairing or maintaining the trsok tliereon,
or switching or removing cars thereover.
Fourth. Either party hereto may termi-
nate this agreement at any time, siter giv-
ing to the other party thirty (30} days'
notice in writing, and at or before the ter-
mination of said thirty (80) days said
licensee shall, at Its own ezpanie, remove all
said Improvements from said premises,
without causing damage of any Itind to
Bailway Company may make such removal
at the sole cost of the licensee.
Fifth. The licaisee shall pay all taxes as-
sessed upoa Improvements upon said prem-
ises or said premises by reason thereof and
will at all times hereafter indemnify and
save harmless the Bailway Company, its
succeasoTs and assigns, from and against
all loss, costs, charges, and accidents what-
soever, which it may suffer, sustain, or in
any wise be subjected to, on account of in-
juries accruing to Its property, or loss or
damage to the property of any other per-
son or oorporation, arising out of, resulting
from or in any manner caused by the con-
struction, erection, maintenance, presence,
or use of said improvements installed or
existing under this agreement, and said
Bailway Company shall not be liable In any
way for an; loss or damase to said im-
provemeats or to any propeny belonging to
■ .. ii ■__ ir control of aaid Rcensea
fire or sparks therefrom, or any other cas-
ualty arising from the use and operation
of its railway, and shall be held forever
free and harmless by said licensee from any
such liability.
Sixth. The licensee shall consign all prod-
ucts shipped to it. Intended to be placed
on the siding hereby let, where the rates
and services are equal, via the line or lines
of the Bailway Company, and shall give
said Bailway Company the long hauls there-
of.
Seventh. The licensee hereby aoeepta the
license herein made with the above specified
terms and coDditions, and agrees that any
failure or default on its port ss to either
of the same may be held and coneidered a
forfeiture and surrender of this license by
it.
In witness whereof, the parties hereto
have caused this instrument to be executed
in duplicate, on the day and year first
above written.
The Hocking Valley Bailroad Company,
(Simied)
By W. h. Mattoon, Real Estate Agent
Witness:
(Signed) E. Oslei Hughes.
Witness:
{Signal) D. E. Eartwell.
■ San Francisco Lumber Co. v. Bibb, 139
Cal. 325, 73 Pac 864 1 Owen v. HerzUioft,
2 Cal. App. 622, 84 Pac 274; Aubuchon v.
Bender, 44 Mo. 660; Presoott v. Brocks.
— N. D. ~, 94 N. W. 88, 94; Holms v.
Johnston, 12 Heisk. 1G5. See also Breese
T. Haley, 11 Colo. 351, 362, 18 Pac. 561;
Lyon V. Bohert Garrett Lumber Co. 77 Kan.
S23, 827, 92 fac. 689; Wells v. Covenant
Mut Ben. Aaso. 128 Mo. 630, S39> ES & W.
607.
v.A^^OOglC
ino.
BOMB RAILWAY 4 L. CO. t. EXOVD OOUNIT.
urviee while mider lading. Tlie ca» while
on the Hwitch were on track owned bj the
Kulwftj Company. The "tianeportatti
within the meaning of the Act to Regulate
Commerce had not ended. It cannot be
•aJd that a charge lor detention of a prl'
Tate car and use of a railroad track under
■uch circumstance ii unreasonable. Even
before the adoption of the Uniform Demur-
rage Code such a charge had been npheld
hj the Interstate Commerce CommisBton.
Cudahy Packing Co. v. Chicago A N. W. R.
Co. 18 Inters. Com. Rep. 446. Defendant's
argument was based wholly upon the as-
aumptloa that the anltch was a "private
track;" and the proprie^ of auch a charge
for eara detained on a public track
BOt to have been questioned.
Affirmed.
Ut. Justice McKenna, Ur. Justice Tan
Xtevanter, and Mr. Justice McUoynolda
diaaent.
(24J V. a. tsn
BOME RAILWAY k LIGHT COMPANY,
Appt.,
FIX>YD COUNTY, GEORGIA, at at
Stixxt Rah-ooads «=>31— Riobt to Dhb
BioswAT B at DSE— Municipal ConsBnT
— CoupKnaATioiT — CouPKoyiez AaKn-
1. Any legal right of a street railway
wmpany to use highway bridges without
the county's consent and without making
compensation was deetroyed by the execu-
tion of a formal contract between the coun-
ty commisaloners and the street railway
eompany in order to settle the controversy
between them as to their respective rights
in the matter, whereby the county granted,
■ubject at all times to revocation, the right
to use the bridges in consideration of the
•treet railway company's promise to pa'
specified snm per annum for the use of Moh
[Kfl. Note.— For otber can*, sm BtreM Rsll-
Rwls, CanL Die H fT. <t.]
Street Hailboadb «=3I— Use of High-
way Bkidoe — Sharing Cobt or Re-
BDiuiiHa.
2. To require a street railway company
occupying certain highway bridges, under
a revocable grant from the county authori-
tiee, to pay one third of the actual cost of
removing the old bridges and erecting new
ones before auch company should be per-
mitted to use the new strueturea, was with-
in the power of those authorities, under Ga.
I Ifll4, p. 487j providing that
Uws i
lating permits and franchises to operate
over any of said bridges are revoked and
repealed "so far as the eams applies to any
future bridgea hereafter eonstmoted under
this or any other law," unless the street
railway company will conform to the rea-
sonable terms and conditions prescribed by
the county authorities, givbg the latter
exclusive right and jurisdiction to grant
franchises to operate over new bridges, and
to presoribe terms for such grants, and em-
powering them to require, as a aonditiom
precedent, that any grantee ahall pay to
the county "one third of tiie actual oost of
the building of said bridges . . . but
any corporation now having a franchise
shall have the right to use any new bridge
imposed' .
terms of the act,
[Rd. TTote.— For other oaMS,
roads, Cwit. DlK- II fl, U.1
ity authorities and ths
I StTMt Rall-
of Georgia to revltrw a decree which dl*-
miaaed the bill In a suit by a atreet railw^
oompany to enjoin eounty authorities from
requiring it to share the coat of removing
old bridges and erecting new ones. Affirmed.
See same case below, 228 Fed- T7S.
The foots are stated in the opinion.
Messra. John O. Doolan, Linton A.
Dean, J. Ed. Dean, Edmund F. Trabue, and
AttUIa Cox, Jr., for appellant.
Messrs. George E. Haddox, Mark B.
Eubanki, and Joel Branham for appellee*
•Mr. Juatlce HcReynoIds delivered the?
opinion of the oonrt:
Within the limits of Rome, Georgia, sines
ISSl, three public bridgea have crossed the
Etowah and Oostanaula rivers. Appellant
is successor to the Rome Street Railroad
Company incorporated la 1SS4 by special
act, and empowered to construct and operata
railroads in that eltj, also In certain net(^<
boring towns, and, with conaent of thea
Floyd county board of Commlsalonera ofS
roads and*revenues, for B miiea along publie*
roads (Ga. Laws 18B4-6, pp. IBl, 23S),
Authority was given to use horses, ele>
tricity, underground cables driven by steam,
any other appliance that may her»
after be Invented or used aa motive power."
The company began to run horse-drawn cars
the city streeta and across Howard
street or Second Avenue bridge as early
aa 188S; end this mode of operation con-
tinued nntil 1892 or 1S93.
The Howard Street bridge having been
destroyed in April, 188S, the county erect-
ed a new one upon the same site; thereafter
It refused to permit the car company to
lay tracks or operate over this without pay-
ment therefor, and brought suit to enjoU
any attempt so to do. In Floyd Coun^ t,
Rome Street R. Co. 77 Ga. 017, 3 S. E.
3 (Oct Term, 1869), tha atato auprsoui
=3 For otlier cases h
IS topic & KBY-NUHBBR In all Kar-Mmbned Dlcestt A IMeXM
-.gic
ESS
87 SUFBEMB COUET B£PORTES.
OoT. Tbuc,
court held; "Die oalj question made by the
record, therefore. Is, whether the legislature
has authorized the street railroad nompaity
to appropriate thia bridge to ita use in
the tuanner claimed by it, without the coun-
t's consent, and without making It com-
penaation. . . . The bridge forms a con-
tinuation of the atreetB of the city across
the river, and is a part of the same. . . .
The legislature, unless restricted by the
■tats ConatitutioD, may, even witliout the
consent of a municipality, and without
allowing it compeneation, authorize railroads
to be laid in its highways. . . . But
even had the consent of the county of
Floyd been required to this use of the bridge
by the street railroad compiin;, tJiat assent
was given, and when the condition on which
It was accorded was accepted and acted
upon by the company, tt became a binding
contract until the license was revoked by
the only authority having power to revoke
it . . . The precise point insisted upon
by counsel tor the county is, that where any
part of a public etreet or highway is
washed out or otherwise destroyed by any
a means, end the damage is repaired by a new
% structure upon the portion thus destroyed
" or rendered unfit for use, this givea the
county a right to exact additional com-
pensatioD from a railroad company which,
previously to the injury, used the street
or public highway with the assent of the
municipality, where the railroad company
proposea to make the same use of the street
vr highway after it has been repaired. ' We
certainly Icnow of no case which has carried
the right of compensation for Its use to
this extent, and think that ita recognition
and enforcement by the courts would work
great injury to the prosperity ol tiie com-
mumty."
An amendment to Ita charter, September
21, I8B7 (Ga. Laws 1B87, p. US), em-
powered the company io use dummy ateam
engines on the brldgea, subject to such
regulations as the board of commissioners
might prescribe from time to time. Ex-
tensions were also specially authorized with
consent of the board as to public roads and
town authorities as to streets. Another
amendment, November IE, 1S89 (Ga. Laws
leeo, p. SD8), prohibited the use of dummy
engines or steam power on the bridges
without unanimous consent of all the com-
miasioners, declared by public resolution. In
an oRlcial meeting, and it provided, "that
the board of commissioners of roads and
revenues of Floyd county shall not have the
right to grant any vested or contract rights
to said Street Railroad Company, or any
other persons on or over said bridges, but
may, in their discretion, grant temporary
naes and privllegea to said Railroad Com-
pany over si^d bridges, subject at all time*
to be revoked by said commissioners."
February 25, 1892, Floyd county, through
ita board of commissioners, and the Rome
Street Railroad Company, by formal writ-
ing, agreed that "said party of the first
part grants to tiie said party of the second
part the right to lay and maintain a aingle
track on one aide of the county bridges at
Rome, to wit, , . , with the right to
place electric wirea and appliances and ta9
run'electric cars across said bridges upon*
the consideration and conditions herein
named," — among them payment of $100 an-
nually for use of each bridge, and com-
mencing to build electric lines within
ninety days. Later, in 1S02 or 1S03, the
car lines were equipped electrically and ex-
tended over and beyond all of the bridges,
and since that time have been cont[nuous1y
operated. February 3, ISOG, it was stipu-
lated by the county and the City Electrio
Railway Company, a succcasor to the Rome
Street Railroad Company, and appellant's
predecessor, "that said party of tlie first
part grants to the said party of the second
part the right to use its electric wires and
appliances and to run electric eora serosa
the Floyd county bridges . . . said
company shall pay annually to said party
of the first part the sum of £200 for the use
of said bridges, in consideration of the
grant herein named."
In City Electric R, Co. t. Floyd Coun-
ty, llfi Ga. 655, 42 S. B- 45 (March Term,
1902), the state supreme court suatained
the agreement of February 25, 1802. It
said: ''If the railroad company originally
had the right, under the power granted to
it by the legislature, aa we are Inclined to
think it bad, to construct and operate ita
electric lines over the bridgea in question
without the consent of the county and with-
out paying anything whatever therefor, it
lost this right when the dispute between
it and the county was compromised and
settled by the execution of this contract.
If there had been no controversy between the
parties as to their respective rights in the
matter, and the county had simply charged
the railroad company $100 per annum for
the use of each of the bridges, and the
company had simply agreed to pay this
sum annually, the contract entered into
might have been, as contended by the plain-
tiff in error, a nudum pactum, and, there-
fore, not binding upon the company. But
this was not the case; the parties asserted^
conllicticg claims, 'depending upon « quae-*
tion of law, and theae claima were com-
promised and settled by the contract now
under consideration."
An act of the Georgia legislaturt^ ap-
D,at,z.d>..'^-.00'^IC
IBIS.
BORN T. MITCnELU
proved Anguit IS, 1B14 {Qb. lam 1S14, p.
4ST], provides:
That all right, title, and Intereat In the
Rome bridge*, together with complete Jurit-
diction uid control over tbent, ihall be
Teated in Flofd couotj, to be aiercised bj
Its authorities. All permits and franchiaea
theretofore granted bj state, county, or
eit7, to any street railroad company, to laj
trades or operate cars over any one of the
bridges, are revoked and repealed
as the same ^)plies to any future bridges
hereafter constructed under this or any
other law, untea* the said companies will
conform to the reasonsbte terms and condi-
tions required by the county authorities;"
and Floyd county is authorized to condemn
and remove existing bridges and construct
new ones. The street railway company,
upon notice, shail remove its tracks, aa may
be required by the county authorities ; the
latter are given ezcluMve right and juris-
dictioD to grant Irancbisea to operate over
new bridges and to prescribe terms for such
grants; and they are authorixed to require
as a condition precedent that any grantee
shall pay to the county "one third of the
actual cost of tlie building of said bridges
. . . but any corporation now having a
franchise shall have the right to use any
new bridge upon complying with the rea-
sonable conditions imposed by the board
of commissioners and the terms of this act."
The validity of any part of the act shall be
contested only by injunction proceedings
before the work of tearing down and remov-
ing the bridges is begun.
The commissioners of Floyd county gave
public notice. May 3, 1B16, that on June
16th, they would begin the work of tearing
((down old and rebuilding new bridges at an
^estimated total cost of $230,000. Ten days
* laterHhey passed resolutions wherein, after
referring to the Act of August 16, 1B14,
and reciting their determination to remove
the old bridges and erect otiiers, they de-
clared that appellant would be required to
pay one third of the actual cost of remov-
ing the old bridges and erecting new ones,
"which sum shall be paid to the county
treasurer before said company shall be
allowed to place any tracks, wires, equip-
ment, or operate any cars on and over"
the new atructurea.
By fU original bill, filed May 26, 1S15,
In the United States district court, appel-
lant aought to enjoin defendants from un-
dertaking to enforce the Act of IfiH accord-
ing to their declared purpose upon the
ground (a) that such action would deprive
it of property without due proceea of law
apd ot the equal protection of the laws,
and Impair the obligation of oontracta with
ib» state, contrary to the Conatitution ol
^^sFor otbf r caiei >e
the United Statea; (b) that, when properly
construed, tha Act of 1914 does not author-
lae defendants to require appellant to pay
one third of the cost of removing old
bridges and constructing others, such charg*
being permitted only In the absence of a
then-existing franchise to cross the former.
Being of opinion that nothing in acta of
the legislature, ardinancea, or reaolutiona
gave appellant "any such vested interests,
or auch right to occupy and use these
bridges," aa it claimed, upon motion, tha
trial judge dismissed the bill. Tha judg-
ment is correct and must be aBSrmed.
It la unnecessary now definitely to da-
termine what rights were conferred by tha
Act of 1884. Under the agreements of
1992 and 1B9S between appellant's predecea-
sors and tha board of commissioners tha
former accepted a temporary grant, sub-
ject at all times to revocation, — all the lat-
vas empowered to make by the Act ot
. Thla, we think, is clearly true, and
it is also but the logical result of what
the supreme court of Georgia held in City^
Electric R. Co. v. Floyd County, supra.g
And'sea West End A A. Street E. Co. T.>
AUanta Street R. Co. 4B Ga. 151, 163.
CouslderlDg the entire Act of 1914, we
are unable to conclude that the legislature
did not Intend to authorize the county au-
thorities to require appellant to pay "a
sum equal to one third of the actual cost
of the building of said bridgea" before being
allowed to use the same.
Affirmed.
Habeas Cokpus <s3lI3(3>— Apfeai, raou
CiRCDiT CouBT or Appxals— Ju&iSDic-
TiONAL Amount.
1. A hsbeuB corpus case cannot involve
the jurisdictional amount uMessary, under
the Judicial Code, { 241,i to suiitain an a]>-
peal to the Federal Supreme Court from a
'ircuit court of appeals.
[E;d. Nota.— For oUiu- gsm^ sea Habeai Cor-
piu. Geat. Dif. I ICH.]
case existed after the passage of the
act of March 3, 1801 (2S Stat, at L. 827.
chap. 617, Comp. SUt 1013, g IMS), only
in tse cases designated in S S of tbat act as
Involving constitutional, jurisdictional, and
certain other speciBed questiona
[Eid. Note,— For otbet caMi. sea Habeas Cnr-
rus. Cent. DJR. I 10*.]
TglC
£94
87 SUFBiaiB COUKT BEPOBTEB.
Oot. TxBif ,
Habeas Cobpds «=3lI3(2>— Appsai. ibou
CiBOOiT CODRT or Appeals.
8. The abolition of the federal drcolt
courts by the Jadidal Codo, | 289,* remorw]
the Ust TMtige of anj Kuthority for &n ap-
peal to th« Federal Sapreme Court from
the circuit courta of appeals in habeas cor-
piu caaea which U astertod to arleo out of
the pioviBiona of U. S. Kev. SUt. §{ 763,
764, giving appeals in habeas corpus cases
from diatnct to circuit courts, sod thenca
to tiie Supreme Court.
fBd, Not*.— For other cbmi, ■•• H&baaa Oor-
pns. Cant, DH. i 103.]
[No. 679.]
APPEAL from the United Statea arcuit
Court of Appeals for the first Circuit
to review a decree which affirmed a decree of
the District Court for tho District of Moasa-
chusetta, refusing relief by nay of habeaa
corpua to a person in custody under an in-
dictmeait found in that dietrict. Dismissed
for want of jurisdiction.
Sea same case below, 147 a C. A. 13,
232 Fed. 819.
Messrs. Josepli F. O'Oonnell, James E.
0*Coiuiell, and Daniel T. O'Oonnell for ap-
pellant.
Asaistant Attorney Qeneral Writ«d for
appellee.
Memorandum opinion ij Mr. Juatlc«
Fttner, by direction of the court;
K Appellant, being in the custody of the
wUnited States marshal for the district of
Massachusetts, under an 'indictment found
In that district for a violation of the Act
of May 3Q, 1903, chap. 234, 36 Stat, at L.
6S4, now §1 23S-S36 of the Criminal Code
(chap. 321, 3S Stat, at L. 1086, 1134, Comp.
Btat. 1913, 1) 10,106, 10,402), in unlaw-
fully transporting eiplosiTes from Ifew
Tork through Maaaacbusetti to Taneeboro,
Maine^ petitioned the district court for a
writ of habeaa corpua upon the ground that
the order of eommltment was In violation
«f hU rights under tha Conatltutiou and
laws of the United Statea and existing trea-
tlea between the United SUtea and the
German Empire and the Kingdom of Prua-
aia, for that (among other reaaona) ap-
pellant is an olBcer of tha army of the
German Empire; that a stata of war, recog-
nized by the President of the United Statea
In an ofBcial proclamation, exlsta between
OreaA Britain and Germany; that appel-
lant la accuaed of deatroylng a part of the
International bridge In tha townahlp of Mo>
AdaB, Province of New Bronawlck, and '
[Dominion of Canada; that the charge of
carrying explosives lll^ally, upon which
he is held in custody, is, if true, Insepar-
I ably connected with the destruction of that
bridge; and that "he is a subject and citi-
zen of the Empire of Germany and domi-
ciled therein, and is being held in custody
for the aforesaid act, which was done under
his right, title, authority, privilege, pro-
tection, and exemption claimed under bis
commission as said officer."
After a hearing, the district court re-
fused the writ of habeas corpus and dismissed
the petition (223 Fed. 549], and an appeal
to the eircuit court of appeals for the firat
circuit resulted in an affirmance of the
judgment (147 C. C. A. 13, 232 Fed. 819).
An appeal from the judgment of affirm-
ance to thla court was then allowed.
There la a motion to dismiss the appeal,
and this must be granted. Assuming, sa
we do, that the petition for habeas corpus
raised questions involving the application
of the Constitution of the United Statesa
or the construction of a treaty made underS
its authority, appellant might>have taken a*
direct appeal from the district court to this
court under g 238, Judicial Code (Act of
March 3, 1911, chap. 231, 36 Stat, at L.
1087, 1157, Comp. Stat, 1913, §g 088, 1215),
Frank v. Mangum, 237 U. 8. 309, S9 L. ed.
960, 3S Sup. Ct Hep. C82; Kelly v. Grifan,
241 U. 8. 6, 60 L. ed. 861, 36 Sup. Ct. Bep.
487; Bingham v. Bradley, 241 U. S. 611,
60 L. ed. 1136, 36 Sup. Ct. Bep. 634. Hav-
ing appealed to the eircuit court of appeals,
he cannot bring his ease here except under
some provision of law allowing an appeal
from that court to this. Appeals of thla
character are regulated by % 241, Judicial
Code (38 Stat, at L. 1157, ch^. 831, Comp.
Stat. 1013, I IS18), and are confined to
eases "where the matter In controvovy
shall exceed one thousand dollars, besidea
costs." It long has been settled that the
jurisdiction conferred by Congress upon
any court of the United States In a eaaa
where the matter In controversy axceeda a
certain sum of money does not Include caaea
where the rights of tiie parties are Incapable
of being valued in money, and therefor*
excludes habeas corpus cases. Kurtz t.
Moffitt, 116 U. S. 487, 4BS, 29 L. ed. 468,
400, 6 Bvp. CL Rep. 148; Lau Ow Bew v.
United States, 144 U. fi. 47, 68, 30 L. ed.
840, 344, 12 Sup. Ct. Bep. 617; Croea <r.
Burke, 146 U. 8. 82, 88, 36 L. ed. B90, 898,
13 Sup. Ct Rep. 22; Whitnqr v. Dick, 202
U. S. 132. 135, 60 L. ed. 063, 964, 28 Snp.
Ct Bep. 6B4; Eealy t. Baekua, 241 U. S.
666, 00 I., ed. 1224, 36 Sup. Ct Rep. 724.
Appellant seeks to susti^ his appeal im>
der a 763 and 7«4 of the Bevised Btitt-
^sFw oUiar csMs M* same topic * KET-NUU BBR In aU Ker-Nnmbersd Slnsts * IndsiM
■Act Uarcti t. ISll. o. 2S1. IS SUt. Ufl [Comp. Bt Ull, | U«-] t^iOOQ|C
. IBIS. WASHINGTON ZX KEL. ORAT8 H. I. 00. T. 00AT8-F0KDNKT L. CO. 205
^stM. 1 Th«f gave a right ot'appcal from
Um diatriet court to tha clrenit court Id
two clMtn of habcfta corpna euea, mnd ut
■ppeal from the drcnit court to thU eotirt
in caaea of k eUu that includes the preaeut
case. Section 704 was amended by act of
March 3, 18BS, chtqi. SC3, 23 Sta.t. at L. 437,
by eztendiag the right ot appeal from the
irfreuit courts to thia court eo aa to include
the remainiog casea described in the pre-
ceding section. But by 3 4 of the Act of
March 8, 1B91, establishing circuit courU
of appeab (26 Stat, at L. 827, chap. G17,
Comp. Btai 1913, S lB4fl), all appellate
jurisdiction was taken from the circuit
courts, and tij S§ 6 and S it was distributed
iMtween this court and the circuit courts of
appeals. B7 | 14, all acts and parts ot acts
relating to appeals or writs of error, Ineon-
aistent with the provisions for review in
i% S and 6, were repealed. Section 5 pre-
served a direct appeal from the district
court to this court In cases involving the
construction or application ot the ConBtl-
tution of the United SUtea, or the validity
or eonstmetion ot any treaty made under
its authority. In Cross v. Burke, 146 U.
S. 82, 88, 36 L. ed. 896, BQS, 13 Sup. Ct
Bep. 22, it was pointed out that the effect
of this was that appeals from the decrees
of the circuit court on habeas corpus could
no longer b« taken to thia court except in
eaaea of the clsea mentioned in the 5th sec-
tion of that act- And it was so held in
Ke Lennon, 160 U. S. 393, 399, 37 Ii. ed
1120, 1122, 14 Sup. Ct. Bep. 123.
Even were It otherwise, an appeal from
1 Sec. 763. From the final decision of any
eourt, justice, or judge interior to the cir-
cuit court, upon an application tor a writ
of liabeas corpus or upon such writ when
issued, an appeal may be taken to the cir-
cuit court lor the district in which the
1. In the case of any person alleged to
be restrained of his liberty in violation of
the Constitution, or of any law or treaty
of the United States.
2. In the caae of any prisoner who, be-
ing a subject or eltlzen ot a forei)^ state,
and domiciled therein, la eonunitted or con-
fined, or in custody by or under the author-
ity or law ot the United Statea, or ot any
stat«, or proceaa founded thereon, for or on
account of any act done or omitted under
any alleged right, title, authority, privi-
lege, protection, or exemption, set up or
claimed under the commission, order, or
sanction of any foreign state or sovereign-
ty the validity and effect whereof depend
upon the law of nations, or under color
thereof.
SecL 764. Tmm the final dedaion of such
circuit court an appeal may be taken to
the Supreme Court in the cases described
In the last clause of the preceding section.
the circuit court to this eourt was not tlM
same as an appeal from the circuit court ot
appeals to this oonrt. And the abolishmmt
of the circuit courts by | 28S, Judicial Coda
[36 Stat, at L. 1167, chap. S31, Comp. Stat.
1913, I 1266], removed the last veatlge o(
authority tor an appeal to thia court under
S 784, Hev. SUL
Appeal dismissed.
(M V. a. SI)
STATB OP WASHINGTON EX BEL.
GRAYS HAEBOR LOGGING COMPANY
and W. E. Boeing, Plffa. in Err,
COATS-FORDNEY LOOQING COMPANY.
OOVBTB 0=>39S— BXVIBW OF Statk OovtoB
— FlHALITT OF DSCISIOK BSLOW,
A Judgment of the highest state court
affirming on certiorari a judgment entered
below to the effect that the petitioner was
entitled under Wash. Const art 1, S 18, and
Wash. Laws 1913, chap. 133, to condemn
and appropriate certain land for a privat*
way of necessity, and remanding the c&uso
tor further proceedings, i. e., the determina-
tion and assessment of damages and eomfien-
sation, ie not final far the purpose ot review
in the Federal Supreme Court, since the
judgment must be conatrued as Iwing sut>-
ject to the condition ot the state Constitu*
tion that proper compensation be first as-
certained and paid.
[lU. Note.— For otlisr cases, see Oonrta, Cent
DIs. t UHg.1
[No. 132.]
IN ERROR to the Supreme Court of tha
State of Washington to review a judg-
ment which afOrmed 00 certiorari a jud^
meat of the Superior Court tor Chdialis
County, In that stata, to the effect that ths
petitioner was entitled to condemn and ap-
propriate certain land tor a private way ot
necessity, and remanded the cause for fni<
ther proceedings. Dismissed for want of
jurisdiction.
See same case below, 82 Wash. 003, 144
Fac 722.
The faota are stated in the opinion.
Messrs. W. H. Abel and A. M. Abd for
plainUffs in error.
Measra Wllliani H. Smith, Alexander
Britton, Evans Browne, and V, W. Clem>
ents for defendant in wror.
*Mr. Justice Pitney delivered the opinion*
ot the court:
The Coats-Fordney Logging Company, do-
fendant in error. Instituted a proceeding
by petition in the superior court of t^
3
w ma* topic * KBT-NUHBaR In all Ksr-Nambersd Dtsset* A lodaaes
gic
tl SUPREME COURT B£POET£a.
Oct. :
•Ute ei Wasblngton for Chehalia county
kgaiut Grftja Harbor Logging CompEinf
and W. E. Boeing, wherein It sought to con-
demn and take certain of their landt litu-
ate in that county for the purpose of
eonBtructing and icaintaiiiing a logging rail-
road as a private way of necessity in order
to bring Its lumber to market. The pro-
ceeding was baaed upon the following pro-
Tlaions of the constitution and atatuteft of
the atate;
Section 10 of art. 1 of the Conailtution
declares; "Privata property ahall not be
taken for private uae, except for private
wftjB of neceaaity, and for draina, flumes, or
ditcliea on ot acroas the lands ot others
agricultural, domestic, or aanitary pur-
poaec. No private property shall be taken
or damaged for public or private uae with-
out juat compenaation having been flrat
made, or paid into court for the owner, and
no right-of-way ahall be appropriated to the
aae of any corporation other than municipal
until full compensation therefor be flrat
made in money, or ascertained and paid
into court tor the owner, irreapDctive of
any benefit from any improvement proposed
by auch eorporatlon, which compensation
•hall be ascertained by a jury, unleaa a
jury be waived, ..." Under this
conatitutiofial provision the legUlatura
paaaed an act {Seas. Laws 1013, chap. 133,
p. 412; Bern, i Bal. Code, §S SS57-1 et
■eq.) which proridea that lands for the con-
atruction and maintenance of a private way
of necessity may be acquired by eondemna-
K tion. Including within the term "private
S way of neceasify" a right of way over or
* tiirough the land of another for meana of
ingreaa or egress and the construction and
maintenance ot roads, logging roads, tram-
way a, etc, upon which timber, atone,
minerals, or oUier valuable materials and
products may be transported and carried.
The procedure is to be the same Ba provided
for condemnation of private property by
railroad companies. Thia refers us to Rem.
ft Bal. Code, jj 921-031 (5037-6046),
whereby it ia provided, in aubatance
(§ 02J), that any corporation authorized
by law to appropriate land for a right of
way may present to the superior court of
the county in which the land ia situate a
petition describing the property aought to
be appropriated, setting forth Uie names of
the owners and parties interested, and the
object for which the land ia sought to be
appropriated, and praying that a jury be
Impaneled to ascertain and determine the
oompenaation to be made in money; a notice
(I 922) of the petition stating ths time
and place where it will be preaented to the
court is to be served upon each person
named therein as owner or otherwise in-
terested; (I 026) at the hearing, if Uia
court be satisfied by competent proof that
the contemplated use for which the land is
sought to ba appropriated is really a publie
uae, or is tor a private use tor a privata
way of neceasity, and that the public b-
terest requires the prosecution ot auch
enterprise, and that the land sought to be
appropriated is necessary for the purpose,
the court may make an order directing tha
sheriff to aummon a jury; at ths trial
(S B20] the jury ahall ascertain, determine,
and award the amount of dsjnages to b«
paid to the owners and other persons in>
terested, and upon the verdict judgment
shall be entered for the amount thus award-
ed; {§ 927) at the time of rendering judg-
ment for damages, if the damagea awarded
be then paid, or, it not, then upon th^
payment, the court ahall also enter a judg-
ment or decree of appropriation, thereby
vesting the legal title to the land in the^
corporation seeking to appropriate it; S
*(S 929) upon the entry of judgment upon*
the verdict of a Jury and award of damagea
the petitioner may make payment ot the
damagea and coata ot the proceeding to
the parties entitled to tha aame by deposit-
ing the aame with the cl^rk of the auperior
court, to be paid out under tha direction
of the court, and upon making auch pay-
ment the petitioner ahall be released from
further liability, unless upon appeal tha
owner or other party interested shall re-
cover a greater amount; (g 031) "Either
party may appeal from the judgment for
damages entered in the superior court to
the supreme court of the state within thir-
ty days after the entry ot judgment as
aforesaid, and such appeal shall bring be-
fore the supreme court the propriety and
justness of the amount of damages In re-
spect to the parties to the appeal."
FlalntifTs in error opposed the petiUoB
for condemnation upon the ground, among
others, that the Act of 1913 was contrary
to the Constitution of the United States,
and that petitioner sought to take their
property tor a private use, and therefore
without due process of law, In violation of
that Constitution. After hearing teati-
mony upon the question ot necessity, the
superior court entered an order of condem-
nation, and by the same order set the cause
down for trial before a jury for the purpose
of determining and asseasing the damagea
and compensation. At this point, and b»-
fore the cause could be brought to trial
before a Jury, plaintiffs in error applied for
and obtained frcon the snprune court of th«
etata a writ of certiorari for the pnrpoaa
of reviewing the question of ths constitu-
tionality of the act and the right of peti-
tioner ta condemn their property tor Its
,A_.OOglC
19IS. WASHINQTON EX REL. GRAYS H. L. 00. ▼. COATS-FOKDNET L. CO. 2S7
right of WBj. The lupreme court ausUined t
the proceedings (82 Wash. E03, 144 P»o.
722), Kiid entered a Judgment affirming the
Judgment of the superior court, and remit-
ting the cause to that court for further
proceedings. A writ of error wm then
aucd out from this court under | 237, Ju-
diciftl Code [36 Stat, at L. 1159, chap. 231,
laComp. SUt 1913, § 1814].
• ' Defendant in error moves to dismiss the
writ of error on the ground that the judg-
ment of the state court is not final. To
this plaintiffs in error respond hj saying
that, under the state practice, the judgment
of the superior court establishing the right
of petitioner to acquire the propertj or
riglit of waj sought is final; that while
an appeal nill not lie from such a judgment
to the supreme court, this I* because the
statutory provision for an appeal in con-
demnation cases is limited to the question
of the amount of damages, and a general
statute providing for appeals has been held
not applicable to emineot domain proceed-
ings (Western American Co. t. St. Ann Co.
22 Wash. 168, 60 Fac. I6S), that because
•n appeal will not lie, tlie supreme court
has hold that a writ of certiorari or review
will issue to brln^ before that court for
determination the questions of use and
necessity (Seattle & M. R. Co. v. Belliug-
hom Bay & E. R. Co. 29 Wash. 491, 02 Am.
St. Rep. 007, 69 P&c. 1107) ; and that by
repeat^ decisions of that court It has been
settled that after an order adjudging neces-
sity has been made and a trial had to de-
termine the amount of damages, an appeal
token therefrom raise* no question as to
the right to condemn, but is confined to the
propriety and justness of the amount of
damages (Pruitland Irrig. Co, t. Smith, 54
Wash. 186, 102 Pac. 1031; Caliepel "Diking
Dist T. McLeish, 93 Wash. 331, 116 Pac,
SOS; Seattle, P. A. A L. C, R. Co. v. Land,
81 Wash. 206, 209, 142 Pac. 660; State ex
reL Davis v. Superior Ct, 82 Wash, 31,
34, 143 Fac. 1S8). In this state of the local
practice it Is argued that the judgment that
has been entered should tie regarded as final-
ly disposing of a distinct and definite
branch of the case, and therefore subject
to our review as a final judgment; leaving
ths ascertainment of the compensation and
damages to be dealt with as a separate
branch of the case. Wheeling ft B. Bridge
Co. V, Wlieeling Bridge Co. 138 U. B. 287,
290, 34 L, ed. 967, 968, 11 Sup. Ct. Rep.
« SOI, is cited in support of this contention,
Moud certainly seems to lend color to it.
* But, notwithstanding* the decision In that
case, we cannot regard a condemnation pro-
ceeding taken under the authority of the
Constitution of Washington and the Act
of 1913 as ■evsrabls into two distinct
branches. The Constitution forbids that
the property be taken without compens^
tioa first made or ascertained and pUd
into court for the owner, and, of course, in
cose of oontroversy, compensation cannot
be made to Ihe owner until the amount of
it has been ascertained. It follows that the
judgment Altered by the superior court to
the effect that petitioner was entitled to
condemn and appropriate the land in ques-
tion for its right ol way must be construed
as being subject to a condition that the
proper compensation I>e first ascertained
and paid.
A* ws read the decisions of the euprenw
court of the state, such judgments are not
interpreted in any other sense; th^ are
not described as final, nor as Independent
judgments. In two cases the terra "order*
and even "preliminary order" has been
employed with respect to such judgments
(State ex reL Pagett t. Superior Ct. 49
Wash. 35, SB, 89 Pac. 178; Seattle, P, A.
A L. C. R. Co. T. Land, 81 Wash. 208, 209,
142 Pac, 680), and they are held reviewable
bj certiorari, and not by appeal, not hecauM
they are final, or are independent of the
subsequent proceedings ascertaining tha
damages, but because in Wasliington pro-
ceedings by appeal are statutory, and no
statute has been enacted giving an appeal
from the order or Judgment determining
the questions of use and necessity; by rea-
son of which, the writ of certiorari la em-
ployed as a means of exercising the con-
stitutional poorer of review,
Tlie judgment, therefore, seems to us to
be interlocutory, and the case to be within
the authority of Luxton v. North River
Bridge Co. 147 U. S. 337, 341, 37 L. ed. 104,
196, 13 Sup. Ct. Rep. 369; Southern R. Co.
V. Postal Teleg, Cable Co. 170 U. 8. 941,
643, 45 L. ed. 355, 358, 21 Sup. Ct. Rep.
249, and United EUtea v. Beatty, 232 U.
S, 493, 496, 68 L. ed. 989, 687, 34 Sup. Ct
Rep. 392. ^
When the litigation in the state courts^
is brought to a'conclusion, the cose may be*
brought here upon the Federal question*
already raised a* welt as any that may be
raieed hereafter ; for although the stata
courts, in tha proceeding* still to be taken,
presumably will feel themselves bound by
the decision heretofore made by the suprema
court (62 Wash. 603), as laying down tha
law of the case, this court will not be thus
bound (United States v. Denver k R. Q.
a. Co. 191 U, 8. 84, 93, 48 L, ed. 109, 109,
24 Sup. Ct. Rep. 33; MessenBcr t. Ander-
son, 225 U. S. 439, 444, 59 L. ed. 1152,
1159, 32 Sup. Ct Rep. 730; Coe t. Armour
Fertilizer Works, 237 U. S. 413, 418, S>
L. ed. 1027, 1029, 35 Sup. Ct. Rep. 926).
Tht judgnunt iHought np by the prssent
D,at,z.,i-.,'^-.OOt^lC
87 SUPREME COURT REPORTEB,
OOT. lEMtl,
writ of error sot being % ttmi judgment,
within the meaning of S 237. Judici^ Coda,
tlia writ muet be dismissed.
(243 V. 8. SS»
FRANCIS M. WILSON, United State* At-
torney for tlie Western Dietrict of llie-
sDuri, Appt.,
ALEXANDER NEW «nd Henry C. Ferris,
as Receiver! of tlie Miseouri, OkUhoma,
& Gulf Railway Company.
MAJ9TEB AND Servant d=3l3— Pbebcbib-
iHQ Standard Wobeday fob Railwat
EMTLoYfis — Tempo BABT Wage R.Eam.A-
Tioif.
1. Congress, confronted with the Inmii*
■ent interruption of interatate commerce by
B threatened general strike of railway ~
ployees, the outcome of a dispute ovi
wage standard, could, in the exercise of Its
power over commerce, fix such a permanent
Standard working day for employees en-
gaged In the operation of trains upon inter-
state railway carriers, and make such a
temporary wage regulation, as is done by
the Act of September 3, G, 191S (39 Stat
«t L. T£l, chap. 43S), which establishes a
permanent eight-hour standard for a day's
work by such employees, creates a commis-
sion to observe durine a period of not less
than six nor more than nine months the
operation and effect of such standard work-
day and to report Its flndinss to tbe Presi-
dent and CongresB within thirty days there-
after, and forbids the carriers, pending such
report, and for a period of thirty da*s
thereafter, to pay such employees for ei^t
hours' work a wage less tiiaii the existing
standard day's wage, with pro rata pay for
all necessary overtime.
[Bd. Note^-For other eases, ■•• Hsstar and
Oervant. Cent. Die I li-]
ConBtmmoitAi. IiAW «=9238(2)— Equal
PiOTXCTiOH or TBI Laws— Ci-AsaiFi CA-
TION—REOTTiATioif OF iNTKaSTATE Co«-
UEKOE— ESXXUPTIOIT OF Shobt Lihe and
Sleotbio Railwayb.
2. The exemption of railways Independ-
ently owned and operated, not exceeding
100 miles in length, electrio street railways
and electric iuterurban railways, from the
operation of tbe provisions of the Act of
September 3, 6, 1910 (30 Stat, at L. 721,
«hap. 43S), fixing a permanent eight-hour
standard working day for employees er
gaged in the operation of trains upon Inte:
state railway carriers, and temporarily reg-
ulating the wagee of such employees, does
not invalidate tiie act as denying the equal
protection of the laws.
[lid. Note^-Far other cases, sea ConsUtuUiHUtl
Law, Cent. Dls. gi m, 6S0, TD6-T08.]
CotiffFtiirnonAi. Law «=238(2) — Equai.
Pboisctioh of the Ijaw»— Ct-AsainoA-
TiOK— -Bbcuiation of Iktbbbtatb Com-
HXBOB— Restbiction to I^ain-Ofebai-
htq IQiifu>t£s.
3. Singling out employees engaged In
tiie movement of trains, as is done by the
Act of September 3, 6, 1016 (39 Stat, at L.
721, chap. 438), fixing a permanent eight-
hour standard working day for such em<
ployees of interstate railway carriers, and
temporarily regulating their wages, does
not render tbe statute invalid as denying
tbe equal protection of the laws, where
such employees were those concerning whom
alone a dispute as to wages existed, out of
which arose tbe threat of the interruption
of Interstate commerce by a strike, to pr»-
vent which the statute was enacted.
CoKSTiTOTioNAi, Ijaw iS=27a<2)— Dhe Pbo-
CBSe OF l^w— Ahbitbabt Lbo-islatioh—
TTnwobkable St.vtote — Pbebcridiko
Standabd Workday tob Rcilway Bk-
FLOYftS— TXMPOBABY WAQE ItEOTIT.ATIOK.
4. Interstate railway carriers are not
denied the due process of law guaranteed
by U. S. Const. Eth Amend., by the provi-
sions of the Act of S^tember 3, 5, 1910
(39 Stat, at L. 721, ehap. 430), fixing a
permanent eight-hour standard workday for
employees engaged in the operation of trains
upon such railways, creating a commission
to observe during a period of not less than
six nor more than nine months the operS'
tion and effect of such standard workday
and to report its findings to the President
and Congress within, thirty days thereafter,
and forbidding the carriers, pending such
report, and for a period of thirty days
thereafter, to pay such employees for ei^ht
hours' work a wage less than the existing
standard day's wage, with pro rata pay for
all
[8d. Note.— For othar cases, see
Law. Cent. DIE- H at. Ut-Ui.J
[No. 707.J
of Missouri to review a decree which en-
joined the enforcement of a statute fixing
an eight-hour workday for, and temporarily
:%ulatlng the wages of, railway employees
engaged in the operation of trains upon In-
terstate railway carriers. Reversed and r^
mended, with directions to dismiss the bUL
The facts are stated in the opinion.
Solicitor Qeneral Davis, Messrs. Frank
Hagennan, E. Marvin Underwood, and At
tomey General Gregory for appellant.
Mesars. Walker D. Hlnes. John O.
Johnson, and Arthur HlUer for appellees &
■Mr. Chief Justice Wtatte delivered tbe*
opinion of the court:
Was there power In Congress, under tlw
circumstances existing, to deal with tbe
hours of work and wages of railroad em-
ployees engaged In interstate commerce, la
the principal question here to be eonsld^^
IS topic A KBT-NUHBBR la all Ksr-Nombered Dlnsta • Is««b
.A^iOOglC
101«.
WILSON r. NBW.
Its solution, ta w«11 u tliat ol other quM-
tloiu which aiM tj-iat, will be cUrifled by
a brief statement o( tha conditions out of
irtkieh the controTtrij btomi.
Two Bfstcmt MntroIIed in March, 1DI6,
dmeeming wages of railroad emplofees;
«ne, an eight-hour standard of work and
wages with additional pay for overtime,
gOTerning on about 16 per cent of the rail-
roads; the other, a atated mileage task of
100 miles to be performed during ten hours,
with extra paj for any excess, in force on
about 86 per cent of the roads. The or-
ganizations representing the emplojecB of
the railroads In that month made a formal
demand on the employers that, as to all
engaged in the movement of trains, except
paosenger trains, the 100-mlIe task be fixed
for eight hours, provided that it was not
■o done as to lower wages, and provided
H that an extra allowance for overtime, cat-
« onlated hj tha mlnnte at one and one-half
* times the rate of the regulai* hours' service,
be established, nie demand made this
standard obligatory on the railroads, but
optional on the employees, as it left the
right to the employees to retain their ex-
Istiug system on any particular road it they
•lected to do so. The terms of the demand
were as follows, except the one which re-
soled the option, which is in the margin, 1
and others making article 1 applicable to
yard and switching and hostling service.
"Article I. (a) In all road service 100
miles or leu, eight hours or less will con-
stitute a day except in passenger service.
Hlles in ezeess of 100 will be paid lor at
the same rat* per mile.
"(b) On runs of 100 miles or less over-
tine will begin at the expiration of eight
hours.
"(e) On runs erf over 100 miles overtime
will begin when the time on duty exceeds
iha miles run divided by 12) miles per hour.
"(d) All overtime to be computed on the
minute basis and paid for at time and one-
halt Umea the pro rata rate.
"(e) No one shall receive less for elgbt
boors or 100 miles than they now receive
for a minimum day or 100 miles for the
alass of engine used or for service performed.
"(f) Time will be computed eontinuous-
ly from time required for duty until re-
lease from doty and responsibility at end
of day or run."
1 "Article 4. Any rates of pay. Including
^eees mileage or abitrary differentials that
Kra higher, or any mles or conditions of
ontployment contained in individual sched-
ule* in effeet January 1, IBIS, that are more
favoraUe to the tmployees, shall not be
modified or affected by ai^ settl^nent
r«a«hed in connection with these proposala
The gsne '
plo[j^aes I
*Tlia employers refused the demand, and*
the employees, through their organisations,
by concert of action, took the steps to call
a general strike of all railrosd employees
throughout the whole country.
lie President of the United States In-
vited a conference between the parties, lie
proposed arbitration. Hie employers agreed
to it and the employees rejectel it. Tlia
President then suggested the eight-hour
standard of work and wages. Ths employ-
ers rejected this and the employees accepted
it. Before the disagreement ffas resolved
the representatives of the employees abrupt-
ly called a general strike throughout the
whole country, died for an early day. The
President, stating his efforts to relieve the
situation, and pointing out that no re-
sources at law were at hia disposal for com-
puhory arbitration, to save the commercial
disaster, the property injury and the per-
sonal suffering of all, not to aay atarvation,
which would be brought to many among tha
vast body of the people if the strike was
not prevented, asked Congress, Arst, that '
the eight-hour standard of work and wages
be fixed by law, and second, that an otDcial
body be created to observe during a reason-
able time the operation of the legislation,
and that an explicit assurance be given
that if the result of such observation es<
tablisbed such an Increased cost to the em-
ployers as }uitifled an increased rate, tha
power would be given to the Interstate Com<
merce Commies ion to authorize it. Con-
gress responded by enacting the atatuta
whose validity, as wa have said, we are
called upon to consider. Act of September
S, 6, leie, 39 Stat, at L, 721, chap. 436.
The duty to do so arises from the fact that
the employers, unwilling to accept the act,
and challenging de constitutional power of
Congress to enact It, began this typical suit
against the officers of certain labor unions
and the United States District Attorney to
enjoin the enforcement of the statute. Tbeu
law was made to take effect only on the IstJ
of January, 181T. To expedite tlia'ftnal de-'
cisiou before that date, the representatives
of the labor unions were dropped out, agree-
ments essential to hasten were made, and
it was stipulated that, pending the final
disposition of the cause, tha carriers would
keep accounts of the wages which would
have bean earned if tha statute was en-
which Is preferable and advise the officers
of their company. Nothing in the settle-
ment that may be reached on tha above sub-
mitted articles is to ha construed to deprlva
the employees on any railroad from retain-
ing their present rules and accepting sny
rsSes that may be agreed upon or retaining
thcdr present rates and accepting any rule*
that may be agreed upon."
,A_.OOglC
soo
ST 60PKBME COUBT BEPORTES.
OOT. Tmc,
forced M M to enable tb«ir payment if the
Uw mw finally apheld. SUting iu desire
to co-operate with the partiea in their
purpose to eipedits the cause, the court be-
low, briefly annaunclng thai it wae of opin-
icn that Congrest bad no eonstitntional
power to enact the statute, enjoined it* en-
forcement, and, aa the reault of the direct
appeal which followed, we come, after elab-
orate oral and printed arguments, to dia-
poae of the controversy.
All the propoBitiona relied upon and argu-
meote advanced ultimately come to two
qneatione: first, the entire want of consti-
tutional power to deal with the lubjccta
embraced by the atatute, and second, such
abuse ol the power, if possessed, as rendered
Its exercise unconstitutional. We will con-
eider these subjects under distinct propoBi-
tlons separately.
1. The entire want of eoBstltutlonal pow-
mr to deal with the subjects embraced by the
statute.
"Xp dispose of the contentions under this
heading calls at once for a consideration at
the statute, and we reproduce its title and
test BO far as is material.
An Act to Establish an Eight-hour Day for
Emplt^ees of Carriere Engaged in Inter-
state and Foreign Commerce, and for Oth-
er Purpose*.
Be it enacted by the Senate and House of
fiepresentatives of the United States of
America in Congress assembled. That begin-
ning January Srst, nineteen hundred and
•eventecn, eight hours shall, in contraeta for
labor and service, be deemed a day's work
and the measure or standard of a day's
work for the purpose of reckoning the com-
pemsation for services of all employees who
3 are now or may hereafter be employed by
• any common carrier by railroad, except^ail-
roads independently owned and operated
not exceeding one hundred miles in length,
electric street railroads, and electric later-
urban railroads, which is subject to the
provisions of the Act of February fourth,
eighteen hundred and eighty-seven, entitled
"An Act to Regulate Commerce," as amend-
ed, and who are now or may hereafter be
actually engaged in any capacity in the
operation of trains used for the transporta-
tion of persons or property on railroads, ex-
cept railroads independently owned and
operated not exceeding one hundred miles in
length, electric street railroads, and electric
Interurban raJIrosde, . . .
See. 2. That the President shall appoint
a commission of three, which shall observe
the operation and effects of the institution
of the eight-hour standard workday as above
defined s^d the facts and conditions affect-
riers and employees during a period of npt
less than six montha nor more than nine
months. In the discretion of the commission,
and within thirty days thereafter such com-
mission shall report Ita findings to the
President and Congress; . . .
Sec. 3. That pending the report of the
commiasion herein provided for and for a
period of thirty daya thereafter the com-
pensation of railway employeea subject to
this act for a standard eight hour workday
shall not be reduced below the present
standard day's wage, and for all necessary
time in excess of eight hours such employees
shall be paid at a rate not leaa than the
pro rata rata for snch standard eight-hour
Sec. 4. Hat any person violating any
provision of this aet shsll be guilty of ft
misdemeanor and upon conviction shall be
fined not less than (100 and not more than
91,000, or imprisoned not to exceed on*
year, or both.
There must be knowledge of the power eac-
erted before determining whether, as exer-
cised, it was constitutional, and we must
hence settle a dispute on that question befor«M
going further. Only an eight-hour standard A
for work'and wages was provided, is the*
contention on the one side, and, in sul>-
stance, only a scale of wages was provided,
is the argument on the other- We are of
the opinion that both are rl|^t and in a
sense both wrong in so far as it is assumed
that the one ezdudea the other. The pr^
vuion of I 1 that "eight hours shaU . . .
be deemed a day's work and the meaaure or
standard of a day's work" leaves no doubt
about the first proposition. As to the Be<y
ood, this is equally true because of the
provision of g 3, forbidding any lowering
of wages as a result of applying the eight-
hour standard established by § 1 during
the limited period prescribed iu g 2. Both
provisions are equally mandatory. If it be
said that the second, the depriving of all
power to change the wages during the fixed
period, is but ancillary to the first com-
mand, the standard of eight hours, that
would not make the prohibition as to any
change of wages any the less a fixing of
wages. It certainly would not change the
question of power unless It could be a*-
sumed that the legislative power to fix one
thing, the standard of hours, could be en-
forced by exerting the power to do another,
fix the wages, altliough there was no legiela-
live authority to exert the latter power.
The doing of one thing which is authorixed
cannot be made the source of an authority
another thing which there is no pow-
ed to do. If to deprive employer a '
ing the relations between such common ear- ployee of the right to eontract for wagei
,A_^OOglC
ISlC
WILSON T. NKW,
aoi
mad to piorlde tht,t a pftrtleular ntt of
wagM Bhkll b* pmld for ft ipecifled time U
not ft flxinf of wftgea. it b dUBeolt to tee
vfaftt would Im.
However, there U thU very broftd dtffer-
•DM between the two poweri exerted. The
flnt, the eight-hour standard, is permanent-
ly fixed. The second, the fixing of the wage
standard resulting from the prohibition
•gainst paying lower wages. Is expressly
limited to the time specified in | 2. It Is,
therefore, not permanent but temporary,
S leaving the employers and employee! free as
m to *the subject of wages to govern thtlr
relations by their own agreements after the
■pecifled time. Concretely stated, therefore,
the question is this: Did Congress have
power, under the eircumatances stated, that
Is, in dealing with the dispute between the
employers and employees as to wages, to
provide a permanent eight-hour etsndard
and to create by legislative action a stand-
ard of wages to be operative upon the em-
ployers and employees for such reasonshle
time as it deemed necessary to afford nn
opportunity for tlie meeting of the minds
of employers and employees on the subject
of wages! Or, in other words, did it have
the power. In order to prevent the Inter,
mption of Interstate commerce, to exert its
will to supply the absence of a wage scale
resulting from the disagreement as to wages
between the employere and employees, and
to make Its will on that subject controlling
for the limited period provided fori
Coming to the general considerations by
which both subjects must bs controlled, to
simplify the anslysie for the purpose of
eonaldering the question of Inherent power,
we put the question as to the eight-hour
standard entirely out of view, on the ground
that the authority to permanently establish
ft is so clearly suBtsined as to render the
■ubject not diiputable. ■
That common carriers by rail In Inter-
state commerce are within the legislative
power of Congrees to regulate commerce Is
not subject to disputo. ■ It is equally cer-
taiu that where a particular subject is with-
in such authority, the extent of regulation
dspaods on the nature and character of the
subject and what is approprlato to its regu-
§latton.* The powers possessed by govem-
• ment to deal witb'a subject are neither in-
ordinately enlarged or greatly dwarfed he-
• Baltimore A 0. R. Co. v. Interstato Com-
Berca Commission, Z2I U. 0. 612, 65 L. ed.
S78, 31 Sup. Ct. Rep. SBl; Missouri, K. &
T. B. Co. V. United SUtes, 2S1 U. B. 118,
« L. ed. 144, 34 Sup. Ct. Rqt. 20.
• United States ex rel. Atty. GesL v. Dela-
ware t H. Co. 213 U. S. 30S, £3 U od. 830,
£0 Sup. Ct. Hep. B27.
«irCulloch V. Maryland, i Wheat 316,
cause the power to r^nlato intorstato eom-
merea appllea. Thla Is illustratad by tba
difference between the much greater power
of regulation which may be exerted as to
liquor and that which may be exercised as
to flour, dry-goods, and other commodities.
It ia sbown by (be settled doctrine sustain-
ing ths right by regulation absolutely to
prohibit lottery tickets, and by the obvious
consideration that such right to prohibit
could not be applied to pig iron, steel rails,
or most of the vast body of eommoditJes.
What was the extent of the power, there-
fore, of Congress to rt^Iate, considering
the scopo of regulation which government
had the right to exert with reference to
Interstato commerce carriers, when it came
to exercise its legislative authority to regit-
Isto commerce, la the matter to bis decided.
That the business of common carriers by
rail is in a aenaa ft public business because
of the intorest of society in the continued
operation and rightful conduct of such busi-
ness, and that the public interest begets a
public right of regulation to the full extent
necessary to seeore and protect It, Is settled
by so many decisions, stato and Federal,
and is illustrated by such a continuous ex-
ertion of stato and Federal legislative pow-
er, as to leave no room for question on ths
subject. It la also equally true that as the
right to fix by agreement between the car-
rier and its employees a standard of wages
to control their relations is primarily pri-
vate, the establishment and giving effect to
such agreed-on stondard Is not subject to
b* controlled or prevented by public author-
ity. But, taking all these propositions aa
undoubted, if the situation which we bava
described and with which the act of Con-
gresa dealt be taken into view, — that la,
the disputo between the employers and em-
ployees aa to a standard of wages, their
failure to agree, the resnlting absence of
such stondard, tbs entire Interruption of*
interstato commerce which was threatened,^
•and the Inflnito injury to the public Interest*
which was imminent, — It would seem Inevi-
tably to result that the power to regulato
necesinrity obtoioed and was subject to be
applied to the extent necessary to provide
a remedy for the situation, which included
the power to deal with the disputo, to pro-
vide by appropriate action for a standard
of wages to fill ths want of one caused by
421-423, 4 L. ed, 679, 605; Interstoto Com-
merce Commission v. Brinson, 154 U. B.
447, 472, SB L. ed. 1047, 1055, 4 Inters. Com.
Rep. 646, 14 Sup. Ct Rep. 1126; LoUeiy
Case (Champion v. Ames) 1S8 U. B. 321,
47 L. ed. 492, 23 Sup. Ct Rep. 321, 13 Am.
Crim. Rep. 601; (Aark Distilling Co. v.
Weatem Maryland R. Co. 242 U. & Sll,
61 L. ed. 326. 37 Sup. Ct. Rep. 180.
A^iOOglC
am
17 8UPBBMX COUBT KEPORTEB.
Oor. 1
Uie fftflnrB to exert the prirkta right on the
■nbjeet, rad to glTO effect bj apprt^ri^ta
l^iBlfttion to the r^ulatioiiB thus adopted.
nUe moat b« imleaa it can ba aaid that the
rlgbt to ao regulate aa b> aare and protect
the public intereat did not apply to a caae
where the destruction of the public right
«aa Imminent aa the reault of a dispute
betweeo the psxtiea and their conaequent
failure to eatablieh bj prirate agreement
the ataadard of wagea which waa eaeentlal i
in other worda, that the exiatenca of the
public right and the public power to pre-
•erve it waa wholly under the control of
the private right to eatablish a standard bj
agreement. Nor ia it an answer to this view
to suggest that the situation was one of
emergeney, and that emergency cannot be
made the aourca of power. Ex parte Milli-
gan, 4 WalL 2, 18 L. ed. 281. The propoei-
tion begs the question, since although an
emergeni^ m^ not call into life a power
which has never lived, nevertheleaa emer-
gency ma7 afford a reason for the exertion
of a living power already enjoyed. If acta
which, if done, would interrupt, if not de-
stroy, interstate commerce, ma; be bj an-
ticipation legislatively prevented, by the
■ame token the power to regulate may be
exercised to guard againet the cessation of
interstate commerce, threatened bj a failure
of employers and employees to agree aa to
th* standard of wages, such standard being
an essential prerequisite to the untnter*
rupted flow of Interstate commerce.
But, passing this, let us come to briefly
recapitulate aome ot the more important
a of the regulations which have been enacted
n in the past ia order to show how neeeesarlly
* the 'exertion of the power to enact them
manlfcsta the eristence of the legislative
authority to ordain the regulation now be-
fore us, and how completely the whole sys-
tem of regulations adopted in the put
would be frustrated or Tendered unavailing
if the power to regulate under the condi-
tions stated, which waa exerted by the a«t
before ua, was not possessed. That regula-
tion gives the authority to Hx for interstate
carriage a reasonable rate, subject to the
limitation that rights of private property
may not be destroyed by establishing them
on a confiscatory basis, is settled by long
practice and decisions. * That the power
to regulate also extends to many phases of
the business of carriage, and embraces the
right to control the contract power of the
carrier In ao far as the public interest re-
quires such limitation, baa also been mani-
fested by repeated acta of l^slation as to
bills of lading, tariffs, and many other
things too numerous to mention. < Equally
certain is it that the power baa been exer-
cised so as to deal not only with the oar-
rier, but with its servants, and to regulate
the relation of such aervanta not only with
their employers, but between themselves. 1
lUustratione of the latter are afforded by
the Hours of Service Act, the Safety Ap-o
plionce Act, and the Employers' LiabilityS
Act. Cleor'also is it that an obligation*
rests upon a carrier to carry on its buai*
ness, and that condittona of coat or other
obstacles afford no excuse and exempt from
no responsibility which arises from ft fail-
ure to do so, and also that government pos-
sesses the full regulatory power to compel
performance of such duty. ■
In the presence of this vast body of ac-
knowledged powers there would seem to be
no ground for disputing the power whieh
waa exercised in the act which is before
UB so as to prescribe by law for the ab-
sence of a standard ot wages, caused by the
failure to exerciae the private right aa a
result of the dispute between the parties,
• Chicago, B. ft Q. E. Co. v. Iowa (Chl-
oago, B. ft Q. H. Co. v. CutU} 94 U. S.
165, 161, 24 L. ed. 94, 9S; Stone v. Farmers'
Loan ft T. Co. 116 U. S. 307, 29 1.. ed. 636,
S Sup. Ct Rep. 394, 388, llSl; Interstato
Commerce Commission v. Chicago, R. 1. ft
P. R. Co. 218 U. S. Sa, 64 L. ed. 946, 80
Bup. Ct. Rep. 661; Minnesota Rate Cases
(Simpson V. 8hepard) 230 U. 8. 3S2, 57
U ed. 1511, 48 L.RA.[N.8.) 1161, 33 Bup.
Ct. Rep. 729, Ann. Cas. 19ieA, 18.
< New York, N. H. ft H. R. Co. ». Inter-
state Commerce Commission, 200 U. S. SSI,
60 L. ed. 610, SO Sup. Ct. Rep. 272; Atlantic
CoaHt Line R. Co. v. Riverside Mills, 219
tl. S. 186, 6S L. ed. 1Q7, 81 L.RA.(N,B.)
7, 81 Sup. Ct Rep. 184; Texas ft P. R. Co.
V. Abilene Cotton Oil Co. 204 U. S. 426,
Gl L. ed. 653, 27 Sup. Ct. Rep. 350, S Ann.
Cas. 1075; Adama Exp. Co. v. Croninger,
226 U. S. 491, 67 L. ed. S14, 44 L.RA.(N.8.)
" - "■ " -- - . - M. R.
, 868,
L.R.A.1S16B, 460, 34 Sup. Ct Rep. 526,
Ann. Caa. 191GD, 693.
1 JobnsoD V. Southern P. Co. 196 U. S. 1,
49 L. ed. 363, 26 Sup. Ct Rep. 168, 17 Am.
N^. Rep. 412; Employers' Liability Cases
(Howard v. niinois C. R. Co.) 207 U. 8.
463, 62 L. ed. 297, E8 Sup. Ct Bep. 141;
Baltimore ft 0. R. Co. v. Interstate Com*
merce CommissiiKi, 221 U. B. 612, 66 L. ed.
878, 31 Sup. Ct. Rep. 621; Southern ». Co.
V. United States, 222 U. S. 20, 66 L. ed. 72,
32 8up. Ct Rep. 2, 3 N. C. C. A. 822;
Second Employer's Liability Cases (Mondon
V. New York, N. H. ft H. R. Co.) 223 U.
8. 1. 66 L. ed. 327, 38 L.RJ„{N.S.) 44, 32
Sup. Ct Eop. 160, 1 N. C. C. A. 875.
• Atlantic Coast Line R. Co. v. North
Carolina Corp, Commission, 206 U. 8. 1, 26,
51 L. ed. 933, 046, 27 Sup. Ct Rep. 685, 11
Ann. Cas. 8S8; Missouri P. R. Co. v. Eansaa,
216 U. 8. 262, 278, fi4 L. ed. 472, 479, 80
Sup. Ct Bep. S30,
.A^iOO^le
uie
WILSON T. HBW.
-4hat ta, to exert tin leglshtlTe will for
tbe pnrpoM of lettlliig the dlipnte, Mid
Und both partlea to the dnt^ irf aceept-
vi^ and compliance, to the end that no
Individual dlepnts or difference night bring
min to the vaet Interaiti concenied In the
moTRment of intentate commerce, for the
■cprcM purpose of protecting and preeerr-
ing whidi Uie plenary l^ilatire anthoritj
granted to Congress waa repoud. Tbii re-
mit Ii further demonitrated, aa we have
■nggeited, by eonaldertng how completely
the purpow Intended to be aeoompliehed hy
the regulationa which have been adopted
In the paet would be rendered unavailing
or their enactment Inexplicable if the power
waa not poMeised to meet a eitnation like
the one with which the lUtuU dealt. Wbat
would be the value of the right to a reoaou-
able rate if all movement in interatate com-
merce could be atopped aa a reanit of a
mere dieputa between the partiei or their
failure to exert a primary private right
eoncemiog a matter of Interatatc conunerceT
Again, what purpoae would be nibserved by
all the regulationa eatabllehed to aeonre
^tha enjoyment by the public of an efflcient
gaud reasonable eervlce If there waa no power
■ la government to prevMit'all aerrica from
being destroyed! Further yet, what beneflte
would flow to society by recognizing the
right, beeaoie of the public Interest, to regu-
late the relation ol employer and employee
and of the employeea among themaelves, and
to give to the lattar peculiar and special
righta aafegnardlng llielr parions, protect-
ing them in ease of accident, and giving
efficient remediee for that purpoae, If there
was no power to remedy a aituation created
hy a diapute between employera and employ-
eea aa to rate of wagea^ which. If not reme-
died, would leave the public helpless, the
whole people ruined, and all the homes of
the land aubmitted to a danger of the moat
•arioiu characterT And finally, to wliat
derlaion would H not reduce the proposition
that government had power to enforce the
duty of operation If that power did not ex-
toid to doing that whieh was essential to
prevent operation from being completely
■topped by filling the Interregnum created
Ify an absence of a conventional standard
at wagea, because of a diapute .on that sub-
ject between the employers and employeea,
by a legislative standard binding on em-
plt^era and employeea for such a time as
might be deemed by the legislature reason-
ably adequate to enable normal conditions
to come about aa the reault of agreementa
M to wages batweai the parUesI
We are of opinion that the reaaoaa atated
emetnsive^ eatabliah that, from the point of
view of inherent powor, ths aet which la
before na waa elMTly within the l^ilative
power of Congress to adopt, and that, In
substance and effect, It amounted to an ex-
ertion of its authority under the circum-
stances disclosed to compnlaorily arbltrata
the dispute between the parties by eatab-
llshiug as to the subject matter of that
dispute a legislative standard of wages oper-
ative and binding aa a matter of law upon
the partlee, — a power none the leaa effica-
ciously exerted becanae exercised by direct
legislative act inatead of by the enactmentn
of other and appropriate meana providing jj
for'the bringing about of such result. If*
it be conceded that the power to enact the
statnta was In effect the exercise of the right
to Sz wages where, by reason of the dispute,
there had been a (allure to fix by agreement,
it would simply serve to show the nature
and character of the regulation essential to
protect the pnbtlo right and safeguard tbe
movement of interstate commerce, not In-
volving any denial «f the anthority to adopt
it.
And this leavea only to be generally con-
sidered whether the right to exercise nioh
a power under the condiUona which existed
waa limited or rsstrained by the private
rights of the carrioa or their employeea.
(a) Aa to the earrler. — Aa ogaglng In
the business of interstate commerce carriaca
subjects ths carrier to the lawful power of
Congress to rqinlata Irreepective of the
source whence the earrler drawa its exist-
enee, and as also, by enga^g in a buaineaa
charged with a public InUraat, all the vast
property and every right of the carrier be*
come subjaot to the authority to regulata
poeaessed by Congress to ths extent that
regulatiMi may be exerted, considering the
aubject r(^1at«d and what Is appropriate
and relevant thereto, it followa that the very
abeenee of the aeale of wages by agreement,
and ths Impediment and deatruetion of in-
terstatw commerce which waa threatsned.
called for the appropriate and relevant
TOnedy, — the creation of a standard by oper-
ation of law, binding upon the carrier.
(b) Aa to the employee. — Here again It
ia obvioua that what we have previously
said Is applicable and deciaive, since what-
ever would he the right of an employee en-
gaged in a private buaineaa to demand anah
wagea aa he desires, to leave the employment
if he does not get them, and, by concert of
aetitai, to agree wtUt others to leave npon
tiie same condition, such rights are aecea-
aarily aubject to limitation when employ-
ment is accepted in a business charged with
a public interest and as to which the power^
to regulate commerce posseased by Congress J{
applied, and ths'rssulting right to fix. In*
cass of disagreement and dispute, a standard
,A_.OOglC
n SUPREMK COUET RBPOKTEH.
Oat. TwtM,
tt wkgM, M wi km Men, iiMMurilr ob-
Ulaad.
In other xrordE, eonBlderlng eomprehen-
■Ivelf tbe situatioii of the employer and the
employee Id tbe light of the obligations ■J'Ib-
Ing from the public interest end of the work
in which they are engaged, and the degree
of regulation nhich ma; be lawfully exerted
bj Congreu as to that buBineBs, [t muat
follow that the eierciBC of the lawful govern-
mental right ie controlling. This reaulta
from the considerations which we have pre-
viously pointed ont end which we repeat,
■Ine^ eoncodlug that, from the point of view
of the private right and private lutereat, as
atmtradiitlnguiihed from the public interest,
tlie power eiista between the parties, the
employers and employees, to agree a* to a
standard of wages free from legislative in-
tcrferenee, that right in no way alTecti tbt;
lawmalilng power to protect the publie light
and ereate a standard of wages resulting
from a dispute ae to wages and • failure
therefore to establish by consent a standard.
The capacity to exercise the private right
free from l^slativa interference affords no
ground for eaying that legialatiTe power
does not exist to protect the public interest
from the injury resulting from a failure to
exercise the private right In saying thia,
of courae, it is always to be borne In mind
that, as to both carrier and employee, the
benelicent and ever-present aaieguarda of
the Conatitution are applicable, and there-
fore l>oth are protected agaumi eonliscation
and against every act of arbitrary power
wliioh. If given effect to, would amount
to a denial of due process, or would be re-
pugnant to any other constitutional right.
And thia emphaalEes that there Is no ques-
tion here of purely private right, eince the
law is concerned only with those who are
engaged In a business charged witb a pub-
lic interest, where the aubjeet dealt with as
to all the parties is one involved In that
« business, and which we have seen comes
g under the control of the right to regulate
* t« the extent that the power*to do so is ap-
propriate or relevant to the busineas regu-
lated.
Having thus adversely disposed of the con-
tentione aa to the Inherent want of power,
we come to consider all the other propo-
■Itiona which group themaelvee under a com-
mon heading; that is:
II. Such an abuse of the power. If pos-
sessed, as rendered ita azereiae unconstitn-
We Shalt consider the various contentions
which come under this heading under sep-
arate subdl^ions.
(a) Equal protection of (he laws and
panalties.
The want tt equality la baaed npm two
eonaideratlono. The one is the exemption of
certain short line and electric railroads.
We diamiss It Iiecause it has been adversely
disposed of by many prevlons declaiona.*
The second reete upon the charge that un-
lawful inequality results because the stat-
ute deals not with all, but only witli the
wagea of employeea engaged In the movement
of traina. But such employees were those
concerning whom the dispute as to wages
existed, growing ont of which the threat of
interruption of intoratate commerce aroBe,-^
a consideration which establishes an ade-
quate basis for the statutory claasiQcation.
As to the penalties, it sufBcea to say that
in this case a recovery of penalties Is not
aslced, and conaequently the subject may
well he postponed until it actually arises foig
decision. IB 8
*(bl Want of due process resulting from*
the improvidence with which the statute
was enacted and the impossildlity in prac-
tice of giving effect to Its provisions; in
other words, as stated in the argument, ita
"un workability."
Tbe contention virtually is that, conced-
ing the legislative power under the oircum-
stances stated to fix a standard of wages,
such authority neceesarily contemplates con-
sideration before action, and not a total and
obvious disregard of every right of the em-
ployer and hia property, — a want of con-
sideration and a disregard which. It la
urged, appear on the face of tbe statute,
and which cause It therefore to amount to a
decision without a hearing, and to a mere
arbitrary bestowal of millions by way of
wages upon employees, to the injury not
only of the employer, but of the public, upon
2ig U. S. 463, GS L. ed. 290, 31
Sup. Ct Kep. 276; Omaha A C. B. Street
B. Co. V. Interstate Commerce Commissioa,
230 U. S. 324, 67 L. ed. ISOl, 46 L.RA.
(N.S.) 385, 33 Bup. Ct. Hep. 890; Ghesar
pealce k O. R. Co. v. Conley, 230 U. 8. 613,
622-624, 61 L. ed. 1697, 1003, 16Q4, 33 Sup.
Ct Rep. 685; St Louis, I. M. jt S. R. Co.
V. Arkansas, 240 U. 8. 618, 60 I* ed. 770,
30 Sup. Ct. Rep. 443.
10 Lfnited BUtes ex rel. Atty. Gen. v. Dels-
ware ft H. Co. 213 U. G. 366, 417, 53 L. ed.
830, 862, 29 8np. Ct. Rep. 627; Qrenada
Lumber Co. v. Miasiasippi, 217 U. 8. 433,
U. 8. 114, 120, 64 L. ed. 688, 692, 30' Sup.
Ct Rep. 490; Western U. Teleg. Co. v. Rich-
mond, 224 U. 8. 100, 172, GO L. ed. 71D,
717, 32 Sup. Ct Rep. 449; Chesapealce k 0.
E. Co. V. ConlCT, 230 U. 6. 613, 622, 67 U
ed. 1S97, lOaa, U Sop. Ct 98S.
A^iOOglC
1S16.
WILSON f. mm.
xw
whom tha bnrdsn mut occMsarily fs)l.
Upon the aunmption thkt vnconitltutional-
it; would reault if there be ground lor ths
propodtioni,!! let m teat them. In the first
place, M we have aeen, there is no room for
question thkt it waa the diapnte between
the parties, their failure to agjee aa to
wagei, and the threatened diaruption of In-
terBtate commerce, c&uaed bj that diapute,
which was the aubject which called for the
exertion of the power to regulate eonuneree,
and which wa« dealt with \iy the exertion
of that power which followed. In the eecond
place, all tha contentiona aa to want of con-
eideration anataining the action talien are
diapoied of by the hiatory wa have given of
tha eventa out of which the eoDtrovers;
grew, the publia nature of the diapute, the
interpoaition of the Presideut, the call by
him apon CoDgreaa for action, in conjunc-
tion with the action taken, — ail demonstrat-
ing not unwitting action or a failure to
eonaider, wliateTer may be the room, if any,
fill a divergence of opinion aa to the want
•f wladom shown by the action taken,
g But to bring the subject to a closer an-
• alyiia, let ua briefly^ecall the situation, the
eonditione dealt with, and the terms of the
ttatute. What waa the demand made b;
tha employeest A permanent agreement as
to wages by which the period should be
■hortened in which the fixed mileage task
previouely ocisting ahoald be performed, and
an allowance to be made of extra pay bj
tlie minute at one and one-halt times the
r^ular pay for any overtime required to
perform the task if it was not done In the
reduced time, with a condition that no re-
duction In wages should occur from putting
the demands into effect, anil also that, in
that event, their operation ehoutd be bind-
ing upon the employers and optional on the
•mployecB. What waa Uie real disputel
no emplojers insisted that this largely in-
creased the pay, because the allotted task
would not he performed In the new and
shorter time, and a large increase for over-
Ume would result The employees, on tlie
other hand, insisted that, as the task would
be unehanged and would be performed in
the shorter hours, there would be no ma-
terial, or, at all ereuta, no inordinate, in-
crease of pay. What did the statute do In
settling these dlSereneest It permanently
applied an eight-hour standard for work and
wages which existed and had been in prac-
tice on about 16 per cent of the railroads.
It did not fix the amount of the task to be
done during those hours, thus leaving that
to the will of the parties. It yielded In
UMcCray t. United SUtes, IBS U. 8. 27,
S3, 4B L. ed. 78. SB, £4 Sup. Ct Bep. 700.
1 Ami. Cas. Ml.
37 S. C— 20.
part to the objections of the empl<7ers bj
permitting overtime only if "necessary," and
it also absolutely rejected, in favor of the
employers and against the employees, the
demand for an increased rate of pay dur-
ing overtime, It there was any, and confined
it to the r^iular rata, and it moreover re-
jected the option in favor of the employees
by making the law obligatory upon both
parties. In addition, fay the provision pro-
hibiting a lower rate of wages under the
new system than was previously paid, it
fixed the wages for such period. But thla
was not a permanent fixing, but, in the*,
nature of things, a temporary one whleh^g
left the wi11*of the employers and employees*
to control at the end of the period, U
their dispute had then ceased.
Considering the extreme contentions re-
lied upon in the light of this situation, wc
can discover no basis upon which they may
rest. It certainly is not aS'orded because
of the establishment of the eight-hour stand-
ard, since that standard was existing, as we
have said, on about IS per cent of the rail-
roads, had already been established by act
of Congress as a basis for work on govern-
ment contracts, and bad been upheld by this
court In sustaining state legislation. U It
certainly cannot be said that the act took
away from the parties, employers and em-
ployees, their private right to contract on
the subject of a scale of wages, since the
power which the act exerted was only exer-
cised because of the failure of the parties to
agree, and the resulting necessity for the
lawmaking will to supply the standard ren-
dered necessaiT by such failure of the par-
ties to exercise their private right. Further,
in view of the provisions of the act nar-
rowing and limiting the demanda made, the
statute certainly affords no ground for the
proposition that it arbitrarily emsidered
only one side of the dispute, to the absolute
and total disrq^ard of the rights of the oth-
er, since it is impossible to state the modi-
fications which the statute made ot the
demanda without, by the very worda of the
statement, manifesting that there was an
exertion of legislative discretion and Judg*
ment in acting upon the dispute between the
parties. How can this demonstration fail
to result if it be stated that the scops of
M United States v. Msrtin, 94 U. 8. 400,
24 L. ed. 128; Holden v. Hardy, 169 U. 8.
36a, 42 L. ed. 780, 18 Sup. Ct. Rep. 883;
Ellis v. United States, 200 U. S. 846, 61
L. ed. 1047, 27 Sup. Ct Hep. 600, 11 Ann.
CsB. 689; United SUtea v. Qarbish, 222 U.
628, L.II.A. 1015P, 829, 36 Sup, Ct Rep.
S4£; Bosley v. McLaughlin, 230 U. 8. 886,
SB L. ed. 632, 86 Sup. Ct Rep. 346.
A^^OO^IC
37 SUPREME COURT EEFORTEB.
Oct. Teuc,
the tABk to be perfoTmed in the eight-hour
period vu not espreased, but vaa left,
therefore, to adjuatmrait between the par-
gtiesi that overtime naa oqI; permitted if
t> "neoesMtrj;" and thftt extra pay for'over-
time was rejected and regular rate of pay
■ubstitutedt
Conceding that there would ueceesarily
result from the enforcement of the statuto
an iDcrease of pay during the period for
which the statute forbade a reduction, such
concession would not bring the statute with-
in the grounds atated. The right to meet
the situation caused by the dispute and to
fix a Btandard which should be binding upon
both parties included, of conrse, the legisla-
tive authority to take into consideration
the elements of difference, and, in giving
heed to them all, to express such legislative
judgment as was deemed beat under the
circumstances.
From this it also follows that there is no
foundation for the proposition that arbi-
trary action in total disrc^rd of the pri-
vate rights concerned was taken, becaus«
the right to change or lowar the wages was
left to be provided lor by agreement between
the parties after a reasonable period which
the statute fixed. This must be unless It
can b« said that to afford an opportunity
for the exertion of the private right of
agreement as to the standard of wages waa
In conflict with such right.
When it Is considered that no contention
is made that, in any view, the enforcement
of the act would result In conflscation, the
misconception npoa which all the proposi-
tions proceed becomes apparent. Indeed,
in seeking to test the arguments by which
the propositions are sought to be supported
we are of opinion that it is evident that in
substance they assert not that no legislative
judgment was exercised, but that, in en-
acting the statute, there waa an unwise
^ertion of legislative power, begotten
either from some misconception or aome
mistakai economic view, or partiality for
the rights of one disputant over the other,
or some unstated motive which should not
have been permitted to influence action.
But to stats such considerations Is to state
S also the entire want of judicial power to
■ consider them, — a view which therefore has
excluded them absolutely from our mind,
and which impels us as a duty to say that
we have not in the slightest degree passed
upon them. While It Is a truism to say
that the duty to enforce the Constitution is
paramount and abiding, it is also true that
Uie very highest of judicial duties Is to
give effect to the legislative will, and In
doing so to scrupulously abstain from per-
mitting subjects which are exclusively with-
in the field of legislative discretion to In-
fluence ou; opinion or to control judgmeat.
Finally, ws say that the contention that
the act was void and could not be mads
operative because of the unworkability of
Its provisions is without merit, since we see
no reason to doubt that if the standard fixed
by the act were made applicable and a can<
did effort followed to carry it out, the result
would be without difficulty accomplished.
It is true that it might follow that in some
casta, because of particular terms of em<
ployment or exceptional surroundings, som*
change might 1m necessary, but these ex-
ceptions afford DO ground for holding the
act void because its provisions are not sna-
ceptible In practice of being carried out.
Being of the opinion tbat CoDgress bad
the power to adopt the act in question,
whether it be viewed as a direct fixing of
wages to meet the absence of a standard
on that subject, resulting from the dispute
between the parties, or as the exertion by
CongrssB of the power which it undoubtedly
possessed to provide by appropriate legisl»'
tion for compulsory arbitration, — a power
which inevitably resulted from ita author-
ity to protect interstate commerce in deal-
ing with a situation like tbat which waa
before it, — we conclude that the oourt below
erred in holding the statute was not within
the power of Cfmgnaa to eoact, and In ra-
strainiug its enforcement, and Its deereo,
therefore, must b« and it la reversed and
the cause remanded, with direcUons to dl»
miss the bill.
And it is BO ordered. a
* Mr. Justice McKenna, concnrrlngt *
It is the contention of the government
that the act is an bours-of-SBrviee law, the
intent of Cimgresa being by Its enactment
"to proclaim a substantial eight-hour day.*
The opposing contention is that "the lan-
guage of the act shows that it deals solely
with the construction of ocmtracta and with
the standard and amount of compensation,
and not with any limitation upon tha hours
Upon these (^poring contentions the par-
ties respectively assert and deny the power
of Congress to enact the law. The gor<
emment, however, further contends tha^
even viewing the law as a wage law. Con-
gress, under Uie commerce clause, had power
to pass it.
My purpose is to deal wiUi tbe meaning
of the act. With the consideration ol the
power to pass it, I am satisfied with the
The title of the act (and to the title of
an act we may resort to resolve ambigui^
or to confirm its words) axpresaes its pur-
pose to be "to establish an aight-hour day
for enq)loy«es of oaniera engaged in inter-
,A_^OOglC
ISlC
WIU30N T, mew.
SD7
*tat« wid fDrdgn ecnnmcrMt tai for other
pnrpoMa."
Tha descriptiptt of th« Utl« wia rftpa^ted
tn the EouM of Hepreaentatives by the
cbainnaD «f tha eommittea who reportad the
hill and from whom It haa leoeivad Ita deiig-
nation. Among athor thingi, he aaid ; "He
law flzea an rfght-honr da;. We had pre-
Tioualjr a aixteen-bour day and a nine-hour
da;. W« now have an eight-hour daj. The
only refsrence to wagsa ia in the language
naed to hold In statu quo until Uie work-
inga of the eight-hour law oould be obaerved
and all other featurea of the aerTlM ad-
juated to the eight-hour law." E^lanationi
of like impart wera made in the Senate.
Hie worda of tha act, I think, inpport
thia characterization, and, it may be ai-
^ anmed, were accepted by Congreaa aa ez-
gpreeaing and aecuring it; and I think they
• do ao wiUi'falr diraotneas. Whatever In-
Tolution Utere may be in than waa caused
by the aituation to whioh they were ad-
dreaaed, derangement of whioh waa aought
to be avoided; tha aituation indeed made
nae ot "IcAturea of the aerrloa adjnated" to
tlie Uw.
The proTlsloit of | 1 la: "That, begin-
mii^ January flrat, ninetean hundred and
•eventeen, eight houra ahati. In contracts
for labw and aervice, be deemed a day's
wwk and the measure or atandard of a
day's work for the purpoae ot reckoning the
ecmpenaation for serrices of all employees
who are now or may hereaftarba employed
by any common carrier by railroad, except
Nothing is fixed but the time of service,
^the houra which shall be deemed a day's
work, — the number to be eight. All else—
eompenaation and conditione — ia left to oon-
tract; (mly, whatarai the eompenaation, it
ahall be tor a aerviea of eight hours reck-
oned I computed) or measured by lueh time
aa ita determining factor, £^cept aa ao
determined the eompenaation may ba what-
ever the carriera and employeea may agree
upon. Their power of convention has no
ftther limitation.
The diatinction between what ta left to
tbe parties and what ia fixed by the law ia
reaL There la certainly a difference be-
tween the preaeription of tha time of service
and tha preaeription of compensation for
the aervice, and the difference is observed
In the speech and conduct of men; It ia ob-
a^red in the regulationa ot legislation.
It haa never been supposed that the agita-
tion for an eight-hour day for labor, or ^e
legislation which haa reaponded to it, waa
Intended to fix or did fix tke rate ot wagea
to be paid.
Of course, in a aenae, the two thlnga are
related. The time of aerviea and tka price
of service may be aidd to b« the rectprocala
of each other, — each the price of the other.
There can be no real eatimste of the wagea^
one receivea nntll it is understood whatS
time one haa worked to recetTe'them. They*
rise and fall with the increaae or decrease
of the time of service. One who works ten
houra a day for t5 may be said to get less
than one who worka eight houn for the
same sum. The labor of the latter la ot
greater value to him than the labor of the
tan-hour man la to him. And, correspond-
ingly, the expense to the employer Is greater
in the one case than in the other, though
the wagea he pays, expreased In terma of
mon^, are the same. It may be contended
that there la no element, therefore, in tha
reflation of the price ot labor that there
is not in the regulation of the hours of
labor. But, aa I have said, In the practice
of men and in the examples of legislation,
regulation of one ia not regarded as tha
regulation of the other. In certain hazard-
ous empl<^menta the hours of labor have
been preaoribed. It haa not been supposed,
certainly not declared, that the power aa
exerted was the regulation of wages. The
interest of the state haa been assumed to
terminate with the houra of aervice, and ita
compensation, therefore, haa been left to the
agreement of the partiea.
Aa examplea of legislation I may adduce
Holdeo V. Hardy, 109 U. S. 366, 42 L. ed.
780, IS 6up. Ot. Sep. 383, where a atata
law waa suatalned, and Baltimore & O. R.
Co. V. Interstate Commerce Commlslon, 221
U. 8. 612, 66 L. ed. ST8, 31 Sup. Ct. Rep.
621, where a law of Congress was sustained.
Both laws limited the hours ol service, but
neither the rate ot wagea. There may ba
also cited EIIU v. United States, 206 U. S.
24B, 61 L. ad. 1H7, 27 Sup. Ct. S^. 000,
11 Ann. Caa, 680; Muller v. Oregon, 208
U. 8. 412, 02 L. ed. 651, 28 Sup. Ct. Rep.
324, 13 Ann. Caa. 067; Bosley v. McLaugh-
lin, 236 U. S. 885, 69 L. ed. 032, 35 Sup.
Ct. Bep. S4&; Miller v. Wilson, 230 U. 8.
3T8, 69 L. ed. 028, L..RJL1&16F, 82B, 36 Sup.
Ct. Rep. 342.
It may be contended that the power that
can limit the houra of aervice can fix tha
wagea for the service. To thia I shall prea-
ently refer. My Immediate purpose ia the
Interpretation of the law under review, and
1 have only to point out that It Is the sense
of the practical world that prescribing the
hours of labor la not prescribing the wagea
of labor, and Congreaa haa kept the pur-j,
poaee diatinct. g
* I do not think that other provisiona ot the*
aet militate against these viewa. SecUoii
2 provldea for the appointment of a eom-
mlsaion to obaerve the operation of the law,
and thia for the rea»«Hi I have exoreaaed ot
,A_^OOglC
t7 SUPREME CODKT KBFOBTER.
Oot. Tmat,
the dependence of the txitt of the ftervlcea
upon the time they are rendered. The
shorter hoiiri mftv or mti.J not involve an
increftBe of oxpense to the roads, and ma^
or vi»j not require recompense by an in-
crease of their rates.
Pending the report of the commission, and
for thirtj dajs thereafter, it is provided
a 3) that compensation shall not be re-
duced tielow the present standard day's
wage, and for all neccasarj time in excess
of eight hours emplojees elhall be paid at
a rate not less than the pro rata rats for
such standard eight-hour workdaj.
In a sense, this ma; be considered a* a
prescription of wages. To those roads (85
per cent] that have a ten-hour standard
the provision, so far as applicable, maj be
■aid to be a change of compensation. To
those {IS per cent) having an eight-hour
standard it is not a change. The effort of
the law is to secure an eight-hour day serv-
ice and the "penalty of payment for over-
time service," to quota the government's
brief, "is imposed in order to enforce obedi-
ence to the eight- hour provision, as far as
practicable."
But even if g 3 be given a broader effect.
It would not give character to the whole act
and make it the exertion of power to estab-
lish permanently a rate of wages. To so
consider it would, I think, be contrary to
the intention of Congress, and convert the
expediency for a particular oceasion and
condition into the rule for all occasions and
conditions.
So far as the fate of the pending appeal
is concerned, it is not of much importance
whether the act be held to be an honra-of-
•ervice law or a wage-regulating law; but
one may be regarded as having conse-
quences that the other has not. To a car-
« rier a wage law is but an item in its ae-
H counts, and requiring, it may be, an adjust-
* ment of its* operations, the expense to be
recompensed through its rates. If It be
■aid Uiat rates cannot be changed at will,
but only by pennUsion of authority, I can-
not think that permission will not be given
if it be necessary to fulfil the command of
the law. Indeed, If not given, the law might
encounter constitutional restriction.
To an employee a wage law may be of
more vital consequence, — be of the very
essence of his life, — involving factors, many
and various, which he alone can know and
estimate, and which, besides, might not have
an enduring constancy and be submissive to
a precedent judgment. There well might be
hesitation to displace him and substitute
the determination of the law for hie action.
1 speak only of intention; of the power I
have no doubt. When one enters into inter-
state commerce, one «ntas Into a eerTice
in which the pnbtle has an Interest, and
subjects one's self to its behests. And thia
is no limitation of liberty; It Is the conse-
quence of liberty exercised, the obligation of
his undertaking, and constrains no more
than any contract constrains. The obliga-
tion of a contract is the law under which
It is made, and submission to regulation is
the condition which attaches to one who
enters into or aoeepts employment in a bn^-
ness In which the public has an interest.
I concur in the answer of the opinion
to the contentions of inequality of the law
and the deprivation to the carriers tA due
Mr. Justice Day. dissenting)
I am unable to agree vrith the opinion
and judgment just pronounced. The very
serious constitutional questions involved
seem to warrant a statement of the reasons
which constrain me to this action.
I am not prepared to deny to Congreai,B
in view of Its constitutional auUiority ta%
regulate commerce among the* states, the*
right to fix by lawful enactment the wages
to be paid to those engaged in such com*
merce in the operation of trains carrying
passengers and freight. While the railroads
of the country are privately owned, they
are engaged in a public service, and because
of that fact are subject in a large measurs
to governmental oontrol.
The regulatory power of Congress under
the commerce clause of the Constitution is
of a broad nature, but is subject to the iqi-
plicable limitations of the Constitution.
I agree that upon the reasoning which
sustained the power of Congress to regnlat*
the hours of service of employees, and the
degree of care which employers must ob-
serve to protect the safety of those engaged
in the service, and in view of the enactments
which are held to be lawful regulations of
interstate transportation. Congress has the
power to fix the amount of compensation
necessary to secure a proper service and to
insure reasonable rates to the public upon
the part of the railroads engaged in such
traffic. While this much must necessarily
follow from the constitutional authority ot
Congress, in the light of the interpretation
given to the commerce clause in decision*
of this court, it is equally true that this
regulatory power is subject to any applica-
ble constitutional limitatJons. Tils pow^
cannot, any more than others conferred by
the Constitution, be the subject of lawful
exercise when such exertion of authority
violates fundamental rights secured liy the
Constitution. Gibbons v. Ogden, S Wheat.
1, 196, e L. ed, 23, TO; HonongaheU NaT.
Co. ¥. United States, 148 U. 8. 312. 33«,
37 L. ed. 468, 471, 18 Snp. Ok Kqi. Cffit
.^lOOglc
leie.
WILSON ». NEW,
soo
United Statei t. Joint Traffic -Aim. 171 V.
8. COO, GTl, 43 L. ed. 269, 288, 1» Sup. Ct
It«p. 25; Lotterv Caee (ChampioQ v, Amea)
188 U. S. 321, '353, 47 L. «d. 492, 600, S3
Sup. Ct. Rep. 32], 13 Am. Crim. Rep. 6B1.
The power to legislate, aa well aa other
powers conferred by the Conatitutlon upon
the co-ordinate branchei of the government,
ia limited by the proTigiona of the Sth
Amendment of the Conititution preventing
deprivation of life, liberty, or propertj witb-
— out due proceM of law.
g The phrate "due proceu of law" h&s been
* the aubjeet^of much diRcusHion, and while ita
predae definition haa not been attempted,
and ita limitations have been left to the
gradual process of incluaion and exclusion,
the binding force of its requirements la al-
«i^ conceded, and has been frequently en-
forced In cases as they have arlaen. If the
Constitution is not to become a dead letter
the protection of tbe due process clause
most be given to all entitled to this safe-
guard of rights which the Amendment in-
toidad to secure. The dne process clause
restrains alike every branch of the goveni-
ment, and ia binding upoa all who exercise
Federal power, whether of an ezeeutlTe,
l^slstive, or judicial character. It with-
liolds from the executive the exerelae of
arbitrary authority. It prevents the judi-
ciary from oondemning one In his person or
property without orderly methods of pro-
cedure adapted to the situation, and oppor-
tunity to be heard before judgment. We
are now immediately concerned with Its
effect upon the exercise of legislative au-
While every eaae must depend upon Ita
peculiar circumstance^ certain general prin-
ciples are well settled; perh^ia they have
not been better stated than in the words
of Mr. Justice Matthews, speaking for this
court iu HurUdo v. California, 110 U. S.
616. 631, 28 L. ed. 232, 237, 4 Sup. CL Rep.
Ill, 292, wherein he said: "The conces-
sions of Magna Chaita were wrung from the
ElDg as guaranties against the oppressiona
and usurpations of bis prerogative. It did
not enter into the minds of the barms to
provide security against their own body or
in favor of the Commona by limiting the
power of Parliament; so that bills of at-
tainder, ex post facto laws, laws declaring
forfeitures of estates, and other arbitrary
acta of legislation, which occur ao frequent-
ly In English history, were never regarded
as Inconsistent with the law of the land.
. . . The actual and practical security
for Engliab liberty against legislative
^anny was the power of a free public
. <q>inlon represented by the Commons. In
te tills country written constitutions were
■ detmed essential totproteet the rights and
libertiea of Uie people agaluat the encroach-
ment of power delegated to their govern-
ments, and the provisions of Magna Charts
were incorporated into Bills of Bights.
They were limitations upon all the powers
of government, legislative as well as execu-
tive and judicial. . . , Applied In Eng-
land only as guards against executive usur-
pation and tyranny, here th^ have become
bulwarks also again at arbitrary legtsla*
tlon." Sea Den ex dem. Murray v. Hoboken
Land ft Improv. Co. IS How. 272, 15 L.
ed. 372; Bank of Columbia v. Okely, 4
Wheat. 23G, 4 L. ed. 660; 2 Story, Const
4th ed. I 1944; Cooley, Conat. 241 et eeq.;
McOehee, Due Process of Law, pp. 22 et
seq., and the illuminating discussion of the
subject by Mr. Justice Moody in Twining v.
New Jersey, 211 U. S. 78, 63 L. ed. 97, 29
Sup. Ct Rep. 14.
It results from the principles which have
been enforced In this court, and recognised
by writers of authority, that due process
of law, when applied to the legislative
branch of the government, will not permit
Congress to make anything due process of
law which it sees fit to declare such by the
mere enactment of the statute; if this were
true, life, liberty, or property might be
taken by the terms of the legislative act,
depending for its authority upon the will
or cspiice of the legislature, and constitu-
tional provisions would thus become a mere
nullity. See the frequently quoted argu-
ment of Mr. Webster in the Dartmouth Col-
lege Cas^ 4 Wheat 618, 4 L. ed. 029; David-
son V. New Orleans, 90 U. S. 07, 24 L. ed.
616; Chicago, B. ft Q. R. Co. v. Chicago,
166 U. S. 226, 41 L. ed. 970, 17 Sup. Ct.
Rep. 681; McGebe^ Due Process of Law,
p. 30.
The underlying principle of the decisions
which have constrained this court In rare
instances to exercise its constitutional right
to declare congressional enactments void is
the protection intended to be afforded
against legislation of an arbitrary char-
Whils it Is true, as sUted in the majority-
opinion, that It ia the duty of courts toS
enforce lawful legislative • enactments of ■
Congress, it is equally their dufy and sworn
obligation when differences between acts of
the legislature and tbe guarantiee of the
Federal Constitution arise, to govern their
decisions fay the provisions of that instru-
ment which represents the will of all the
people, and under the authority of which
every branch of the government Is enabled
to discharge the duty imposed upon it.
The set In question must b« brought to
the test of these fundamental principles,
and, if found ta be violative of the Federal
Constitution, it must be declared void.
A^^OOglC
SIO
« SUPREME COUBT EEPORTEE.
Oct 1
GrkTS uid Importttnt la the dnty ii, It can-
not be Avoided coniiitentlj with the obllgk-
tione impoRed hj the Constitution tipon
svery branch of the judidary, Federal and
et&te, and particularly upon this eonrt, to
which, under onr ■yatem, ia intniBted the
nitimate dectrion of questlona of thU ua-
tare.
Applying these principles. In my opinion
thia act cannot lucceMfulIy wlthatand the
attack that !■ made upon it as an arbitrary
and unlawful exertion of aupposed legiala-
tive power. It ia not an act limiting the
hours of aerrice. Nor la it, in my judg-
ment, a legitimate enactment fixing the
wages of employees engaged in such sendee.
In one of its most important aspects, and in
view of the mandatory provisiona of 3 S
of the act, it is one the effect of which is to
increase the wages of certain employees in
interstate commerce by the requirement
that, pending Investigation, the wages which
have theretofore been paid for ten hours'
service shall be given for eight hours' serv-
ice of the same character. The increaae of
wages is to be in force only during the
period of observation provided In the act.
Before the passage of this enactment tbs
wages of the eharacter Involved herein had
heea Sxed by agreement, or determined by
arbitration between the parties concerned.
By til is enactment the wage theretofore
paid for a tan-honrs service is required to
ba paid for an eight-hours service pending
0 the investigation provided for in other
gparts of the law. In other words. Congress,
* npon the face *of the enactment, aipresses
tts inability to fix. In advance of Investiga-
tion, a just and proper wage for the em-
[doyees concerned. It inevitably follows
that the cost of the experiment, measured
by the Increase In wages, smountlng, it is
stated, to many millions of dollars, and cer-
tain to cost a very large sum, must be paid,
not by the public, nor be equally borne by
the contracting parties, but, by legislative
edict, is made to fall entirely upon one of
the parties, with no provision for compen-
sation should the subsequent investigation
establish the injustice or impropriety of
the temporary increase.
Aa examination of the history of the
legislation, and publio documents submitted
for our consideration, amply support tblM
ooncluslon. In submitting the matter to
Congress, the President recommended: "Ex-
plicit approval by the Congress of the con-
sideration by the Interstate Commerce Com-
mission of an increase of freight rates to
meet sueh additional expenditurea hf the
railroads aa may have been rendered necea-
■ary by the adoption of the eight-hour day,
and wfaiob havv o<4 bcen-AfFaet fay adminis-
trative readjustments and •eonomies, should
the facta disclosed justify the Increase."
This recommendation was not followed in
the enactment of the statute. The Senate
Committee having the subject under con-
sideration expressed a desire for investiga-
tion and consideration before enacting a
law of this character. Such was not had,
and the law In its present form was speed-
ily passed.
In fixing wages, conceding the power of
Congress for this purpose, that hody acts
having in mind the rights of the public, of
the owners «f railroads, and of the em-
ployees engaged in their service. Inherent-
ly, such It^slation requires that investiga-
tion and deliberation shall precede action.
In fixing rates Congress has itself recog-
nised this principle and has delegated lts»
power to a Commission which acts onlyn
upon full Investigation and aBr*(fiportunity *
to be heard, wherein the Interest of the
public, the carrier, and the shipper may be
given ample consideration.
Conceding tliat every presumption exists
in favor of the legitimate exercise of legis-
lative power, and that there is no authority
in the courts to inquire Into the motives
which may have Influenced legislators, and
that every such enactment presupposes the
possession of proper motives and sufficient
Information and knowledge to warrant the
action taken, nevertheless Congress has in
this act itself declared the lack of the
requisite information for definite action,
and has directed an experiment to determine
what it should do, imposing in the mean-
time an increase of wages peremptorily de-
clared, the expense of which is to lie boms
entirely by the carrier, without recompense
If the Investigation proves the Injustice or
impropriety of the incresse.
Such legislation. It seems to me, amounts
to the taking of the property of one and giv-
ing it to another. In violation of the spirit
of fair play and equal right which the Con-
stitution Intended to secure in the due
procew clause to all coming within ita pro-
tection, and is a striking illustration of that
method which has always been deemed to
be the plainest Illustration of arbitrary ac-
tion,— the taking of the property of A and
giving it to B by legislative fiat. David-
son V. New Orleans, SS U. S. B7, IM, 24
L. ad. ai6, eie.
It may be taken to be true, aa stated in
the majority opinion, that, but tor thia
legislation, a strike of employees engaged
in interstate commerce would have been
precipitated, disastrous In its consequences
to the commerce of the country.
If I am right in the conclusion that thia
legislation amounted to a deprivation of
property without' dUe process of law, no
D,at,z.d>,.'^-.00'^IC
191C.
WILSON r. NEW.
ill
emerg^cjr and no consequencfl, wtiaterer
their charkctcr, could juitifj the violation
of conBtltutlonal righta. Tha argument of
^ just ill cation bj emergency nat made and
Jjanawered In this court in Jix parte Milll-
* gaii,>4 WalL 2, IS L. ed. 281, decided more
tlian Sftf jears ago, In which it wai held
that not even the peril! of war could im-
pair the right of a resident of a loyal state,
not connected with the milltair Berrice,
and where the courts were open, and In the
proper eicrcise of their juriidiction, to be
tried, convicted, or Henteoced only by
tht ordinarj courts ol law, with trial by
jury and with the sateguards Intended t«
■ecure a fair trial in the court* of law.
Speaking of the purposea which controlled
in the adoption of the Federal Constitution,
and animated those who framed that Inatrn-
ment, thla court aaid, page 120i "Thoae
great and good men foresaw that troubloua
times would arise, when rulera and people
wonld become restive under reatraint, and
•eek by sharp and decisive meaiuree to ao-
complish enda deemed Just and proper;
and that the prinoiplea of eonatltutional
liberty would be in peri], nnteas established
by irrepealable law. The history of the
world bad taught them that what was done
In the paat might be attempted tn the
futnre. The Constitntiou of the United
States ii a law for rulen and people, equal-
ly in war end in peace, and covers with the
■hield of ita protection all clsaaea of men,
at all times, and under all circumstances.
Vo doctrine involving more pernicious
oouaoqueoces was ever Invented by the wit
of man tlian that any of its provisiona can
be suspended during any of the great
exigencies of government. Snch a doctrine
leads directly to anarchy or despotism, hut
the theory of necessity on which It Is baaed
la false; for the government, within the
Constitution, baa all tite powera granted to
It, which are necessary to preserve its ex-
istence; as has been happily proved fay the
result of the great effort to throw off its
Just authority."
This principle la equally applicable to-
day. Constitutional protection la more es-
sential in times of unrest and agitation than
_lt can be in the security of lese turbulent
gperiods. The Constitution Intended to pro-
• tect the citizen* against encroachments upon
his rights impelled by existing emergencies,
or supposed necessity of prompt and vigor-
ous action. Constitutional rights. If tbey
are to be evailable in time of greatest need,
cannot give way to an emergency, however
immediate, or Justify the sacriflee of private
lights secured by the Constitution.
I agree that a situation, such as waa pre-
asnted to Congress at this time, properly
called (or the axertion of its primer author-
ity to avert Inqtendlng calamity. I can-
not agree that constitutional rights may be
sacrificed because of public necessity, nor
taken away because of emergencies which
might result In disaster or inconvenieDce to
publie or private interests. If this be not
so, the constitutional limltBtiona for the
protection of life, liberty, and property are
of little value, and may be taken away
whenever It is aupposed that the public in-
terest will be promoted by the aaeriflce of
rights which the framera of the Constitu-
tion intended should be forever protected
from governmental invasion by any branch
of the government.
Here are certain matters In the opinion
of the majority which I am unable to ap
prove by silent acquiescence. I am not pre-
pared to admit that Congreaa may, when
deemed necessary for the public interest^
coerce employees, against their will, to con-
tinue la service in Interstate eommeroa.
Nor do I think It necesaary to decide, as
declared in the majority opinion, that in
matters of this kind Congress con enact a
oompalsary arbitration law. These ques-
tions are not Involved In this case, and their
decision need not be anticipated until th^
actually arise.
The reasons which I have outlined Impel
me to the conclusion that the oaactment un-
der eonsideratlon necessarily deprives the
complaining railroad oompanlea of rights
secured to them, aa well ta to othera, liy
one of the most essential of the proteetlona
guaranteed by the Federal Constitution.
In thla view I am constrained to dissent
from the oplniod and Judgment In this caaa,
Mr. Justice Pitney, dissenting] ■
I am constrained to dissent from the deci-
sion just announced and from the reaaonlng
upou which It la based. I am convinced
that the statute under eonaideration [Aot
of September S, 6, 1916, chap. 436, 30 Stat
at L. 721) la not within the constitutional
power of Congreas. The Infirmity that I
find in it la so fundamental that, for the
sake of brevity, I lay aside ojl minor
grounda upon which It la attacked, and
hence may b^n by setting forth the title
and essential provlaions of the act, »o as
to rttider plain Its true effect and opera-
tion, omitting portions not neceasary to a
consideration of the mala questiona. X
quote aa followai
An Act to Batabllsh an Eight-hour Day for
Employees of Carriera Engaged la Inter-
■tato and Foreign Commerce, and tor 0th*
tt Purposes.
Be It enacted . . . That beginning
Jannaiy first, nineteen bondred and sevea-
A^iOOglC
su
17 8UFBEUG COUBT BEPOKTER.
Oct. Tan,
teen, eight honn ■K&Il, in contruta for
labor and service, b« deemed a day's work
and the measure or standard of a day's
work tor the purpose of reckoning the com-
pensation for serviceg of all employees who
are now or may hereafter be employed by
any common carrier by railroad, . . .
which is subject to the proviBiona of the
Act of February fourth, eighteen hundred
and eighty^seveu, entitled "Aa Act to Regu-
late Commerce" [S4 Stat, at L. S7D, chap.
104, Comp. Stat. 1913, | 8563], at amended,
and nho are now or may hereatter be act-
ually tagaged in any capacity in the opera-
tion of trains used for the transportation of
persons or property on railroads,
from any atate or territory ot tlis United
Btatea or the Diatrlct ol Columbia to any
other state or. territory of the United States
or the District of Columbia, etc
Sec. 2. That the President shall appoint
a commission of three, which shall obserra
ths operation and affects of the institution
^ of the eight-hour standard workday as
^ above defined and the facts and conditions
■ affecting the* relations between such com-
mon carriers and employees during a period
of not leas than six months nor more than
nine months, in tlie discretion of the
mission, and within thirty days the -eafter
■uch commisaion shall report its flndlngB to
the President and Congress; . .
See. 3. That pending the report of the
commission herein provided for and for a
period of thirty days thereafter the compen-
sation of railway employees subject to this
act for a standard eight-hour workday ahall
not be reduced below the present standard
day's wage, and for all necessary time in
excess of dght hours such employees shall
be paid at a rate not less than the pro rata
rate for such standard eight-hour workday.
See. 4. That any person violating any
provision of this act shall be guilty of a
misdemeanor, eto.
It Is, I think, too plain for argument that
ibe act departs from its Utle, in that It
does not establish eight hours as the limit
of a day's work. There la no prohibition of
service in excess of eight hours per day, nor
any p^ialty for orertime work, fw this is
to be paid for only pro rata. There is no
language evincing an intent to repeal or
modify tha Sixteen Hour Act of March 4,
leOT, chap. 2039, 84 Stat, at L. 1415, Comp.
Stat. 1913, g 8877. It is a matter ot com-
mon knowledge tha.t railroad train service
must be arranged acoording to the distances
between terminals or "division points," and
a change from a sixteen-hour limit to an
eight-hour limit would be so revolutionary
that a purpose to make such m. change Is not
to be lightly inferred. This act affords no
basis for such an Inference. What it pr»-
Bcribes Is that "eight hours shall, tn co»-
Irocts for labor wut lervice, be deemed a
day's work and tlit meaavre or standard of
a day's work for the purpose of reckoning
the compentation lor services." It defines
the terms of contracta for service and pre-
scribes a measure only for the purpose of
reckoning compensation. This is the whole
effect of the 1st section. To shorten the^
discussion, I will concede, arguendo, thatjj
'this section of Itself is not in conflict with*
the Constitution. This being assumed, the
2d section evidently Is unexceptionable.
Serious difficulty appeara, however, when
we come to consider the operation and effect
of the 3d section in connection with the Ist
and 2d. It provides that, pcnditlg the re-
port ot the commission, and for thirty days
thereafter, "the compensation ot railway em-
ployeeB subject to this act for a standard
eight-hour workday shall not be reduced be-
low the present standard day's wage," et«.
This, of course, is to be practically enforced
by means of prosecutions under g 4. The
"present standard day's wage" in effect up-
on the railroad represented by appellees in
this case and upon most ot the other rail-
roads of the country Is a term not easily
defined. Accepting tlie paraphrase employed
in the brief for the United States, the
standard may be expressed as follows: "One
hundred miles or less, ten hours or leas^
shall constitute a day." The effect of g 3
is tliat during a period of from seven to
eleven months the carriers shall pay at
much for eight hours' work as previously
was paid for ten hours' work; the excess
over eight hours to be paid pro rata on the
eight-liour basis. The effect is to Increass
wages in a large but undeHned amount up-
on the railroad represented In this suit, and
in the amount of many millions of dollars,
considering all the railroads that are afi^ect-
ed.
The I^islation is attempted to bs sus-
tained solely as an exercise of the power of
Congress to regulate interstate and foreign
commerce. Evidently it can find no other
support, for Cruigress has no authority over
the Missouri, OklaLoma, A, Gulf Bailway
Company, whosa receivers are appellees here,
or over the other companies affected by this
law, except by reason ot its power to regu-
late commerce; and it possessea this author-
ity only because those corporations volun-
tarily have chosen to engage in commerce^
among the states. A contention that Con-k>
gTeBa*haa power to compel the railroads and<?
their employee* to contioue to carry on such
commerce at all costs will bs dealt with
hereafter.
If, therefore, the act be not. In a real
and substantia sense, a regulation of com-
,A_iOOglC
1018.
WILSON T. NBW.
su
merce, it is in excew of tlis conatitutioiial
power of Congresa. "Manifestly, aoj rule
prescribed for the cooduot of interstate com-
merce, io order to be within the competenc?
-of Congress under its power to regulate eom-
merce among the ete.te8, must have some
I'eai or substantial relation to or connection
with the cammerce regulated." Adair v.
United States, 208 U. S. 161, 178, 62 L. ed.
43fl, 444, Z9 Sup. Ct. Rep. 277, 12 Ann. Cai.
7M. And, though it be a regulation of
-commerce, it is void if it conflicts with the
proTieions of the 6th Amendment, that do
person shall be "deprived of life, libertjr, or
property without due process of law; nor
■Iiall private property be taken for public
use without just compensation." Monon-
«ahela Nav. Co. t. United States, 148 U. 6.
312, 33S, 37 L. ed. 493, 471, 13 Sup. Ct. Eep.
«Z2; United States v. Lynsh, 186 U. 8. 445,
471, 47 L. ed. eSB, 640, 23 Sup. Ct Rep.
340; Adair v. United States, 208 U. S. 161,
ISO, 62 L. ed. 438, 445, 28 Sup. CL Rep.
277, 13 Ann. Cas. 764; United States v.
Cress, decided March 12, 1617 [243 U. S.
316, 61 L. ed. 746, 37 Sup. CL Rep. 380].
I am convinced, in the first place, that
the act cannot be Bustained as a regulation
«f commerce, because it has no such object,
«pvatlon, or effect. It remoTea no impedi-
ment or obatmctlon from the way of traffic
or interoouTse, prescribe* no servlcs to the
public, lays down no rule respecting tbe
node in which service is to be performed, or
the safeguards to be placed about it, or the
-qualifications or conduct of those who are to
perform lb In short, it has no substantial
relation to or connection with commerce, —
no closer relation than liae the price which
the carrier pays for ite engines and cars or
for the coal used in propelling than.
The suggestion that it was psssed to pre-
vent a threatened strike, and In this sense
to remove an obstruction from the path of
^mmmerce, while true in fact, is immaterial
£tli law. It amounts to no more than saying
■ tbat it waa'enscted to take care of an emer-
gency. But an emergency can neither create
a power nor excuse a defiance of the limita-
tions upon the powers of the government.
Ex parte Milligan, 4 Wall. 2, 121, 18 L. ed.
281, 206.
The simple effect of g 3 is to increase, dur-
ing the period of its operation, the rate of
wages of rnilroftd trainmen employed in in-
terstate commerce. It comes to this, — that
whereas the owners of the railroads have
devoted their property to the movement of
interstate as welt as intrastate commerce,
and whereas the trainmen have accepted
employment in such commerce, and thus em-
ployers and employees are engaged together
in a quasi public service, the act steps in
and prescrilMS how the money earned in the
public service sliall be divided I>etween the
owners of the railroads and tbeae particular
employees. This, in my view, Is a regulap
tion not of commerce, but of the Internal
affaire of the oommerce carriers, — precisely
as if an act were to provide that the rate
of Interest payable to the Ijoudbolders must
be increased and tbe dividend payments to
the stockholders correspondin^y decreased,
— and is not only without support in the
commerce clause of the Constitution, but,
as I shall endeavor to show, transgresses
the limitations of the eth Amendment.
The oft-quoted deolaration of Chief Justice
Marshall in Gibbons r. Ogden, 9 Wheat. 1,
106, B L. ed. 23, 70, tbat tbe power to r^u-
late commerce among tbe states, like all
others vested in Congress, "is complete in
itself, may be exerciaed to its utmost ex-
tent, and acknowledges no limitations other
than are prescribed In the Constitution,"
means that the exercise of the power is not
dependent on, and is not to be hampered by,
the action of the states, and is unrestrained
by any qualification other than such as an
contained in the lundameutal law. To say
that tb« power "acknowledges no limita*
tions" is. not to say that it is llmitlesi In
extent, for It is confined by the very defl-,^
nition of the subject matter. Tbe power lag
vast, but is not vagu^ and*error inevitably*
must result from treating it as nebulous.
The act stands wholly without precedent
in either state or national legislation. Let
it be admitted that mere novelty is not a
ground of constitutional objection, since It
is tbs appropriate function of a legislature
to change the law. This act, however, dif-
fers not only in degree, but in kind, from
any and all that have preceded it. It is
now nearly thirty years since Congress en-
tered the field of direct regulation of in-
terstate railway carriers. Before that the
entire field was open to the states, and since
the year 18S7 the regulation of their inter-
nal commerce has stUl remained open to
them. This has been a period of intenae and
widespread activity and progress in com-
merce regulation, and, aa it happens, of
equal progress respecting legislation in the
Interest of warkingmen. The fact that no
law fixing the rate of compensation for rail-
road employees ever was proposed until
this act was brought forward a very few
days before its passage^ and then only un-
der the coercive influence of a threatened
public calamity, is the strongest evidence
that. In tbe judgment of executives and
legislators, state and national, measures of
this sort were not within the bounds of per-
missible regulation of commerce.
Aa already stated, the act has not tb*
effect of imposing any limit to the nun)I>eT
of boure that a trainman may work in a
,A_^OOglC
SIl
ST SUPREME COURT RBPORTEB.
Oor. Tebm,
day, nor mhj penalty for overtime work.
Tberefore, it cannot be lustained upon th«
ground on which tlie court Euatained tiie
Act ol U»reli 4, 1907 (34 SUt. at L. 14IG,
«liap. 2S39, Comp. Stat. 1013, 3 S0T7}, lim-
iting the hour* of serrice of employees en-
gaged in intentatA commerce, — a ground
epitomized in Baltimore ft 0. H. Co. v. In-
terstate Commerce Commiulon, 221 V. S.
012, 610, 66 L. ed. 878, 883, 31 Sup. Ct
Rep. 621, aa toUong: "The length of hour*
of service hai direct relation to the efflciencj
of the bnmaii agmciea upon nhich protee-
tion to life and property neceBsaril; de-
»• pendB. . . In it* power suitably to
■ provide for tiie safety of employees* and
travelers. Congress was not limited to the
enactment of laws relating to mechanical ap-
pliances, but it was also competent to con-
sider, and to endeavor to reduce, the dangers
incident to the strain of ezcesdve hours of
duty on the part of engineers, conductors,
train despatdtere, telegraphers, and other
persona embraced within the class defined
The Safety Appliance Acts are aa evident-
ly distingniBhablB, they likewise being de-
signed to secure the safety of employees and
travelers, as this court repeatedly has held.
Johnson T, Bouthem P. Co. IDS U. S. 1, 17,
49 L, ed. 363, 360, 26 Sup. Ct. Rep. 158, IT
Am. Neg. R^. 412; Southern R. Co. v.
United States, 222 U. S. 20, 20, 56 L. ed.
72, T4, S2 Sup. a. Rep. 2, 3, N. C. C. A.
S22; Texas ft P. R. Co. v. Rigsby, 241 U. S.
S3, 41, 60 L. ed. 874, 878, 36 Sup. Ct. Rep.
482.
Nor does the Federal Emplo^^en' Liability
Act of April 22, 1S08 (35 Stat, at L. 66,
Ohap. 14», Comp. Stat. 1013, g SQST), fur-
nish a precedent for the present legislation.
The constitutionality of that act was sus-
tained in Second Employers' Liability Cases
(Mondou T. Kew York, N. H. ft H. R. Co.)
223 U. S. 1, 66 L. ed. 32T, 38 L.R.A.(N.S.)
44, 32 Sup. Ct. Rep. 160, 1 N. C. C. A. 8T5,
upon grounds very clearly aet forth In the
opinion, thus (p. 48): "Congress, in the
exertion of its power orer interstate com-
merce, may regulate the relations of com-
mon carriers by railroad and their em-
ployees, while both are engaged in such com-
merce, subject always to the limitations pre-
scribed in ths Constitution, and to ths
qualification that ths particulars In which
Uiose relations are regulated must have a
real or substantial connection with ths In-
terstate commerce in which the carriers and
their employees are engaged;" and again
(pp. 60, 61) : "The natural tendency of the
dhanges described Is to impel the carriers
to avoid or prevent the negligent acts ruid
omissions which are made the bases of the
rights of recovery which the statute creates
I and defines; and, as iritat«ver makes for
that end tends tn promote the safety of the
employees and to advance the commerce la
wbtdi they are engaged, we entertain n»
doubt that in making those changes Con*
gress acted within the limlte of the discre-
tion confided to It hy ths Constitution."
Progreaaive aa has been the l^sIatlonS
of Congreaa and'the atates enacted during?
the post thirty years for the r^ulation of
common carriers, I have found none at all
analogous to that now under con si deration-
Besides the acta already referred to, laws
have been passed respecting tariffs, bills of
lading, through routes, joint ratea, the ex*
change of traffic, terminal charges, loco-
motive headlights, and a multitude of otbei
matters; but each and all of tbese have
some direct and anbstantial relation to com-
merce itself.
^e suggestion that an Increase in the
waged of trainmen will increase their con-
tentment, encourage prompt and efficient
service, and thus facilitate the movement
of commerce, is altogether fanciful. The
increase effected is not at all conditioned
upon contented or efficient service. It bene-
fits alike those who are efficient and those
who are not. It does not equalize wages,
but applies proportionately in all cases;
making the least increase upon railroads
whose rates of pay are the lowest, the great-
est where wages sre the highest. Aa a
measure for improving the quality of rail-
road locomotives, a law requiring the com-
panies to pay 26 per cent more than before
for each locomotive, without stipulating for
any improvement In the quality, would be
absurdly ineffective. Equally futile, aa a
measure for improvement of the quality of
railway supplies, would be a provision of
law compelling the roads to pay 25 per
cent more than formerly for rails, cross-
ties, fuel, and the like, irrespective of the
question of quality. In each of these in-
stances the natural effect of the regulation
aa an ^d to commerce would be precisely
the same as that of the act under consid-
eration—that is, nit.
The attempt is made to sustain the act
as analogous to the exercise of the power
to fix rates of freight and fare for the car-
riage ot commodities and passengers, or aa
a branch of that power. This, in my judg-
ment, is a false analogy. Hie origin and
basis of the governmental power to regulate h
rates are In the right of the public to de-^
mand'and secure the services of ths common*
carrier on reasonable and equal terms, and
without haggling as to ratea or other terms.
Every member ot the public is entitled to
be aerved, and rates are established by pub-
lic authority In order to protect the publle
against oppression and diacriminaUon. But
,A_.OOglC
101«.
WILSON T. NEW.
thera Is no common or other right on the
part of the trainmen to demaiid emploj-
ment from the curlen, nor any right on
the part of the carriers to compel the train-
nen to serve them. The employment U *
matter of private bargaining betwem the
paitiee, in which each has a conetitutional
right to exact such terms as he may deem
proper. Adair t. United States, 206 U. B.
lei, ITS, 17S, B& L. ed. 430, 441, 442, 88
Sup. Ct Eep. 2T7, 13 Ann. Cua. 784; Cop-
page V. Kenaaa, 236 U. B. 1, 20, 69 L. ed.
441, 44B, L.B.A.1015A, 900, 35 Sup. Ct. Bep.
240. Thus the sole foundation of the gov-
ernmental power to fix rates it absent In
the case of wages, and the asserted power
to fix the latter is inconaietent with the
constitutional rights of employer and em-
ployee to agree between tJiemaelves respect-
ing the terms of the employment.
But, further, the interest of the pubUo
In the regulation of rates lies in limiting
the carrier to a reasonable compensation
for hia services. Incidentally, suoh a regu-
lation may eiert an indirect influence upon
wages, u upon other expenditures of the
earrier. Thus, the Interstate Commerc*
Commission hu held that undue cost of
operation or management cannot stand as
a juBtification for unreasonahly high rates.
Hilk Producers' Protectire Asio. v. Dela-
ware, L. i W. B. Co. 7 Inters. Com. Rep.
02, 164; Society of American Florists v.
United States Exp. Co. 12 Inters. Com.
Rep. 120, 127. But whatever concern the
public authorities, as regulators of com-
merce, have in tbs cost of operation or
management (including the rates of wages).
Is in the direction of lowering — not increas-
ing— expenses. The present act has for its
purpose and neeeesary effect the raising of
wages; and, whatever may be ite juatiflca-
tion from the humanitarian standpoint, it
J, cannot seriously be regarded as a regula-
^ tion of commerce because incidental to a
■ regulation of ratea. It Is, Indeed, the very
antithesis of such a regulation. It It re-
duced wages, it would be much more easily
■npportable on this theory.
liie primary and fundamental constitu-
tional defect that I find in the act now
under consideration is precisely this: that
It undertakes to regulate the relations of
common carriers bj railroad to tiieir em-
ployees In respect to a particular matter —
an increase of wages — that has no real and
anbetantlal connection with the interstate
commerce in which the carriers and their
employees are engaged. Certainly the
amount of wages that shall be paid to a
trainman has no more substantial relation
to commerce than the matter which was
under consider aU on In Adair v. United
States. 2QS U. B. 101, 62 L. ed. 436, 28
Sup. Ot Rep. K77, IS Ann. Cas. 71)4, that
is, the right of an employee to retain his
employment notwithstanding his member-
ship in a labor organization. In that case
this court, b; Mr. Justice Harlan, used the
following language (p. 176): "But what
possible legal or logical connection is there
between an employee's membership in a
labor organization and the carrying on of
interstate commerce! Suoh relation to a
labor organization cannot have, in iUelf
and in the eye of the law, any bearing
upon the commerce with which the em-
ployee is connected by his labor and senr>
It proves nothing to say that the In-
crease of pay was or b necessary, in th*
judgment of Congress, to prevent all rail-
road service tn interstate commerce from
being suspended. As a law to prevmt a
strike, the act Is quite intelligible; but, as
we have seen, the emergeney conferred no
power upon Congress to impose the burden
upon the carriers. If the public exigency
required i^ Congress perhaps might have
appropriated public moneys to satisfy the
domands of the trainmen. But there is no
Brguii:ent for requiring the carriers to pay
the cost that would not equally apply to
renewed demands, as often as made, if made?*
by men who had the power to tie up traffio.*
I cannot* bell eve that this is regulation of*
commerce, within the meaning of the Con-
etitution.
But, secondly, as already remarked, and
as shown In the above quotation from 223
U. S. p. 40, the power of Congress to regu-
late commerce among the states la "subjeot
always to the limitations prescribed in the
Constitution," and, among others, to the in*
bibition of the Gth Amendment against the
deprivation o( liberty or property without
due proceas of law and the talcing of pri-
vate property for public use without joat
eompensatlon. This has been held so often
that it hardly is neeeesary to cite cases.
Mmongahela Na*. Co. v. United States,
148 U. 8. S12, 336, 37 L. ed. 403. 471, 13
Sup. Ct. Rep. 022; United States v. Lynah,
188 U. S. 44S, 471, 47 U ed. fi3D, S49, S3
Sup. Ct Hep. 349; Adair v. United SUtes,
20S U. 6. 161, 180, 62 L. ed. 436, 445, 28
Sup. Ct Rep. 277, 13 Ann. Cas. 764; Unit-
ed States V. Cress, decided March 12, 1917
[243 U. S. 316, ei U ed. 746, 37 Sop. Ct
Bep. 380],
I am oonvlneed that the act trangrcsses
this provision of the Amendment in two
respects; first, in that it exceeds the bounds
of proper r^ulatlon, and deprives the own-
era of the railroads of their fundamental
rights of liberty and property; and, seo-
ondly, In that Congress, although confessed-
ly not In possession of the Information ne»
,A_.OOglC
814
87 SUPREME COUBT REPORTEB.
Oct. Tstac,
«nai7 for InteHigent utd }aat treatment of
the pending oontroversj between the tax-
Titn nnd the trainmen (for the act Itself,
in itB second aection, providee for the verj
Inveatigation that the history of the legle-
lation ahowe was imperatlvelj neceaaary),
arbitrarily Imposed upon the carriers the
entire and enonnoua cost of an experimen-
tal inereaae in wages, without providing for
any compenBation to be paid in caae the
Investigation should demonstrate the im-
propriety of the increase.
Upon the first of these points, I repeat
that the sole authority of Congress to regU'
late these railroad corporations. Including
that company which Is represented in the
present action, arises from the fact that
they Toluntarily have devoted their prop-
. ertj to the service of interstate commerce.
« t am unable to find in the Cmstitution any
• authority on the part of Ckmgresa to oom-
mandeer the railroada, or the serrices of
the trainmen. The cases that are referred
to as sustaining the supposed obligation of
the carrier to carry on its business regard-
less of coat, and the authority of govern-
inent to compel performance of that obli-
gation (Atlantic Coast line R. Co. T. North
Carolina Corp. Commission, 206 U. B. 1,
27, SI L. ed. 933, 0*6, 27 Sup. Ct. Rep.
S8G, 11 Ann. Cas. 308; Missouri P. R. Co.
V. Kansas, 216 U. 8. 282, 276, 64 L. ed.
472, 476, 30 Sup. Ct Rep. 330; see also
Wisconsin, M. & P. R. Co. v. Jacobson, 170
U. S. 287, 302, 46 L. ed. 194, 201, 21 Sap.
Ct. Rep. 116), were decisions sustaining
the power of ttatt governments to enforoe
obligations arising out of the grant by the
state to the railroad company of the right
of existence and the franchlae to operate
Its road) and they were decided upon the
authority of a line of decisions In the state
courts (Worcester v. Norwich t W. R. Co.
lOe Mass. 103, 113; People ex reL Kimball
T. Boston * A. B. Co. 70 N. Y. 669, 671;
People V. New York, L. E. ft W. B. Co.
104 N. Y. SS, 67, 68 Am. Rep. 484, 0 N. E.
S56; People ex rel. Cantrell t. St. Louis,
A. ft T. H. R. Co. 176 III. G12, 624, 35
L.R.A. 656, 45 N. E. 824, 62 N. B. 292)
that based the right of control upon the
power of the etate to enforce the charter
obligation and the reserved power to alter
or amend the charter in the public interest.
The relation of the Federal government to
fttilroad companies not ehartered bj it is
altogether different, being dependent entire-
ly upon the fact that the companies have
seen fit to engage in interatate transporta-
tion,— a branch of business from which, in
my opinion, they are at libertrf to withdraw
»t any time, w> far as any authority of
the Federal government to prevent It is
ctHicemed, however Impracticable such with-
drawal may be.
He eitent to which regulation properly
can go under such circumstances was de-
fined very clearly by this court in the great
case of Munn v. Illinois, 94 U. S. 113, 24
L. ed. 77, where Mr. Chief Justice Waite,
spealcing for the court, said (p. 126) ;
"Property does become clothed with a pnb-^
lie Interest when used in a manner to make^
it of puhlio*conaequence, and affect the com-*
munity at large. When, therefore, one de-
votes his property to a use in which the
public has an interest, he, in effect, granta
to the public an interest In that use, and
muat submit to be controlled by the publio
for the common goad, to the eitent of the
interest he has thus created. He may with-
draw his grant by discontinuing the use;
but, BO long as he maintains the use, he
muat submit to the control." The control
there referred to was a regulation by the
state ot the service performed by publio
warehouses, and a limitation of the charges
for that service. Hie opinion made it plain
that the Intereat of the public was not in
the property, but In the use of it; that not
ita management or dispoaition fn general,
but only the manner of its use In the aerr-
ice of the public, was subject to control.
The same limitation upon the authority
of the publio has been variously axpresaed
in many decisions. Thus, in Interstate
Commerce Commission t. Chicago G. W. R.
Co. 209 U. 8. lOa, 118, S2 L ed. 705, 712,
28 Sup. Ct. Bep. 403, the court, by Mr.
Justice Brewer, said: "It muat be rranem*
hered that railroada are the private prop-
erty of their owners; that while from th«
public character of the work in which they
are engaged the public hag the power to
preacribe rules for securing faithful and
efficient service end equality between ship-
pers and eonimunitiea, yet in no proper
sense Is the public a general manager." In
Southern P. Co. t. Interstate Commerce
Commission, 219 U. 6. 433, 444, 66 L. ed.
283, 287, 31 Sup. Ct. Rep. 288, reference
was made to the unwarranted aasertion by
the Commission of "a power which, if ib
obtained, would open a vast field for th»
exercise of discretion, to the destruction of
rights of private property in railroads, and
would, in effect, assert public «wnerahip
without any of the responsibilities which
ownership would imply." And, In the Min-
nesota Bate Cases (Simpson v. Shepard)
230 U. B. 352, 433, 67 L. ed. 1511. 1555, 48
L.H.A.(N.S.) 1161, 33 Sup. Ct. Bep. 729.
Ann. Cas. 19iaA, 18, It waa aaid: "The
property of the railroad corporation has
been devoted to a pnblio use. There Is al- «
ways the obligation springing from the n^-S
tnre of the business in which it ia'eagaged *
,A_^OOglC
UlS.
WILSON T. NEW.
nr
— whtdi printa adgeacf mar not b« per-
mitted to ignore — that there shall not be
an exorbltsnt charge for the service ren-
dered. But the state has not seen flt to
nndertake the service itself; and the pri-
vate property embarked in it is not placed
at the mercy of legislative caprice. It reeta
secure under the eonstitutional protection
which extends not merely to the title, bnt
to the right to recdve Jnat compensation
for the service given to the public."
Hie case last mentioned was one of al-
leged confiacatton resultiiig from a itat*
law limiting rates of freight, and the lan-
guage quoted waa appropriate to that topic.
But the right to immunity Irtun oonfisca-
tlon le not the only right of property safe-
guarded by the Sth Amendment. Righta of
property include something more than mere
ownership and the privilege of receiving a
limited return from Its use. The right to
control, to manage, and to diepoee of it, the
right to put It at risk in business, and by
Intimate slclll and enterprise to moke
gains beyond the fixed rates ol Interest, —
the right to hire empl<^ees, to bargain
freely with them about the rate of wages,
and from their lalMrs to make lawful gains,
— these are among the essential rights of
properly, that pertain to ownera of rail-
roads as to others. The devotl<m of tbelr
property to the publto use does not give to
the public an Interest in the property, but
only in Its use.
Hiii act, in my judgment, usurps the
right of Uie owners of the railroads to
manage their own properties, and it an at-
tempt to control and manage the properties
rather than to regulate their use in com-
merce. In particular, it deprives the car-
riers of their right to agree with their em-
ployees as to the terms of employment.
Without amplifying the point, I need only
refer again to Adair v. United States, £08
V. S. 161, 174, ITS, 62 L. ed. 438, 442, 444,
28 Sup. Ct Hep. 2T7, 13 Ann. Cos. 704.
^ I wholly dissent from the suggestion,
gnpon which great stress is Isid in the opln-
* ioa of the majority of the court,*that the
admittedly private right of the carriers and
their employees to flx by agreement between
themeelvee the standard of wages to control
their relations — a right guaranteed by the
"due process of law" clause, as this court
repeatedly has held — can be set at naught
or treated as waived in the present Instance
because the parties have failed to agree, or
that legislative interference can be jnstllled
on that ground. He rlg^t to contract is
the right to Bay by wbot terms one will
be bound. It Is of the very essence of the
right that the parties may remain In dts-
a'greement if cither party is not content
with any term proposed by the other. A
failure to agree b not a waiver but an
exercise of the right, — as much so as the
making of an agreement.
To say that the United States has such
a relation to interstate traffic and the trans-
portation of the mails that it may interfere
directly, by force, or Indirectly, through
the courts, to remove obstructions placed
by wrongdoers in the way of such transpor-
tation (Re Debs, IS8 U. B. S04, 682, 586,
3B L. ed. 10B2, 1101, 1103, 16 Sup. Ct. Rep.
900), is not to say tliat, when obstruction
Is threatened. Congress, without taking over
the railroads snd paying just compensation
to the owners, may exercise control of the
revenuea and dispose of them for the pur-
pose of buying peace, either by direct In-
tervention or through coercive leglslaUon.
To do this is to ignore Uie distinction be-
tween meum and tuum, to safeguard which
was one of the objects of the 6th Amend-
The logical consequences of the doctrine
now announced are sufficient to condemn it.
If Congress may flx wages of trainmen in
Interstate commerce during a term of
months, it may do so during a tv™ of
years, or indefinitely. If It may increase
wages, much more certainly it may reduce
them. If It may establish a minimum. It
may establish a maximum. If it may im-
pose its arbitral award upon the parties in
a dispute about wages, it may do the lame^
in the event of a dispute between the rail- 5
roada and' the coal mlnera, the ear build-*
era, or the producers of any other com-
modity essential to the proper movement of
traffic.
That the act ia a wide departure from all
previous legislation for regulating commerce
has been shown. The bearing of this upon
the present point is obvious, since it is a
safe assertion that every dollar of the thou-
sands of mlllians that are Invested in rail-
roads in this country has been Invested
without any anticipation or reason for an-
ticipating that a law of thh character
would be adjudged to be permiesible, either
as a regulation of commerce at on any
other ground.
Upon the second ground, of repugnancy
to the 6th Amendment, I need not dwell,
aince It is dealt with fully tn the dissenting
opinion of Mr. Justice Day, with whose
views upon that question I entirely agree.
Mr. Justice Tan I>«vanier concurs in
this dissent, including that portion of Mr.
Justice Day'a dissenting opinion just mea-
Uoned.
Mr. Justice KcHtoynolda, dissenting:
Whatever else the Act of September 9, g,
1918 [39 Stat, at L. 721, chap. 43«], mar
.A^^OOglC
ai8
ST BUPREHB COUBT RBPOBTER.
do, It certainly conunanda that during a
minimum period ol eevtai montba Interatata
common carriera hj railroads shall pa; their
employees engaged in operating trains for
eight hours' work a wage not less than the
one then eBtabtished for a sttuidard day, —
generally ten hours.
I have not heretofore supposed that looh
action was a regulation of commerce with-
in the fair intendment of those words as
used in the Constitution; and the argument
advanced in support of the contrary view
is unsatisfactory to my mind. I cannot,
therefore, concur in the conclusion that it
^ was within the power of Congress to enact
gthe statute.
* 'But, GonsideriDg the doctrine now affirmed
by a majority of the court as Mtablished,
it follows as of course that Congress has
power to fix a maximum as well as a mini-
mum wage for trainmen; to require com-
pulsory arbitration of labor disputes wbich
may seriously and directly jeopardize the
movement of interstate trafBc; and to take
measures effectively to protect the free flow
of such commerce against any combination,
irbether of operatives, ownent or ttraogen.
(2ia tr. S. UCT>
BNTEBPWSE IRRIGATION DISTRICT
«t al., PIffs. in Err.,
O0DRT8 «='3&4(10)— Ebbob TO StatbCottbt
— Decihiok on Nom-Fbdebai. Qiookd,
1. A decision of the highest court of a
state adverse to tiie contention that, con-
sistently with the due process of law and
equal protection of the laws clauses of U.
S. Const. 14th Amend., an adjudication of
the state board of irrigation in favor '
the asserted right of a canal company, '
der an alleged priority of appropriation,
divert through its canal a certain amount
of water from a stream, couM not be treated
as binding upon those claiming under other
appropriations, because it was made with-
out lawful notice or opportunity to be heard,
is not reviewable in the Federal Supreme
Court on writ of error, where the state court
ftlso decided that the canal company was
entitled to prevail for the reason that its
adversaries were estopped by their own eon-
duct to question the canal company's claims.
[Ed. Note.— for atber cues, tea Courts, Cent.
D1(. I 1056.1
CouRTa «=>394{10) — Ebbob to State
Court -~ Fedebal Qubstioh — Local
Law.
2. The contention that the highest
court of a state, in disposing of some of
the questions involved in a clause, including
that of a defense of an estoppel In pais, mis-
conceived or misapplied the statute and
common law of the state, and thereby in-
fringed the due process of law and equal
protection of the laws clauses of U. S. Cout.
14th Amend., — present* no Federal que*>
tlon which will sustain a writ of error ir«M
the Federal Supreme Court.
rL Note.— For other oaaei, see OonrtSi Owt.
i UH-l
IN ERROR to the Supreme Court of the
State of Nebraska to review a decree
which reversed a decree of the District
Court of Scotts Bluff County, in that etato,
adverse to the right of a canal company to
divert the waters of a stream in excess of a
certain number of second feet, under an
alleged priority of appropriation. Dis-
missed for want of jurisdiction.
See same case below, 82 Neb. 121, 13S N.
W. 171.
The facts are stated in the opinion.
Messrs. Harry N. Haynes, Thomas H.
Morrow, William Morrow, and Harold D.
Roberts for plaintiffs in error.
Messrs. Will R. King, Fred A. Wright,
and Carl C. Wright for defendants in «rror.
*Mr. Justice Ton Devanter delivered the*
opinion of the court;
In form this was a suit to determine tha
relative right* of the parties to divert tha
waters of the North Platte river, in west-
ern Nebraska, for purposea of irrigatl<m;
but the only controversy disclosed was over
tha extent and priority of the right of tha
Farmers Mutual Canal Company, the prin-
cipal defendant. Another defendant, tha
Tri-State Land Company, was intereated aa
a stockholder of the canal company, and
need be noticed only In another relation.
The Canal Company claimed a right to
divert through its canal l,142f cubic feet of
water per second of time, — usually spokca
of as second feet, — under an appropriation
dating from September 16, 1887, and tha
other parties severally claimed rights to di-
vert speoiflc amounts under later appro-
priftticKia In so far aa the Canal Cun-
pany's claim exceeded 28 second feet, with
a priority dating from September 18, 1887,
it was challenged on the grounds that tha
appropriation upon which It rested had not
been perfected with reasonable diligence;
that this was the situation when the ap-
propriations under which the others wer*
claiming were made and perfected; that U
the claim subsequently was enlarged It
could not, aa to the enlargemoit, take prior-
ity over the intervening rights of other%
and that if it originally covered l,142f seo- »
I ond feet, which was disputed, all right toS
— "" than 28 feet had*been lost by nonnaer.*
IB topic * KET-NUHBBR In all K*r-Nmub«nd Dlcssts * lads*
A^^OOglC
1918. ENTERPRISB IBRIGATION DI8T. v. FARMERS MUTUAL CANAL 00.
31fl
Bat tlia Canal Company aaaertcd the ralld-
Itf of Iti entire elaint, denied laj loas by
U«k of dlligenee or nouiuer, and contended,
among otfaer thlnga, that the State Board
of Irrigation had nutained ita entire claim
In 1897, when the board wai eopiged under
the itate law (Lew* ISgs, chap. 09, || IS-
27) in adjudicating elainu to the water*
of the North Platte river, and that the
other parties were estopped from question'
log Ita right b^ reason of their attitude
and conduct after 1904, when ita predeces-
aor In interest waa mmpleting the eanal
and diverting works at enormous cost. The
other partiea denied that there waa an^
ground for an estoppel, and insisted that,
eonsistentif with the due process and equal
protection provisions of the 14th Amend-
ment, the claimed adjudication bj the State
Board of Irrigation contd not be treated as
in any way binding upon them, because (a)
the law under which the board acted made
ne provision for notice, and (b) the board
had proceeded without notice and without
affording an opportunity to be heard.
Other contentions were advanced, but no
It WSJ conceded that during portions of
the irri^tiOD season the flow of the stream
had not been anfScient t« aatiafy all of
these claims, and that the State Board of
Irrigation recently had recognized the Canal
Company's claim by refusing to restrict its
diversbn in time of low water to less than
l,142f second feet
Hie cause was submitted on the plead-
ings and on a "stipulation of facts" cover-
ing 84 printed pages and containing much
that waa purely evidential, and not in the
nature of a statement of ultimate facta.
The stipulation disclosed that the Canal
Company's canal was about 80 miles in
length, was completed in October, 1910, and
was capable of irrigating 80,000 acres; that
g in I89S it had cost about 9100,000 and was
* capable of irrigating SO,D0O acres; that by
• reason of flnanciaT difficulties, a foreclosure
mit and other litigation, the work of oon-
atructiou waa practically suspended from
1806 to 190S; that the work was actively
resumed in 1906 aad continued with vigor
until October, 1910, when it was completed;
that the cost of the work from 1906 to IBIO
was in excess of 91,600,000, and more than
9960,000 of this waa expended before Aug-
ust, 1909, when this suit was begun; that
the work done after IB05 included a needle-
dam across the river, costing 927,809.20,
an additional headgate of concrete and re-
inforced steel, costing 962,118.20, and a
wastegate or spillway of similar construc-
tion, costing 942,263.46; and that the
number of acres actually reclaimed and ir-
rigated l>y the canal was being rapidly la-
creased, being less than 2,000 acres in 1905,
and 20,000 acrea in ISIO.
The trial oourt held that the canal com-
pany's right, although prior in time, did
not extend to more than 28.67 second feet
of the water, and entered a decree to that
affect. An Injunction was also granted re-
straining the company from taking more
than was thus accorded to It. In Uie tu-
preme court the decree was reversed and
the suit waa dismissed on the merits so far
as it coneerned the Canal Company and tfaa
Tri-State Land Company, and without
prejudice in respect of any controversy ba-
tweea the other parties. OS Neb. 121, 1S8
N. W. 17 L
The supreme court, recognizing that the
case wsa of great importance to the partiea
and to all who were Interested In irrigated
lands in the state, and that any decision
therein would almost inevitably result in
serious loss to one or more of the partieit
proceeded in a painstaking way to statflt
discuss, and determine all the questions
presented. Among other thngs, It sus-
tained the authority of the State Board of
Irrigation under the Act of 1896 to adjudi-
cate claims like those to the waters of the
North Platte river; described the board's
power in that regard as quasi judicial ando
its adjudications as final 'unless appealedl*
from te the district court; held that the
right to due notice and a reasonable oppor-
tunity to be heard was implied In the act;
and reaffirmed Its decision in Farmers Canal
Co. V. Frank, 72 Neb. 130, 100 N. W. 286,
made in 1904, that the board's action upon
the Canal Company's claim amounted to an
unconditional adjudication of the extent
and priority of the claim, and that a lead-
ing purpose of the Act of 1896 waa to create
a state board "whose records would evi-
dence the priorities of title to the appro-
priation of water In such a public manner
that no cme might be misled."
As respects the notice actually given to
the ether parties, the opportunity which
they had for opposing or contesting the
Canal Company's claim before tha board,
and the knowledge of the board's action
which tiiey reasonably should be regarded
ling, the court found, in substance,
that before the board began to inquire Into
tbe claims to tbe waters of the North
Platte, it gave due notice of its pnrpoee so
to do; that under that notice all the par-
ties to thta suit, or their predecessors in
interest, appeareid before the secretary of
the board, at the times and places indicated
In the notioe, and presented such evidence
as they deemed appropriate in support of
their respective claims, — the evidence being
preserved and beoeming a part of tbe reo-
,A_.OOglC
320
87 SUPREME COURT REPORTER.
Oor. TKuf,
ord In that proceeding; that the boixd'a
printed rule*, which were dul; brought ta
the attention of ell the parties, permitted
any claimant to contest the claim of an-
other, but no one sought to contest the
Canal Company's claim; that In ordinary
course, after the evidence vas presented, the
claims were adjudicated, — * separate opin-
ion upon each claim being prepared by the
secretary, who was the state engineer, and
afterwards adopted by the board ; that each
elaimant was specially notified of the de-
cision upon his own claim, but not of the
_ deciaione upon the claim* of others ; that
e ttte decision upon the Canal Company's
■ claim, in addition to being* entered in the
records of the state board, was shown in a
list of estabilshed claims regularly appear-
ing in the biennial reports of the board
which the stats required to be made and
published, and was recorded in 1906 in the
office of the county cleric of the county
where the appropriation was made.
In these circumstances the oourt conclud-
ed that the contention that the board had
proceeded without adequate notice to the
parties, or without affording them a rea-
sonable opportunity to be heard, had no
real foundation. It also concluded that, in
view of the nature of the enterprise, the
large expenditure* required, and the elr-
enmatancsB surrounding the temporary sus-
pension of the work, the contention that
part of the Canal Company's claim had
been lost through lack ol diligenoe or non-
noer was highly inequitable and untenable.
Tlien, coming to the question of ertoppel,
the court held that, even if the other ques-
tions were decided against the Canal Com-
pany, It was entitled b> prevail upon the
ground that its adversaries were estopped
by reason of their own conduct. In the
course of its opinion the court referred at
length to the admisdona in the pleadings
and stipulation, and found, as matter of
fact, that shortly after the decision In
Farmers Canal Co. v. Frank, supra, the Trl-
State l4Uid Company, the Canal Company's iplainly
Immediate predecessor In Interest, actively
took up the work of completing the canal
and diverting works and proceeded there-
with in good faith and with vigor, relying
upon that decision and the state lioard'e
adjudication, and openly claiming the
amount of water and priority specified in
the latter, and that the other parties with
knowledge of that claim and iltuatton, made
DO claim of superior right to the water, but
remained silent for four years while the
work, which the court described "as eom-
„ parable only to the construction of a rail-
* road," was being carried to completion at
• enormous cost, and the water waa being
diverted and used through the eanaJ in in-
creasing volume. And, having thus passed
upon tike questions of fact, the court said:
"Under these circumstances, and having
this knowledge, it would be contrary to the
plainest principles of equity if piaintifTs
might stand silently by, seeing the defend-
ants engage in sueh a monumental work
under claim of right, and utter no word of
warning aa to their own claims, which, if
eventually established, would deprive de-
fendants of the water which the canal was
built to carry, eondemn the whole enter-
prise to failure, and result in the absolute
loss of the money expended. It would be
manifestly inequitable and unjust to aJlow
the plaintiffs, after ths works were practi-
cally finished and the money expended, to
insist upon daima which, had they been ao-
sorted in good tim^ would at least have
put the defendants upon their guard and
have given them cause to pause and hesi-
tate in their expenditures until ths validly
of their title had been determined." [92
Neb. 1118.]
Concisely stated, ths assignments of error
oompiain that the supreme court infringed
the due process and equal protection pro-
visions of the J4th Amendment, first, by
giving decisive effeet to the state 1>oard's
decision, instead of holding that It was
nade without lawful notice or opportunity
to be heard, and therefore was void, and,
second, by misconceiving or misapplying the
statute and common law of the state in dis-
posing of other questions.
Our jurisdiction is disputed and must b«
considered, as. Indeed, it should be, even If
not challenged. As has been shown, several
questions were presented to the supreme
oourt and all were considered. One was
whether the stats board's decision could
be given any conclusive effect consistently
with the due process and equal protecUon
clauses of the lith Amendmmt, and ait-
other was whether the defense of eatoppd
in pais waa well grounded. Ths first was _
plainly a Federal question and the other as£
-Federal. Both were resolved la •
favor of the canal company. The other
questions, none of which was Federal, may
be put out of view in this connection. Thus
ws are concerned witb a Judgment placed
upon two grounds, one involving a Federal
question and the other not. In sueh situ»-
tlons our Jurisdiction Is tested by inquir-
ing whether the non-Federal ground is inde-
pendent ot the other and broad enough to
austalD the Judgment. Where this is the
case, the Judgment does not depend upon
the decision of any Federal question and we
have no power to disturb it. Hammond
T. Johnst<Hi, 142 U. 8. 73, 78, 3Jt L. ed. 941,
D42, 12 Sup. Ct Sep. 141; Euatis v. Bollea,
160 0. B. SBl, 37 L. ad. 1111, 14 Sup. Ct.
A^iOOglC
ISIO. ENTEEPRISG IRBIQATION DIST. t. FAKUEKS MTTTUAL CANAL CX). 381
Hep. 131; Bena CollBge r. Kentucky, 211
U. 8. 46, B3, 03 L. ed. 81, EG, 29 Sup. Ct
Bep. 33; WELters-Piarce Oil Co. t. Texas,
212 U. S. 112, 116, 63 L. ed. 431, 433, 2S
Sup. Ct. Bep. 227; Gmt, 8. & Co. v. Shu-
non, 223 U. S. 488; SO L. ed. 610, 32 Sup.
Ct Rep. 238; Southern P. Co. y. Schuyler,
227 U. S. SOI, eiO, 67 L. ed. 662, 688, 43
L.K.A.(N.S.) 901, 33 Eup. Ct. Rep. 277. It
hu been to held in euei wliere Uie judg-
ment was rested upon tt Federal grouud
and alio upon an eatoppel. Pierce r, Som-
eriet R. Co. ITl U. 8. 641, 84S, 43 L. ad. 316,
319, IS Sup. Ct. Rep. 64; Lovrr r. SIItst
City Gold A 8. Min. Co. 179 U. 8. 1S6,
45 L. ed. 161, 21 Sup. Ct. Rep. 104, 21 Uor.
Min. Rep. 113.> But where the non-Fed-
eral ground )■ lo interwoven with the other
M not to be an independent matter, or )■
not of anfficient breadth to sustain the
Judgment without mbj decision of tlie other,
OUT jurisdiction Is plain. Bee Mo ran v.
Horikr, 178 U. S. SOS, 208, 44 L. ed. 103B,
1039, 20 Bup. Ct Rep. SSQ; Creewill v.
Grand Lodge, E. P. 226 U. S. 246, 281, 68
L. ed. 1074, lOSO, 32 Sup. Ct. Rep. 822.
And this b true kiso where the non-Federal
ground Is BO certainly unfounded that it
properly may be regarded as eBHentiolly ar-
bitrary, or a mere derice to prevent a re-
view of the deciiion upon the Federal ques-
tion. Leathe *. Thomae, 207 U. S. 63, OS,
62 L. ed. 118, 120, 28 Sup. Ct. Rep. 30;
Vandalia R. Co. t. Indiana, 807 tJ. S. 360,
S67, e2 L. ed. 246, 248, 2B Sup. Ct. Rep.
130. But, where the non-Federal ground
haj fair lupport, we are not at liberty to
inquire whetlier it is right or wrong, but
must accept it, as we do other state de-
cisions of non-Federal questions. Murdoclc
g V. Memphis, 20 Walt. COO, 635, 22 L. ed.
^420, 444; Zuetis v. Bolles, 150 U. S. 396,
* 37 L. ed. 1111, 14 Bup. Ct Rep. 131;*LeBthe
V. Thomas, supra; Arkansas Southern R,
Co. T. German Nat. Bank, 207 U. S. 270,
276, 02 L. ed- 201, 203, 2S Sup. Ct Rep.
78.
It does not, as we think, admit of doubt
that the estoppel In pals is made an inde-
pendent ground of the Judgment. Instead
of being interwoven with the validity of the
state board's adjudication, which is the
other ground. It is distinct from it, and is
so treated in the court's opinion. In talc-
ing up the question of estoppel, as alto in
concluding its discussion of the subject, the
court plainly shows that it is then Indulg-
> See also Sherman v. Qrlnnell, 144 U. S.
198, 202, 36 L. ed. 403, 406, 12 Sup. Ct
Rep. 674; Gillis v. Btinchfield, 16B U. B.
668, 860, 40 L. ed. 296, 296, IS Sup. Ct
Rep. 131; HsJe v. Lawia, 181 U. S. 473, 47S,
480, 46 L ed. 069, 962, 21 Bup. Ct. Rep.
ing an assumption that the other ground U
not tenable. True, the board's proeeedingi
and adjudication are referred t« aa having
some bearing upon the good faith of tlM
Canal Company, and upon the knowled(a
whieh the other parties bad of that com-
pany's claim, but in this the court neither
departs from the assumption indulged nor
confuses the two grounds of the Judgment
Even it invalid, the hoard's proceedings and
adjudication could well have a re&l bearing
upon the matters Indicated.
In view of the facts Iwfor* recited w*
think It cannot be said that the ruling upon
the question of estoppel is without fair
support or so unfounded as to be essential-
ly arbitrary, or merely a device to prevent
a review of the other ground of the judg-
ment We therefor* are not at liberty to
inquire whether the ruling li right or
wrong. And it ma.y be well to add that
the question did not originate with ths
oourt It was presented by the pleadingtt
was in the minds of the partiea when tbt
stipulation was made, and was dealt with
by counsel and court as a matter of obvlons
importance.
It is not urged, nor could It wall be, that,
aa a ground of decision, the estoppel Is not
broad enough to sustain the judgment
Ilie claim that the court, In disposing of
some of the questions, including that of tha
estoppel, mleooneeived or misapplied tha
statutory and CMumon law of tiie atale^^
and thereby infringed Uta dne process *ai*
equal protection *>dauset of the 14th Amend-*
ment, requires but brief notice. The dns
process clause does not take up the laws of
the several states and make all questions
pertaining to them constitutional questions,
nor does it enable tills court to revise the
decisions of the state courts upon questions
of sUte law. Sayward v. Denny, 1S8 V. 8.
180, 186, 39 L. ed. 941, 948, IS Sup. Ct
Rep. 777 1 Central Land Co. v. Laidley, ISS
U. 8. 103, 112, 40 L ed. 91, 04, 18 Sup. Ct
Rep. 80; Castillo r. MeConnieo, 188 U. a
674, SS3, 684, 42 L, ed. B22, 626, 628, 18
Ct. Bep. 229. The questions presented,
other than those relating to the validity of
the state board's adjudication, all turned
exclusively upon the law of the state, and
the state court's decision of them is coi^
trolling. Preston t. Chicago, 226 U. B. 447,
G7 L. ed. 203, 38 Sup. Ct. Rep. 177; 8t
Louis k E. C. Land Co. v. Kansas City, 241
"" ~. 410, 427, BO L. ed. 1072, 1077, 38 Sup.
Ct Rep. 647; Old Colony Trust Co. t.
Omaha, 230 U. B. 100, 116, 67 L. ed. 1410,
1416, 33 Sup. Ct. Rep. 987. The refereuo*
to the equal proteotion clause evidently la
inadvertent for there is no claim of no-
warranted or arbitrary discrimination.
It remits from what has been said thai
A^iOOglC
ST SUFRBME COUBT 8XF0BIXB.
Ooi. 1
the Jvdgmeiit !■ on* wbloli U not open to
nvlew by this court.
WUt ol Ktat rtlmnlMol.
(Ht U. B. US]
CITY OS OWENSBORO, Afft,
OWBNSBOBO WATBK WOREB COM-
PAKY.
Watibs ahd Watke CotraSKB «»18S(8)—
runoBisB or Watbrwobkb Oohpuit-
Tkbu— Lm Of OoBPOBi,Tioif — E)XTKir-
KOIt.
1. A fraDchiflo for tlio corporate life
of the grantee ne l&wlullf extended by k
■ubK<)uent renewal, end not inerelf for Uie
primarj term named in the compaoT'e chtr-
MTi !• what waa given bj a municipal grant
to A TCBterworka comp&nj' purchtiHing e:
btins plant, of the franchue and liceni
Stain tain, complete, and operate w
works in the municipalitj, and to uai ...
Sublic highwa][s for tliat purpose "for and
uring the axiitence of uie eaid oorpora-
tion," where the eonipanj''s charter limited
its corporate life to twenty-flTe year*, "sub-
iect to such extensions of its term of ex-
itence as bj law provided," and the local
law authorized renewals of euch term b;
vote of the itockholders.
EBd. Note.— Tor other oasH. aee Water* and
^aCer Courses. Ceat DlS. I Xl.i
CoBPOBAiioNs «=^37— Tbbu or Bxibtehcb
— BXTKNBIOn.
2. The declared purpose of an amend-
ment to a corporate charter, made
formably to Ey. Qen. Stat. 18SS, chap. 50,
I 7; Ky. SUt. 1903, fj 640, 669, and 674,
to attend the Company's corporate life for
tweuty-flve years, waa not defeated merely
beoanse tiie primary term of twentj-five
years expired on May SI, 1S14, and the
amendment to the charter stated that the
•xteneioQ for another twenty-flve years
would begin "from and after June 1, 1014."
CBd. Note.— Star other esMa, see CoiporatlonB.
Cent. Dtr I 105.]
Watxm ard Watbb Coubseb «=9l88(3)—
PBANcnisG OF Watebwobkb Compaht—
TBBM— PRACTlCAr. COltBTBUCnON.
t. The parties to a municipal grant to
ft newly formed waterworks company of a
fnnchiee "for and during the existence of
the said corporation," made by an ordinance
which accepted the grantee as the successor
of an earlier company in respect of a twen-
lT-flT« gears' contract for hydrant rental
then existing between the municipality and
such other company, cannot be deemed to
have recogniEed that such franchise was for
the grantee's corporate lifs of twenty-ftTe
years, unaffected by any extension of its
corporate existence, merely because subse-
quent ordinances accepted by the company,
reqaeeting the extension of pipe lines, de-
clared that Uie city thereby rented the
hydrants along such extension "for the un-
expired term of the franchise of the said
water company," but the word "franchiae,"
as used in this connection, must be deemed
to refer to the hydrant contract with the
evlisr company, made tor a deflnite tern,
which both parties uodwstood was to ter-
minate in twen^-flve years from its dat&
rSd. Note.— For other colas, lee Waters and
Water CoerMe, Cent Slv. | KT.]
EnoppBL «=>3(2}—Bt Bxoobd — Rcoitai.
IK Pleadihq.
4. A corporation is not estopped to
claim that Its franchise granted ''for and
during the existence of the said corporation"
was extended by a renewal of its corporat*
life beyond the primary term of twenty-flvg
rears for anothsr twenty-fivs years, merely
beeause some years before the primary
period expired It deacribed its franchise in
two suits against the municipality as
granted for a term of twenty-nre year^
where in neither suit was it material wheth'
er the life of the franchise was strictly
limited to that period, or subject to prolong-
ation by an extension of the company'e cor-
porate existence, and such question was not
adjudicated in either suit, and in both
suits the franchise was also described by
the company as granted for "the whole
period of its corporate existence."
"~1, Noto.— For other caaea, see Batoppal.
DU- I I.]
(No. 70.]
APPEAL from the District Court of tha
United States for the WeeUm District
of Kentucky to review a decree enjoining a
municipality from obetmcting and prevent-
ing the maintenance and operation of an
existing waterworks plant. Affirmed.
The facts are stated in the opinion.
Messrs. George W. Jolly, Ben D. RlnBo,
La Vega Clements, and Jolin A. Dean, Jr,
tor appellant.
Uessrs. William T. Bllla and James t,
Sweeney for appellee.
3
Mr. Justice T»n Deranter delivered tha**
opinion of the court:
This is a suit to enjoin the city of Owens-
boro, in the state of Kentuclcy, from ol^
struct ing and preventing the maintenance
and operation of an existing water worka
plant in that city, lie plaintiff relies upon
a Iranchlss from the city which ths latter
insists has ezi^red. In the district court
the franchise was held to be still in loro*^
and the city was enjoined from giving effect
an ordinance and a resolution impairing
the same.
By an ordinance of September 10, 1S78,
the city granted to the Owensboro Water
Company, its enceessora and assigns, the
privilege of constructing and operating
waterworks within ths city, and of using
its public highways for that purpose. In
its 1st section the ordinance described this
grant as made "for the duration of the said
compsny," and in another section expressly
^ic
la topic A KEY.
la all Ser-Numbered DltsMa * Indexaa
• ISIS.
OWENSBOEO T. OWBNSBORO WATER WOBSS ca
82S
" Hmlted it to "twenty-tire jeara'from the
passage of this ordinance." Other pro-
vialons required the water company to lay
and maintain pipe lines in certain Btreeta
with A Are hydrnnt at each street iutersec-
tion, and obligated the city to rent and
pay for the hydrants "for the term of
twenty-five years from Qie passage of this
ordinance." Availing itself of the privi-
lege so granted the water company eon-
atmcted a waterworlra plant in the dty,
and operated the same unUl June 3, 1S8S,
when it sold the plant to the Owensboro
Water Works Company, the plaintiff in this
■ult. This company is a Kentucky corpo-
ration whose original articles of assodation
■tated that its existence waa to begin on
June 1, 1889, and terminate at the end of
twenty-Dva years, "subject to such eiten-
Bions of ita term of existence as by law pro-
vided." On June 3, 188Q, shortly before the
plaintiff's pnrchaaev the city adopted an or-
dinance containing the following provision,
among others:
"See. 1. That in consideration of the pur-
diase by the Owensboro Water Works Com-
pany, of Owensboro, Kentucky, of the water-
works of the Oweneboro Water Company,
the franchise and license are hereby granted
to the Owensboro Water Works Company,
of Oweneboro, Kentucky, and its successors
and assigns, for and during the existence of
the said corporation, to maintain, complete,
and operato waterworks In the city of
Owensboro for supplying the city of Owens-
boro and the inhabitants of said city and
its vicinity with water for public and prl-
Tato purposes, and to use within the pres-
ant and future limits of the city of Owens-
boro, the streets, alleys and other public
highwaya thereof for the purpose of laying,
repairing and taking up mains, serviee
pipes, hydrants, and other apparatus for
the supply of water."
By the £d section the city accepted the
plaintiff "as the successor" of the other
eompajiy in respect of "the contract for hy-
drant rental" then existing between the
lAtj and the other company "as fully as if
snch existing contract had been originally
made" t^ the city with tho plaintiff "with-
out the Interrention" of the other com-
pany; and hy the 3d section the city gave
Ita oonsent to 'the consummation of the
S a^d purchase of the said waterworks."
7 '^le plaintiff accepted the provisions of
(his ordinance, relied upon them in consum-
mat'ig the purchase, and ever since has
maintidned and operated the waterworks
and used the publla highways of the oity
in that connection.
On May 0, 1014, the plaintifTs artleles of
association were amended, oonformably to
the atato law (Ey. Gen. Stat 1888, chap.
S6, g 7; Ey. Btat. ig03, gg S40, S69, ST4),
by adding a provision the declared purpose
of which was to extend the plaintiff's cor-
porato existence for the period of twenty-
five years.
Whether the plaintiff now has a fraa-
dlse from the d^ turns chiefly upon the
construction and effect of the Ordinance of
June 3, 1889. By it the cify then said that
"the franchise and license" to maintain, com-
plete, and operato waterworks In tbe city
and to use Its publle highways for that pur-
pose "are hereby granted to the Owensboro
Water Works Company, of Owensboro,
Kentucky, and to ito auceesBors and
aasigna, for and during the eodatenee of
the said corporation." Now the city
claims, firsts that by the ordinance It mers-
ly assented to the purchase by the plain-
tiff of the rights of the other company
under the Ordinance of 1878; second, that
if a franehiae was granted to the plaintiff,
it was only for the life of the other com-
pany; and, third, that even if a franchise
was granted to the plaintiff for the period
of Its own existence, it was not to endurs
beyond the primary term of twenty -five
years, named in the plaintiff's articles of
association. But none of these claims has
any support in the ordinance. Its tonas
are direct and iU meaning plain. In apt
words Its 1st section not only grants a fran-
chise to the plaintiff, but makes tiie life <rf
tbe franchise coextensive with the plainUlTs
existence; and we find nothing in the wdl-
nance which snggesU that the words fixing
the duration of t^e franchise are to bs taken
as comprehending anything leas than the
full corporate existence of the plaintiff, h
The right to extend its axlstonoe beyond tha^;
primary term was y van by statute and ex-*
pressly reserved in the articles of aasoeia-
tion, and bo It Is T«asanab1e to believe that
had there been a purpose to limit the fran-
chise to Uiat torm it would liave been plain-
ly expressed, aa was done In the ordinanca
of 1878. The reasonable implication from
the Inelnsion of such a limitation in tha
earlier ordinance and ito omissiim from the
later one is that the franchise granted by
the latter was not to be thus limited.
Of the suggesUon that, under this view,
the franchise may be made perpetual by r^
pasted extensions of the plaintiff's corpo-
rate life, it is enough to say that we are
here concerned with but a single extension
already effected, ^e statute permittliv
such extensions may not be In force when
the present twenty-five-year period expires,
and, if it be In force, nothing may b« dons
under it.
Because ths primary term — the lint
twenty-five years — expired Hay SI, 1914,
and the amendment to ths articles of aas»-
A^^OOglC
ttt SUPSEUE CODET BEFORTBE.
Ooi. nm,
datioB stated tl)»t the extenilon for anothtr
twenty-flve yarn would begin "from snd
•iter" Judo 1, lfil4, the Abj InBiats then
wi.a a hiatiu «i Qua 6m.j between th* two
period* uid th&t in eonsequence the exten-
■ion uerer becune effective. Wb are not
iinpreased with this contention. While in
tbe computation of time that begins to run
"from and after" a day named it ia usual to
•zclode that day and begin with the next
(Sheet! V. Selden, Z Wall. 177, 100. IT L.
ed. 822, 82S), this it not done where It will
obTioualy defeat the purpoea of those whose
words are being construed or applied. The
purpose of the amendment was to extend
or prolong the plaintiff's corporate exist-
ence for another twenty-flve years. It was
adopted almost a month in advanee of the
•zpiration of the first twenty-fivs years,
and, notwithstanding the use of the words
"from and after," it shows very plainly
Uiat the second period was to begin where
the firat ended. Of course thoss words were
g, not happily chosen, but as the amendment
J; otherwise makes it certain that the exten-
■ sloQ was to be'effective on and after June
1, 1014, we think the amendment accom-
plished Its purpose and that there was no
hiatus.
By the Ordinance of 1ST8, as before
■hown, the other corapany and the city en-
tered into a contract respectiog firs hy-
drants which was to b« in force for twenty-
flfs years from the date of the ordinance-
One provision of that contract was to the
effect that, if the company should males any
•xtenaions of its pipe lines at the city's re-
quest "during the said term of twenty-flve
years," the city would rent and pay for one
hydrant at each street intersection along
■uch extensions "for the unexpired term of
■aid franchise." By a special provision in
the ordinance of 1889, a« we have seen, the
plaintiff succeeded to the rights and duties
of the other company under that contract
as If it "had been originally made" by the
city with the plaintiff; and this meant that
the succession was only for the unexpired
term of the contract. Acting under the con-
tract, the city, from 1890 to IS9S, adopted
seven ordinances wherein it requested that
particular extensions of the pipe lines be
made by the plaintiff, and declared that it
(the city) thereby rented the hydrants
along such extensions "for the unexpired
term of the franchise of the said M'ater
Company." The plaintiff accepted these or-
dinances and complied with the requests
made in them. The oity now claims that
in what was thus done both parties
plainly recognieed that the franchise
granted to the plaintiff was for a
definite and known term of years, and
«aa not to be affected by any extension of
the plaintiff's corporate existence. But we
think this claim disregards what was in-
tended by the word "franchise" in the seven
ordinances. They not only related to the
same subject sa did the contract of 1878,
which was the maintenance and renting of
fire hydrants, but they closely followed Its
words. That contract was made tar a deS- ^
nite term, twenty-flve years, and twelve 0(5
these had expired wheirthe eeven □rdlnancas*
were adapted. In adopting and accepting
them the parties were not making a new
hydrant contract, but acting under the one
already in existence. It and the plaintiff's
franchise were not coterminous and should
not !» confused. The contract covered the
old hydranta, of which there were many, as
well as the new ones, and was \a expire as
to all at the same time, that is, on Septem-
ber 10, 1903, twenty-five years after the
contract was made. That the city so under*
stood — indeed, that both parties so under-
stood— is affirmatively and clearly all^sd
in the city's answer, from which we excerpt
the following:
"Defendant city says that after the pa^
sage of said [seven] ordinances thecamplaiB-
ant Water Company did lay the mains ra-
quired therein and attach the fire hydrants
as provided In said ordinance and the d»
fendant city paid it rentals in pursuance to
said contract until September 10, IDOS, at
which time the complainant ceased to col-
lect ard the city ceased to pay rentals for
said hydran'.s aa provided In aaid ordinanes
and contracts, and aaid ordinances and con-
tracts were construed to and did expire on
September 10, 1003, and since that date the
city hsa not paid to the complainant any
hydrant rental under any of said rental
contracts, or at sll."
The plaintiff's franchise, as betors showi^
was granted June 3, 1S80, and, of course,
did not expire September 10, 1003. What
did expire on that day was the contract
made September 10, 1878, whereby the dty
agreed to rent and pay for the hydranta for
the term of twenty>fiva years from that
date. It is plain, therefore, that what was
intended by the word "franchise" In the
seven ordinances was thst contract, ^lere
was nothing else to which it reasonably
could refer.
The city further contends that the plain-
tiff is estopped from claiming a franchise^
extending beyond Uay 31, 1014, because tnj^
1003 and 1904, in two suits against theVtJ,*
it described its franchise as granted for a
term of twenty-five years, beginning June
1, 1889. But in neither suit wsa it ma-
teria) whether the life of the franchise was
strictly limited to that period or was sub-
ject to prolongation by an extension oi the
plaintiff's corporate existence; and it la not
,A_^OOglC
1S1&
OWEKSBOKO T. OWiaJSBORO WATEB WOHKS CO.
elaimed that tltta questioit wm Kdjndicaied
In either suit. At th&t timo nine or ten
jtRiB of the primary period still remained,
and there was as yet no occasion to elect or
determine whether the pri7ilege of effecting
an extension would be exercised. Besides,
in both suits the franchise was also de-
scribed by the plaintiff as granted for "the
whole period of ita corporate existence."
Thus no basis is shown tor an estoppel by
conduct or by judgment.
Other objections are made to the decree,
but they are of less merit and do not re-
quire special mention.
Decree affirmed.
Ur. Justice Clarke, dissenting i
Thia case presents for decision the single
but Tery important question whether the
dtjr of Owensboro, Kentucky, by ordinance
passed on June 3, 1BS9, granted to the
Owensboro Water Works Company a fran-
chiae renewable indeflnitely, and therefore in
offeot perpetual, or only a franchise for
twenty-flve years, *Ho maintain, complete,
And operate" waterworks in that city.
A perpetual right to the use of the streets
of a city ia such a serious harden upon a
community that, though very reluctant to
do so, I am impelled by an imperative sense
of duty to place en record my reasons for
concluding that the construction given by a
majority of the court to the grant Involved
in this case is a mistaken one which can be
reached only by violating two rules of con-
struction which this court has repeatedly
declared to express "sound doctrine which
E should be vigilantly observed and enforced."
7 'The facts essential to an understanding
and to a determination of ttae claim made
in the record are as follows:
On the 9th day of September, 187S, a cor-
poration named the "Owensboro Water
Company" was incorporated under the laws
of the state of Kentucky, and, on the next
day, the city of Owensboro granted to that
corporation the right and franchise to con-
struct and operate in that city a water-
works plant, using the streets and alleys in
the customary manner.
Section 1 of this ordinance grants to the
Water Company the right to construct and
operate waterworks within the city "for tk«
duration of tht taid company."
Afer many details as to construction,
service, and rentals of hydrants by the city,
9 13 provides: "The rights, privileges, and
franchises hereby granted to and vested in
said company shall remain in force and elTect
for twenty-five years from the passage of
thla ordinance." Hius it is too clear for
discussion that the expression "for the du-
ration of the said company" In g 1 of this
ordinance of Bept«mber 10, 187S, was
deemed, bot^ by the city granting It and by
the company accepting it, as meaning a
term of twenty-five years.
Hie Water Company constructed a water-
works plant and operated it until the year
1889, when, for the purpose of making
larger capital availaUe, a new corporation,
hearing the name "Owensboro Water Works
Company," was organised, with a charter
which contained in paragraph 6 this pro-
vision: "The time of commencement of the
said corporation is the first day of June, in
the year one thousand eight hundred and
eighty -nine, and it shall terminate fioenty-
five yeart thereafter, tubject to auch eatett-
liont of ita term of existence aa by laio pro-
vided."
On June 3d, 1880, the council of the el^
of Owensboro passed an ordinance, which
was accepted by the new corporation, whichi
after reciting that the new corporation de-^
ured to purchase the waterworks of the oId*r
~~ie, together with its existing contracts for*
ipplying the city and ita inhabitants with
water; that the new company desired ft
grant of a franchise and license "to main-
tain, complete, and operate waterworks in
the city," and that the city should accept
the new company as the successor of the old
to the contracts for hydrant rentals, pro-
ceeds to ordain:
Section 1. That the franchise and licenss
to maintain, complete, and operate water-
works in the city of Owensboro "are hereby
granted to the Owensboro Water Works
Company, and to its successors and assigns
for and dvring tht etnatenoe of aaid eorpo-
BecUon 2. That the new company shall
I accepted by the city "as the successor to
the contract for hydrant rental now exist-
ing between the city of Owensboro and the
Owensboro Water Company as fully as If
such existing contracts bad been original-
ly made by the city of Owensboro with the
said Owensboro Water Works Company,
without Uie intervention of the said Owens-
boro Water Company."
The Kentucky General Statutes of J883,
chap. 66, 9 7, p. G48, under which the Water
Works Company was organized in 13S0, con-
tained this provision:
"Corporations for the construction of any
work of Internal improvement may be
formed to endure for fifty years; thoae
formed for other purposes ahall not eieoeed
twenty-fl'Be yeart in duration; but in either
case they may be renewed from time to
time for periods not greater than was at
first permissible if three fourths of the votet
coat at any regular election held for that
purpose ahaU le in favor of auch renewal."
While the plaintiff in error disputes it,
we eonclude that it is clear tJiat, by ap- i
L',3hz„,,C.(5qgle
87 SUPREME COUBT EEPOBTER.
Oct. Tebu,
propri&te action taken on the Bth of Ma]r,
IQ14, the Water Workg Compaof amended
^ ita articIeB of incorporation b; amending
particle 0 thereof (hereinbefore quoted) so
• that, aa amended, this eeetion* became:
"Tke (ttn« of the commencement of said
ooTporatioit is the firtt day of June,
and it thall lertninals txoenty-fvoe yeart
thereafter, suhjoct to such extension of ita
terma as b; law provided, and eame is n
hj these amended articleH of Incorporati
eattnded for the period of twenty-five yeart
from and after the firtt day of June, lOli."
Since confeBsedl^ the Water Warki Com-
pany is not a corporatioa organized tor the
construction of "any work of internal im-
provement," if we read together the char-
ter of the Water Company dated May 30,
ISBQ, the ordinance of the city of Owena-
boro dated June 3, 18SE), and the statute
of Kentucky, which we have quoted, limit-
big the duration of corporation! ta twenty-
five years, we see that the question for de-
eUion I* narrowed to this, tLc,:
Does the grant to the Water Works Com-
pany of the franchise and license "to main-
tain, complete, and operate" waterworks
"for and daring the eariatence of aatd oorpo-
ralton" confer on the company a franchise
In effect perpetual to use the etreeta of the
city for waterworks purposes, or ia it limit-
ad to twenty-flve years T
The limitation of the grant to the twenty-
flve years "duration" of tha corporation
would be beyond question were it not for
the provision of the charter that the termi-
nation of the life of the company after
twenty-Sve years shall be subject to such
estensions as are provided for by law, and
for tha provision, of the statute quoted
"that they (such corporations) may be re-
newed from time to time for periods not
greater than waa at Arst permissibie,'' —
in this case for an additional twenty-flve
years. The conclusion of the majority of
the court is that this authority given to the
stockholders to renew "tha duration" of the
corporation (a discretionary power which
Is found in the charter, not in the grant,
and which might or might not be exercised)
expanded and extended the expression of the
a grant "during the existence of the corpo-
^ ration" so as to make it aa it it read, "dur-
* ing the eanetenoe of the taid ^corporation,"
and alio for luoh "r«n«ical*" of auch exitt-
enot aa th« alookholdera of fhs eomp<my
way, by appropriate action, favor aome time
in the future, — thereby making the grant in
effect a perpetual one.
The two rules tor the construction of such
grants, which have been reteTred to^ have
been firmly established by decisions of many
courts, but no court has been more definite
and resolute than this court haa beai in the
emphasis with which it has announced and
applied them. These rules are:
(1) As announced by this court most
clearly, and with full consideration of the
authorities in Blair v. Chicago, 201 V. B.
400-183, 60 t. ed. 801-827, 28 Sup. Ct Rep.
427: "It is a firmly established rule . . .
that one who asaerta private rights in pub-
lie property under grants of the oharacter
of those under consideration [city ordi-
nances] must, if he would establish them,
come prepared to show that they have been
conferred in plain terms, for nothing passe*
by the grant except it be clearly stated or
neceeaarilj implied." And the court gives
as the sound reason for this rule that "it
is matter of common icnowledge that grant*
of this character are usually prepared by
those interested in them, and submitted to
the legislature with a view to obtain from
such bodies the most liberal grant of privi*
leges which they are wilting to give. TUa
is one among many reasons why they are
to be strictly construed." And from Cool^
on Conetitutional Limitations is quoted
with approval this statement: "The just
presumption in every such case is that the
state has granted in express terms all that
it designed to grant at alt. . . . This Is
sound doctrine, and should be vigilantly ob-
served and enforced." Continuing to giva
to the rule the emphasis which it so richly
deserves, the opinion continues and quot«i
from earlier decisions of this court, declar-
ing that "any ambiguity in the terms of tha
grant must operate against the corporation^
and in favor of the public, and the corpora-^
tion can'clalm nothing that is not clearly*
given by the law. . . . The principle la
this, that all tighta which are asserted
against the state must be clearly defined,
and not raised by inference or preiump-
tion." The discussion conctudea with tha
statement, quoted from Slidell v. Grand'
jean. 111 U. S. 412, 88 L. ed. 321, 4 Snp. Gt.
Rep. 47B, that it is a wise doctrine because
"it serves to defeat any pnrpoae concealed
by the skilful use of terms, to acoompliah
something not apparent (m the face of tha
act, and thua sanctions only open dealing
with legislative bodlea."
[Z) The aecond rule to which we have re-
ferred finds clear expreflsion in Chicago r.
Sheldon, 9 Wall. 60, 19 L. ed. 694, as fol-
lows: "In cases where the language used
by the parties to the contract is indefluita
or ambiguous, and hence of doubtful con-
struction, the practical interpretation by
the parties themselves Is entitled to great,
if not controlling, influence. The interest
of each generally leads him to a oonstrue-
tion most favorable to himself, and when tha
difference has become serious, and beyond
amicable adjustment it can be settled only
D,at,z.,i-.,'^-.00'^IC
191&
0WEN6B0S0 T. OWEHSBORO WATBR WORKS CO.
])7 the trbitrunent of the k.w. Bat, In u
cxeoutorj contract, uid where iti execution
neceuftrlly invalvu k pimctiekl construc-
tion, if the minds of both puties concur,
there can be no great danger in Uie adop-
tion of it by the oonrt as the true oae."
This rule was approved in terms In TOp-
Ilff -r. Toplia, 122 U. 8. 121, 30 L. ed. 1110,
7 Sup. Ct. Rep. 1067, and it has been re-
peatedly announced as the settled doctrine
at this oourL
Applying these rules in the rererie order
«f their itateniBnt I shall now give my rea-
sons lor concluding that the interpretation
1^ the parties to it of t^e grant under con-
aeration limits it to a life of twenty-flve
The Ordinance of 18T8, In the part of it
assumed by the Water Works Company by
Its acceptance of the Ordinance of 1889, pro-
Q vided that "if entenslons of pipe shall be
JB made by said company during the said term
• of tventy-five years at the m*tanca or re-
fWMf of catd city," the city should be bound
to rent and pay |S0 a year for one
hydrant at each street intersection.
Under tbia provision, beginning on
October 8, 1890 [a little more tiian
» year after the grant was made), and
continuing, certainly as the record shows,
until September 16, 1305, the dty, I^ ordi-
nance, made aeven dittinet iemmdt upon
the Water Works Company to lay addition-
al pipes In the streets, and in each ordi-
nance provided: "The city of Owensboro
hereby rents of the said Water Company
the above named hydrants for ths mieapired
twm of th« franchUet of the $aid Water
Company," and promises to pay, etc. Here
is a plain declaration, seven times repeated,
by the city, the Srst made, as we have
stated, very shortly after the grant was
made, that the city understood that the
grant was not an unlimited or perpetual
me, for it promises to pay only "for the
unexpired term of the franchisee of the said
Water Company." By the acceptance of each
one of these seven ordinances, the Water
Company Jnet as plainly assented to this
oonstmotion of the grant. This Is highly
persuasive against the Water Company be-
cause such construction was so distinctly
•gainst its interest. The record shows that
these ordinances bear dates as follows;
(1) September 6, 1890; (2) FebruaT7 2d,
18D1; (3) November 7, 1892; (4) Decem-
ber 6, 1892; (5) October 1st, 1894; (0)
Hay 7, 1894; and (7) September IB, 189S.
^e most persuasive comment I think
tbat can be made upon this construction of
this grant by both ol the parties to It Is
contained in the last sentence of the quota-
tion we made from Chicago v. Sheldon, su-
pra: *3ut in an executory ooutraot, and
«7
where Its exeeution necessarily involves ft
practical construction, If the minds of both
parties concur, there can be no great dan-
ger in the adoption of it by the court as
the true one."
But much more is to be found In the reo-^
ord as to what the parties — particularly asJJ
to what the* Water Works Company— >*
thought was the term of this grant.
On the 2Ist day of September, 1903, tha
Water Works Company instituted a suit
in the circuit court of the United States for
the eastern district of Kentucky, In im
effort to enjoin the city from Issuing bonds
and spending money for the purpose of con-
structing a municipal water plant, and in
the bill filed in the ease It aUeges that ife
is a corporation, with power conferred upon
It to supply the defendant city and Ita in-
habitants with water "for the fitted period
of twenty-five j/ear* from the d^te of it* in-
ooTporation;" It alleges that the grant to
it was "attended durtnjr the pmod of ite
oarporate emttenoe, a period of tioeaty-fine
yeare from the Ut of June, 1889 j" and that
by the contract created by the ordinance of
June 3d, 1889, as well as by the contract*
existing between the city and the earlier
company, the Water Works Company "ac-
quired and now has conferred upon it and
vested in It the sole and exclusive right,
franchise, and privilege during the period of
tv>entj/'five years from and after Jtaie let,
18S9, to maintain, complete, and operat*
waterworks in the city of Owensboro," cto.
Again it alleges in this bill that the said
contract conferred upon It the exclusive
privilege of furnishing water through tba
hydrants (o the said city for tioenty-fUM
yean from the Ut of Jvne, 1889; that it
has in all things compiled with the require-
ments of the Ordinance of 1880, "and that
it Is ready, willing, and able to continue to
carry out Its said contract and to oonttnue
to perform and do all the things of it re-
quired therein until the eapiration of the
■aid oontroot on June let, 1914." Yet
again it alleges that the olty did by the
ordinance aforesaid (of 1889] make and
enter Into a valid and binding contract
with this complainant, wherein and where-
by an obligation was created on the part
of this complaint to lay pipes, conduits,
and hydrants In and along the streets anda
to fiimieh for the period of twenty-fUae^
yeart from the J«t of^Jume, 1889, water*
for publio and private purposes, etc., and
it solemnly avers that the purpose of tha
city to establish a municipal waterworks
would result In a violation of this contract,
which Is within the protection of ) 10, ar-
ticle 1 of the Constitution of the United
States, which prohibits ths passage ^ any
"law impairing the obligation of c^ntncU.* 1
37 fiUFRBME COURT REPORTER.
Ooi. I^xu,
Thii elaborate bill, filed by the Water
Companj, concludes witli the prayer for
isjunotioD, reetiain[ng the city "from a
ttruoting, equipping, operating, or itw
taining a system of icaterwarka tn aaid oiiy
at any time until after the 1st day of June,
19U."
Thi» bill ie sworn to by the president of
the Water Works Company and aigni&cant-
ly enough is signed by the same counsel
who sign the bill in the pending case.
But the Water Company, continuing of
the same mind ee to the meaning of the
grant under consideration, in a. petition filed
In the circuit court of Daviess county, Ken-
tucky, almost a year later, on the 2'th day
of May, 1004, in a ease in which the com-
pany was seeking to collect rentals for hy-
drants, again alleged that by the grant of
1S8Q the franchise of the company was "e:
tended during the whole period of its co
porate existence, a period of ticenty-fit
yean from and after the lit of June, 18S9,
and that this some ordinance "conferred
upon and vested in It the sole and exclu-
sive right, francliiee, and privilege during
th» period of txceaty-flve yeara from and
ofter June let, 1839, to maintain, complete,
uid operate waterworks in the city of
Owoosboro," etc
In this petition plaintiff specifleally seU
np the ordinances to which we have re-
ferred, calling upon the Water Company to
construct extensions, and which were ac-
cepted by the company, and adds two others
of the same purport, one dated May IS,
18S0, and one July 25, 1000; alleges that in
— each of these the city requested the oom-
S psnj to extend the lines and place hydrants
• "for tht'vnearpired term of the franchise of
thi* petition," and that within sixty days
from the passage of said ordinances it filed
Its acceptance of them with the clerk of the
city.
It ia difficult to Imagine sn interpreta-
tion of a contract by the parties to it more
specific or controlling than is to be found
in the declarations in these court proceed-
ings, made deliberately and under the ad-
vice of counsel.
In the presence of this record I cannot
doubt that it was understood and Intended
in the banning by the untechnical men of
affairs who composed the city council and
by the company that this grant was a limit-
ed one, extending for not to exceed twenty-
five years from June Ist, isae, and that
this conviction continued in the minds of
■11 the parties concerned In it, finding fre-
quent expression in the conduct of business
between them for full fifteen years, certain-
ly until 1004, when the company is found
daiming in the courts that the grant ex-
pired on June 1, 1S14; and therefore I can-
not assent to the concluiion that it is in
effect a perpetual grant of the right to use
the streets of the city, convinced, as I am,
that such result cannot be reached without
doing violence to the rule referred to, so
firmly established by this court, which has
been penetratingly condensed into the ex-
pression, "Show me what men have done
under a contract and I will tell you what
it means." And, I may add, without run-
ning also counter to the decision of this
court in Tennessee v. Whitworth, 117 U. S.
120, 29 L. ed. 830, 8 Sup. Ct. Rep. 646,
in which it is declared that, in construing
contracts springing from statutes, the words
employed are, if possible, to be given the
same meaning they had in the minds of the
parties to the contract when the statute
was enacted.
But, turning now from the interpretation
placed upon this ordinance by the parties
to It, and condDing our attention strictly
to the language used in making the grant,
IcK: us ask ourselves whether It can reason-^
ably be said, upon the facta presented I^JJ
this record, that a franchise'in effect per-*
petual was granted in the streets of the eltj
"in plain terms," "in express terms," with-
out "ambiguity," as is required by the first
of the rules for the construction of sudi
grants, which we have aeen is so fully ap-
proved by this C3urt.
If the pertinent parts of the grant, of the
charter of the company, and of the Ken-
tucky statute, be written together, we ihall
have this paragraph;
Hie city of Owrasboro grants to the com-
pany tiie right to maintain and operate a
waterworks plant during the existence of
that corporation, which existence is declared
in Ita charter to commence on June 1st,
18S0, and to terminate twenty-fiva years
thereafter, subject to sueh extensions as
the law provides, and is also limited by the
state statute, under which It was created,
to a duration of twenty-five years, with the
privilege of renewal for a like period it a
three-quarters vote of its stockholders "shall
be in favor of such reneival."
I cannot doubt that others than skilled
lawyers (and we cannot assume that all <rf
the members of the city council were skilled
lawyers), reading such a paragraph as this,
would understand that the existence of the
life of the Water Works Company, and so
of the grant, was for the declared twm^-
flve year period between Uia "commence-
meat of the Hfe^ of the corporation and
the time when it must "terminate." To
ive tt any other meaning is to magnify
the subordinate proviaioD for a possible ex-
tension of the life of the corporatioo so as
to make that control the definite, specific
clearly expressed limitation of the charter.
,A_.OOglC
1S1&,
OWEHBBOBO t. OWENSBORO WATER WOBES CO.
But speciflo ihoiild alna^i ooatrol general
proTiBions in a oontract nhere tliej conflict)
^-deflnite and clearly exprewed limitationa
■hould domlnata indefinite and discretion-
KTj privileges. To declare this grant per-
petnatly renewable is to make its duration
e dependent upon the diicretion of the grantee
IS corporation, to be exercised twentj-fiTa
* Jean after tlie grant iras mode, and* it is
not diflSeult to conceive of circumstances un-
der which the required three fourths of the
stockholders of the company would not favor
an extension of ita corporate lite, — if, for
instance, its business were a falling one be-
cause of competition with a ci tf -owned
plant, or if the stockholders differed In opin-
ion as to the wisdom of making a possible
Mle of its property. This is a result which
the court should accept only under sheer
coercion — I can designat« it by no milder
term — of the "plain," "express," and "un-
ambiguous" provision in the grant, and
very certainly it is a result which should
not be derived tram ingenious construction
of a narrow and optional clause in the char-
tar of the grantee (not in the grant], which
was probably inserted tor the purpose of
providing for the contingency of a new
grant to the company, to be made at the
expiration of the one for twenty-five years,
rather than in an attempt to automatically
make an extension of that grant. When to
thia it ia adiM that the prorinon for ex-
tending the lift of the aorperation ia not
to be found anyahere tn the ordinance mak-
ing the j^ranf, mhich the coun^Imen had be-
fore them, tut only in the charier of the
eorporatioa and in the itatute of the ttate,
vhioh they prolablj/ never taw, I not only
cannot bring myself to assent to the con-
elusion that, resolving, »a we must, every
doubt in favor of the public, a francliiae
in effect perpetual in the streets of the cit;
was given to the Water Works company "in
plain," "in express," and in "unambigu-
mis" terms, bnt, on the contrary, I am very
clear that the language used In making this
grant limits It, as we have seen that all of
the parties thought that it limited it, to
tha term of twenty-flve years.
This conclusion has been arrived at with-
aot the application of narrow distinctions
to the words used In the charter of the
Water Company and in the statute of Ken-
tucky. But sufficient to turn the case, if it
a be thought a close on^ might very well be
•* found in significant distinctions with *re-
■peot to the words used Id the provision of
the charter of the company, on which the
opinion of the majority of the court tnms,
vis.: that the twenty-five-year limitation so
clearly expressed is "subject to such eiten-
tlone of its terms of existence as by law
provided."
These dlstincUons are, first, that the state
law did not provide for "extensions" of the
corporate existence. The most that can be
said of the law is that It provided a method
by which the stockholders of the eompany^—
not the law — might, in their discretion, "re-
new" the charter for an additional term
after the expiration of the twenty-five-year
period which the law provided for. The sec-
ond distinction Is that the authority to "re-
new" the corporate existence of the com-
pany, given by the statute, becomes in the
charter, as written by the company, "exten-
sions ... by law provided," which gives
to the corporation the advantage which
many courts and writers have found in the
distinction between the right of "extension"
and the right of "renewal" of a contract,
the latter indicating an intention to resort
to a new grant for the future, while the
former contemplates "a prolongation, a
lengthening out," of a grant previously
made. This distinction Is perhaps too subtle
to eerve the ends of substantial justice In
practical affairs, but apparently the au-
thors of the charter which we are consider-
ing tliought it a refinement which it wat
worth their while to lay hold upon. Whalen
r. Manley, 68 W. Va. 328, 69 S. K 843;
Leavitt v. Maykel, £03 Mass. GOO, 133 Am.
St Rep. 323, 8B N. E. 1068, and authorities
cited.
The district court flnda ite conclu^ve au-
thority far holding the grant to Iw^ in
effect, a perpetual one in Oweneboro v. Cum-
berland Teleph. & Teleg. Co, 230 U. S. 68,
G7 L. ed. 138S, 33 Sup. Ct. Bep, 9S8. An
Inspection of the ordinance there oonsidered
shows that there was no attempt whatever
in terms to limit the duration of the grant;
that no reference was made in the ordi-
nance to the life ol the corporaUon to whieh^
the grant was made, and that by expreae<|J
terms the grant ^ declared not to be ex-*
elusive, and Ut be subject to alteration and
amendment. While it Is true that the mem-
bers of this court differed as to the effect
of the provision for alteration and amend-
ment of the ordinance, yet the effect of
these distinctions when grouped together la
such, it seems to me, as to render the de-
cision in that cose wholly inapplicable to an
ordinance such as we are considering here.
It may be that the settled conviction
which I have that no legislator, congreas-
man, or councilman would knowingly con-
sent to grant perpetual rights in publio
streets to a private corporation has so
darkened my understanding that I cannot
properly appreciate the paint of view of
my associates end the reaaous advanced In
support of it; but, however this may be, the
reasons stated in this opinion convinoe me
that the grant under discussion waa not
,A_.OOglC
S7 SDPREMB COURT REPOBTBB.
In effect a perpetnal grant, but wm foi tha
period of twentj-flva jears, whloh expired
on the lit dftf of June, J914.
Hr. Justice Brandels eoneura In tliii
^linion.
Hr. Justice Vaj concurs b this diwent,
upon the ground that, applying the «ell-
•ettled rule ttiat granta of tlia character
bere in question are to be given strict con-
struction, and doubts sa to tlieir meaning
resolved in favor of the public, and ambigu-
ities are to be resolved in like manner, it
is ti7 no means clear that the city intended
to grant to the Wat«r Company a fran-
ctiise for its then corporate life of twentj-
five years and for subsequent renewals
thereof, as the stockholders might deter-
mine; and he is of the opinion that tha
franchise expired at the end of the twenty*
five-year period for which it« chartec pro-
vided when the grant was made.
Ctt V. B. lOO
C. E. GANNON, P)ff. in Err,
D. R. JOHNSTON and WUburn Wdte.
IxDiAHs ^>IS<I)~-AiJ,OTiiENTs— Rssraic-
TIONS on AUINATION — SXJBFLOB LaHDS
nf Pqmbbbion or Ettns.
1. Surplus lands when in the hands of
ba hairs of a Chlclcaaaw allottee, as well as
whan in the ownership of the original al- '
lottea, ara bound by all the restrictions on
alianaiion imposed by g| 15 and 16 of tbs
Gupplamantal Agreement between the Unit-
ed States and &e Choctaw and Chickasaw
Indians, approved by the Act of July 1, 1802
(S2 Stat, at L. 641, chap. 1362), which
f«bid tbe sale of lands allotted to members
of those tribes except as provided in the act,
and make the laud alienable afUr tha is-
auanca of patent, except as to tiie homa-
atead, one fourth in acreage in one year,
one fourth in three years, and the balance
tn five years from the date of patent, with
a proviso that the lands shall not be alien-
able hy the allottee or his heirs at any time
before the expiration of the Choctaw and
Ghidcasaw tribal governmrata for less than
the appraised value.
eM. Nota.— roT other cases, sas Indians, Cant
. f W.]
OouBTa ^=»3MC13) — Ebbob to Statk
'OouBT— ScoFB or Rsvntw— Qdebtioh or
Loojj. Law.
2. A ruling of the highest state court
adverse to the contention that a deed from
an heir of a Chickasaw allottee was cfasm-
sartous does not involve the denial of a
Federal right, so as to ha reviewable in the
Federal Supreme Court on writ of error.
nd. Note.— Tor otlMr cases, sas Courts. Cant
W* I 10«BJ
[No, 181.]
IN ERBOR to tha Supreme Conrt of tha
State of Oklahoma to review a jadgmant
which affirmed a judgment of the Distriot
Court of Jefferson County, in that states
in favor of plaintiffs in an action to re-
cover certain landa originally allotted to a
Chickasaw Indian. Affirmed.
See same case below, 40 Okla. 6M, 140
Pac. 430, Ann. Cas. 19ISD, 622.
The facts are stated in the opinion.
Messrs. H. A. I^ed better, F. M. Adanui
D. M. Bridges, and John Vertresa for plain-
tiff in error.
Messrs. A. O. Craee, V. B, Kennamar,
Charles A. Coakley, Quy Qrean, and Cliaa
Jones for defendants in error.
Mr. Justice Da; delivered the opinion of
tha court:
The case in the state court was b^nn !■
the district court of Jefferson eonnty, Okla*
horns. In ISll, by D, B. Johnaton, against
C. Xi. Oannon, for the recovery of certain^
lands, originally alloted in 1903 to AgnaaS
Wolfe, *a fuIl-blood Chickasaw Indian. Af-*
terwarda, by amended petition, Wilbur*
Wolfa was made a party plaintiff. To this
amended petition answer was filed fay Oau-
noQ, asserting his title, and upon issues b»
Ing made up judgment waa rendered in favor
of Johnston and Wolfe aa to tha "anrplna al-
lotmoit" of said Agnea Wolfa, and of Gan-
non aa to the "homeatead allotmenb" Upoa
writ of error, the auprcma ooort of Okla-
homa afBrmed tha judgment {40 Okla. SSB,
140 Pao. 430, Ann. Caa. 1S16D, S22), and
the case is here upon writ of error to the
last-named court. Hie decision as tn tha
surplus lands is all that Is called In qna*-
tlon.
The lands in controversy were allottad t«
Agnes Wolf^ the certificate o( allotment
bearing date July 7th, 1SD3; the patent waa
nigned by tha governor September 12th,
1906, and approved by thd Secretary of the
Interior October 7th, 1905. Upon her death,
in 1903, the title passed to her brother and
sole heir at law, Wilbum Wolfe, defand-
aut in error here. The auprama court finds
that it fairly appears from tha record that
the allotment was selected In tha lifetinM
of Agnes Wolfe,
Upon October 13th, 1S03, fur a considera-
tion of $1,050, Wilbum Wolfe executed and
delivered to one A. J. Waldock a warrant;
deed for the lands; aeveral tranafers of this
title were made throu^ various perB<ms
and corporations until, on November 30th,
1907, it waa acquired, by warranty dead,
and for a good and valuable consideration,
by C, E, Gannon, plaintiff in error. Sinaa
^»ror otbar cases iss sama taple A KBT-imifBBB In all Ker-Nombarad DlisaU A Indexes
,A_.OOglC
OAKHON T. JOHNSTON.
su
proSta therefrom, either peraonallf or by
kgeuta and tenanti.
Upon January 4th, 1809, Wilhum Wolfe
(xecuted &nd. delivered to D. It. Johnston ■
wftirantj deed for the landa in controversy,
which deed was approved by the county
Judge of Pontotoc county, (Alahoma, on
^Uarch 23d, 1000, and by the Secretaiy of
Htha Interior on July Sd, 1010, in accord-
• anca vlth the lain ol'Congress, and it !■
through this deed that Johnston asserts his
tiUe.
The eorrectneaa of the decision of the
■npreme court of Oklahoma turns upon the
question whether, when Wllbum Wolfe
made his deed to A. J. Waldoek, Wolfe was
oompetoit to convey title to the surplus
lands, It being conceded that the title of
the plaintiff In error was derived through
the grantee In the Waldoek deed.
HiIs inquiry lavolvea a eonslderaUon of
11 11, 12, IS, and 10 of the supplemental
agreement between the United Btataa and
the Choctaw and Chickasaw Indiana, ap-
prove Jtdy lat, ie02 (S2 Stat, at L. Ml,
chap. 1S62). Section 11 provides for allot-
ting to each member of these tribes land
equal in value to 320 acres of the average al-
lottable land, and to each freedman land
•qnal in value to 40 acres of the averege
allottable laud. Section 12 provides that at
the time of ttie selection eaoh member of
the tribes shall designate as a homestead
out of such allotment 160 acres, which ehall
be inalienahle "during the lifetime of the
allottee, not exceeding twenty-one yeare
from the date of certificate of allotment, and
separate certiflcate and patent ^tall leave
for said homestead." Seetiona IS and Ifl
are as follows :
"IG. lAnds allotted to members and treed-
men shall not Im affected or encumbered by
any deed, debt, or obligation of any char-
acter contracted prior to the time at which
•aid land may be alienated under thia act,
nor shall ssJd lauds be sold except as here-
in provided.
"10. All lands allotted to the members of
Mid tribes, except such land as is set aside
to each for a homeetead as herein provided,
shall be alienable after Issuance of patent
as follows: One fourth in acreage in one
year, one fourth in acreage In three years,
and the balance in five years; tn each case
from date of patent: Provided, Tltat such
nland shall not be alienable by the allottee
I^or his heirs at any time before the expira-
* tion of the Choctaw •and Chickasaw tribal
governments for less than its appraised
The provisions of these sections, It seems
to us, lead to Qie conclusion that Congress
Intended to make them binding npon Qui
■urplus lands not only In the lifetime ol
the allottee, but as well during the perioda
muned when the lands might descend as In
this ease to and be owned by a memtKi of
the tribes Section IS is positive In it* re-
quirement that lands allotted to members
shall not be sold except as in the act pro>
vided. Section IS makes the laud alienable
after the Issuance of patent, except as to the
homestead, not Involved here, one fourth Id
acreage in one year, one fourth In three
years, and the balance in &ve years from
the date of the patent, and provides that the
landa shall not be alienable by the allottee
"or hia heirs" at any time before tlie expire*
tion of the Choctaw and Chickasaw tribal
govemments for less than the appralaed
It seems qntte clear that In thua enacting
a statute for ths proteetlon of a dependent
people. Congress Intended to bind Uie aur>
plus lands in the hands of the heirs as well
as when in the ownership of the original
allottee, and to make such land Inalienable
during the periods named. Congress Intend-
ed to prevent improvident sales of the lands,
and distributed the right of alienation over
a period of years, giving the right to aell
at the appraised value and In the quantities
named. In view of the positive provision of
S IS, and its prohibition of alienation e&
eept as permitted in the aet, we tUnk Con:-
greas manifested its intention to make any
other alienation void.
Counsel for plaintiff In error rely very
much in rapport of their contentious upoa
the ease of Mullen t. United States, £24 V,
S. 448, E6 L. ed. 634, 82 Sup. Ct. Rep. 404.
But that case dealt with an allotment of
lands under | 22, where provision Is made
for allotment in the right of a member ol^^
the tribe who has died eubsequently to the^
ratification of the agreemenfand before re-*
celving sn allotjnent. Because of the dif-
ference between S 22 and the other aactions
it was held that there was no restriction
upon the right of the heirs to make the con-
veyance In question.
The later case of Bowling v. United States,
233 U. S. 626, 68 L. ed. lOSO, 34 Sup. Ct
Bep. S68, dealt with restrictiona like those
under consideration now. The Secretary of
the Interior was authorized to make an al-
lotment to each member of the tribe, sub-
ject to the restriction ttiat the land diould
not be subject to alienation tor tba period
of twenty-five years from the date of the ia-
.ce of the patenta, and that the patents
ehould recite in the body thereof that the
land described and conveyed ahould not be
alienated for twenty -five yean from Ita datt^
and tliat any contract or agreemsnt to aell
convey such allotmeuta so patented, en-
,A_.OOglC
S32
S7 SUPKEHE GOUBT RGFOB^EE.
Oor. ItaK,
Ured Into before the explnttlon of uid
term of years, should be null and void. Of
■uch reBtrictions, Mr. Justice Hughes, who
also wrote the opinion in the Mullen Cnae,
speaking for the court, said, at page 536:
"The queetiou, thea, is, whether the re-
striction imposed bj the act of I98B was a
merelj personal one, operative onlj upon
tba allottee, or rsji with the land, binding
hb heirs as welL This must bo answered
by ascertaining the intent of Congress as
Axpreased in the statute. The restriction
was not limited to 'the lifetime of the al-
lottee,' as in Mullen y. United States, 224
U. S. 44S, 463, fiS L. mL 834, 83B, 32 Snp.
Ct. Bep. 494, nor was the prohibition di-
rected against coDVejancea made by the al-
lottee personally. Congress explicitly pro-
Tided that 'the land so allotted' should not
be subject to alienation for twenty-five years
from ths date of patent. 'Said lands so al-
lotted and patented' were to be exempt 'from
levy, sale, taxation, or forfeiture for a like
period of years.' The patent was expressly
to set forth that 'the land therein described
and conveyed' should not be alienated during
H this period, and all contracts to sell or con-
■ T(7*aach land' which should be entered Into
■before the expiration of said term of years'
were to be absolutely void. These reiterated
statements of the restriction clearly define
Its scope and effect. It bound the land for
tbe time stated, whether in the hands of the
allottee or of his heirs."
We think this principle is controlling her^
and that it wse the intention of Congress to
make a restriction which should bind the
surplus lands, whether in the hands of the
original allottee in his lifetime or of his
heirs after the decease of the original allot-
tee during the periods named. The restrio-
ti«i waa upOB Alienation of Um ]anda as'
■noh, and waa not merely personal to the
allottee any more than It was In the Bowl-
In the Act of l&OS, validating convey-
ances made by the members of the Five Civtt
Ued Tribes (34 Stat, at L. 137, chap. 1870).
where It was provided that conveyanoes
made by membere of the Five CIvillxed
Tribes subsequent to selection of allotment
and removal of restrictions, where patent*
thereafter issue, should not be declared in-
valid solely because the conveyance* were
made prior to tho iseuanoe and delivery of
the patents, it was nevertheless provided
that deeds executed or contracts entered
into before the removal id restrictions
should be null and void.
A contention that many InTMtmenta bavo
been made upon a construction of the law
differing from that given In this case by
the supreme court of Oklahoma, and that
such construction and the common under-
standing of the bar have operated to estab-
lish a rule of proper^ which cannot b«
changed, was denied by the supreme court
tft Oklahoma, and rightly ao. The mattars
relied upon were inadequate to overcome
the meaning of the statutory provisions la
question.
A contontlon that the deed from Wolfe t«
Johnston was champertous within the stat-^
ute of the state was considered and decided^
by the supreme court of Oklahoma' in the*
light of its own and other decisions, and the
holding of the court did not, in our opin-
ion, involve the denial of a Federal right
such aa would maks that ruling reviewabia
We think the Federal questions involved
were oorroctly decided, and affirm the Jud^
ment of the Siq>renia Court of Oklahoma.
>v Google
1016.
cut V. e. u«
CHARLES H. BAKER, Algernon 8. Nor>
ton, uid SMttl« Wfttar Frutt Rwltj
Cotnpuiy, Appte.,
Appeal ahd Ebbob «=>1008(1) — Rxvimw
aw Facto— Con CTmaeNT FiNDiNoa.
1. (Joncurrent lindmgs of the two lower
«onrtB as to llie eEitabliBlnnent of a aeoret
tniit will not be disturbed by the Federal
Supreme Court utilcaa dearly Bhown to be
BAKER *. SCEOFIEU).
[Bd. Note.— For otber cmm, ■•• Appaal and
Bmr, C«nt. DU. | SSOO.]
Bahk8 and Bah si no ^=9287(3) — Bxokit-
KB»— Natiohai. Bane— Bbeach or DuTT
— SlCBZT Tbubt.
2. A secret trust reaerred by the re-
«elTer of an Inaolvent national bank in his
own favor when assigning, as sueh reeeiver,
a contract by which the bank undertook to
f'Urchase certain land* Irom the etate, ie
raudulent, and a gross breAch of the recelr-
[Bd. Nots.— For otbn' w«. >h Banks and
BanklDS. Cut. Dig. || lOM-lOM.]
EsTOPPEi. «s59— RxcxiTCB— PBonniro by
Oww WaoHo.
3. A leceiver of an insolvent national
bank, who, acting upon tlie assumption that
the bank owiihI a contract for the purcliase
of certain lands from the state, undertook
to assign sucli contract ostensibly for the
benefit of the bank, under an order of court
iuToked by him, but reserving a seci-et trust
in llie own favor, cannot question tlie au-
thority of the bank to make the purchase,
or of the Comptroller of the Currency to
approve it, or of the court to order its sale.
nCA. Mots.— For other eaass, sm Bstoppsl,
CeoL Dig. gi ut. W.i
Barxs akd Bakkiso «=>28T(4)— NATion-
*!. Barks — Rgckivuu — Laosis —
Kito w IX DOB— Fx at; d .
*. There can he no laches in failing to
bring suit founded upon the acquisition of
property by the former receiver of a na-
tional hank by virtue of a secret trust re-
served in his own favor when assigning, as
•ueh receiver, a contract by which the hank
■uidertook to puichsse certain lands from
Uie etate, until knowledge of this fraudu-
lent transaction, or facts equivalent thereto,
ia brought home to those authorized to act.
tBd. Nou
-FWr other c
Baakloa. Cent. Dtg. It lOgT-UM, 1128, 1121.]
Adtebse PoBSESsioa ^9S4— Golob of Ti-
TLM — Good Faith.
C. The seven years' limitation pre-
•eribed by Rem. A Bal. Code (Wash.)
I TBO, in favor of persons in the actual
and notorious possession of land under
claim of title in good faith, has no applies^
tlon to a former receiver of a national bank
who has acquired title by virtue of a secret
trust reserved In his own favor when assign-
ing, as such receiver, a contract by wbioh
the bank undertook to purcliase certain
lands from the state.
[Bd. NoU.— Pot other csms. sm Adverse Fas-
MsakiD. CanL Dig. H 4SS-K».]
[No. 133.]
APPEAL from tha United States Ciroult
Court of Appeals for the Ninth Circuit
to review a decree which affirmed a decree
of the District Court for the Western Die*
trict of Waahington in favor of the re-
ceiver of a national bank in an action to
establish a trust tn certain real property in
his favor as such receiver, and to compel
a eonreyanee thereof. Affirmed.
See earn* ease below, 136 C. a A. 920,
221 Fed. 32S.
The facta are atated in the opinion.
Ueeara. B. S. Oroascnp and Oomln B.
Shank for appellants.
Uesars. Frederick Bansman, R. P. Old-
ham, and B. C. Goodale fot appellee. ^
* Mr. Justice Day delivered the opinion of*
the court:
This ie an notion by John W. Schofield,
as receiver of the Merchants' National Bank
of Seattle, Washington, insolvent einee ISQS,
against Charles H. Baker, receiver of the
bank from 1896 to 1899, and others, seek-
ing a decree declaring the defendanta to be
holders of certain real property tu Seattle
in trust for the plaintiff, and asking a con-
veyance thereof to the plaintiff.
The property in controversy is block 430
of Seattle tide lands, a tract of some IJ
acres, and the leasehold of the harbor area
lying in front of that block. In conformity
with the provisions of the state law, the
Merchants' National Bank had, prior to ita
failure, made application to purchase these
lands. After the failure and the appoint-
ment of Charles H. Baker, receiver, this ap-
plication was accepted by the State Board
of Land Commissioners, and upon January
12, 18B7, a contract was entered into be-
tween the itata of Waahington and l^e
bank, through the recelrer, by which the
state agreed to sell and the bank to pnr-
cbeee block 430 of Seattle tide lands for^
(1,488, payable in ten annual instalment!,^
•aa Bask* and "subject to all liens for filling, and all taxes*
and aseessments that might be levied or aa-
sessed on the land, and with a forfeiture
clause in caee the hank should fall to pay
any of the amounts, either principal. In*
terest, taxes, or asaessmenta, when the same
should become due and for six months there-
after. Permluion to make this contract
waa obtained by the receiver from the Comp-
troller of the Currency, and thereafter par-
tial payments were made upon the contract.
Upon October 8, 1807, by order of the
United Statee circuit eour^ upon the re-
ceiver's petition to that effect, he was au-
thorized to sell at private sale certain
doubtful personal assets of the defunot
■a teplc A KBT-NDHBBB la aU Xar-Mnmberei Dlgeata A la
,A.^OOglC
87 eUPRElO: COURT BEPOETER.
OOT. TERlf,
bank, aiid thereoftv, B&kcr, u reeelTw,
muigned to 8. O. Bimpeon the contract
above mentloDed for tbe conaideration of
9108.30, the transfer being approved bj the
ComniiBBloner of Public Landa.
The aiBignment authorized the etate of
WaBhiDgton to receive from SimpBon, or
bU asBigna, the performanee of all cove-
nant* and agreemente Bpecifted in the con-
tract to be performed by the bank, and
upon Buch performance to execute to him
a patent for such tide laud. By virtue of
the ownership by Simpson of the contract
to purchase tide lands block No. 430, he
became entitled, under the laws ol the state
of Washington, to the preference right to
lease certain harbor area adjacent and ap-
purtenant to block No. 430. Upon tbe pur-
chase by Simpson of tbs contract to pur-
chase the tide lands, there was Issued to
him by tbe state of Washington a certain
ieaae, desigaated "harbor lease No. ISl,"
covering the liarbor area appurtenant to
the block.
In Maicb, 1899, the oontraet between the
bank and the state of Washington for the
purchase of block No. 430, together with
the harbor lease, was transferred I^ Simp-
ion to Baker la his personal capacity, the
record title continuing in the name of Simp-
^ SOD, On August II, lOOfi, Simpson, acting
^for and on behalf of Baker, assigned the
• contract for the purchase of block No, 430,
together with harbor lease No. 181, to one
Norton, the consideration named being $1.
This aasignment contained the same au-
thorization aa to the patent to ba issued
by the state as was contained in the assign-
ment to Simpson. On October 16, 1905, the
at&te of Washington iaaued to Norton a pat-
ent covering block No. 430, with the excep-
tion of a atrip of land, 30 feet wide, which
had been granted to a railroad company.
In August, 1907, there ^aa organized under
the laws of the state of Washington the
Seattle Water Front Realty Company.
Upon incorporation of this company, Nor-
ton conveyed to it block No. 430, together
with harbor lease No. 181, in payment for
the issue of its capital stock of |2SO,000,
About 9S per cent of the stock was issued
to Baker, or to othera, who held for him.
In April, 1890, and a month after receiv-
ing the aasignment from Simpson, Baker
resigned aa receiver; thereupon A. W.
Frater was appointed receiver. On Febru-
ary 12, 1913, Frater resigned, and the pres-
ent plaintiff waa appointed receiver In hia
atead, and this auit was inunediately begun.
Under this state of facts, tbe district
court entered a decree adjudging that the
assignment by Baker to Simpson was
fraudulent, and waa made for the sole use
and benefit of Baker, anil that tiie aasign-
ment of the contract to the defendant Nor-
ton by Slmpaon, and the conveyance of
Norton to the Seattle Water Front Realty
Company, were null and void. The decree
provided that the Realty Company should
execute and deliver to the clerk of the
court below, for the benefit of the plaintiff,
as receiver, a deed covering its interest la
block No. 430 and the assignment of harbor
lease No. J81, and the receiver was directed
to pay to the clerk of the court, for the
Realty Company, the Bum of $10,977.13, be-
ing the amount of the payment, with inter-^
est, made by the defendants to the state of^
'Washington under the contract for the pur<*
chase of block No. 430, and upon the harbor
lease, and for taxes. 212 Fed. 604. Upon
appeal, this decree was affirmed by the cir-
cuit court of appeals for the ninth circuit.
130 C. C. A. 320, 221 Fed. 322.
Both the district court and ihe circuit
court of appeals found that the aale from
Baker to Simpson was only colorable, and
that Simpson purchased the property for
Baker. Our consideration of tbe evidence
must be governed by the well-settled rule
in this court that, when two courts have
reached tbe same conclualon on a question
of fact, their finding will not be disturbed
unless it ia clear that their conclusion waa
erroneous. Stuart v. Hayden, 109 U. S.
1, 14, 42 L. ed. 630, 043, 18 Sup. Ct. Rep.
274; Baker v. Oummings, 168 U. S. 189,
188, 42 L. ed. 711, 71G, 18 Sup. Ct. Rep.
367; Towson v. Moore, 173 U. S. 17, 24, 43
L. ed. 697, 600, IS Sup. Ct. Rep. 332 ; Hy.
Yu-Tse-Mil-Kin v. Smith, 194 U. S. 401, 412,
48 L. ed. 1030, 1045, 24 Sup. Ct. Rep. 6701
Dun V. Lumbermen's Credit Asso. 209 U. S.
20, 23, 62 L. ed. 603, 665. 28 Sup. Ct. Rep.
335, 14 Ann, Cas. 501; Texaa & P. R. Co.
V. Railroad Commission, 232 U. S. 333, 339,
58 L. ed. 630, 34 Sup. Ct. Rep. 438; Wash-
ington Securities Co. v. United States, 234
U. B. 70, 78, 68 L. ed 1220, 1222, 34 Sup.
Ot. Rep. 72E; GIlsou v. United SUtes, 234
U. S. 380, 383, GS L. ed. 1361, 1362, 34 Sup.
Ct. Rep. 778. The concurrent decisions of
the courts upon the establi aliment of a
trust is a question of faot, which will ba
followed unless shown to be clearly errone-
ous. Brainard v. Buck, 184 U. B. 99, 40
L. ed. 440, 22 Sup. Ct. Rep. 453.
Tbe various defenses urged in the court
below and Involved in the points argued in
this court for the appellants must be con-
sidered, in view of this finding of fact aa
to the nature of the transfer of Baker, aa
receiver, to Simpson.
That the secret arrangement between
Baker and Simpson waa fraudulent and a
gross breach of the receiver's duty is too
plain to require detailed consideration.
Michoud T. Girod, 4 How. 603, 066, 11 L.
D,at,z.d-,.'^-.00'^IC
-1916.
BAKES T. SCHOFIELB.
cd. lOTO, 1009; Magruder r. Druiy, 235 V.
B. lOe, 119, 69 L. ed. Ifil, 156, 35 Bnp. Cb
Eep. 77.
It ia urged that tbe eoatr&ct of purdiBBe
wu ultra Tire* the corpor&t« powen of
th« bulk. Thft eonrt of appckli, in decid-
0 lug this point, referred to the deeiiion* of
" thU court which have held that (AJectioni
* to the panamg of title lu'conTeyances to
national basics, although made in «xcew of
any legal authority given the banlc hj the
law, can onl; be made by the government in
a direct proceeding, and will not defeat the
vesting of the title in the bank when it
takes a conveynnee In good faith, for a
Tftluable coniideration. Union Nat. Bank t.
Matthews, 98 U. S. 021, 25 L. ed. ISS;
National Bank t. Whitney, 103 U. S. SQ,
26 L. ed. 443; Reynolds r. First Nat. Bank,
112 U. S. 406, 28 L. ed. 733, 6 Sup. Ci Rep.
213; Thompson t. Bt. Nteliolai Nat. Bank,
146 U. S. 240, 36 L. ed. 966, 13 Bup. Ct.
Sep. 66) Bchuyler Nat. Bank t. Gadsden,
191 U. S. 4G1, 48 U ed. 258, 24 Sup. Ct
R«p. 129.
But, without questioning th« eorreetness
of this conclusion, we are of opinion that
the authority of the bank to make this pur-
chase, or of the Comptroller to approve of
it, or of the court to order the sale of this
ftsset upon the petition of Baker, aa re-
ceiver, need not nsceesarily be considered
In determining the right to recover in this
proceeding.
Upon the plalneet principlea governing
the relation of the parties here, in view of
the finding that there was a secret trust
In Baker's favor In the transfer to Simpson,
Baker conid not be heard to question the au-
thority hj which he acquired the property
ostensibly for the benefit of hla trust, but
In reality for himself. In breach of his
trust. To sanction this would be to permit
Baker to take advantage of hla own wrong.
It ie not for him to say that he can ac-
quire title in fraud of his trust because the
bank could not legally acquire It, or the
Comptroller approve or the court authorize,
its sale. As the facts are found. Baker
assumed to act upon the understanding that
the hank owned the contract of purchase,
and under an order invoked by him, he un-
dertook to sell it for the benefit of the trnst,
but in reality conveyed it to one who
secretly held it for him. Under such cir-
cumstance*, the trustee can take nothing
by hi* wrongful act, and can be compelled
to restore the property to the authorized
3 representative of the trust aetata.
* 'Plaintiff relies greatly upon Case v.
KeUy, 133 U. S. 21, 33 I., ed. 61S, 10 Sup.
Ct Hep. £16, where certain officers of a
' railroad had proenred oonTeyanoes of lands
Intended to be used In the construction of
the road, and had taken title to themselves
personally, and the railroad waa seeking to
recover the lands, although forbidden by Its
charter to take and hold title to such land*.
In this case, Mr. Justice Miller, speaking
for the court, said i
"We need not stop here to inquire whether
this company can hold title to lands, which
it Is Impliedly forbidden to do by its
charter, because the case before n* is not
one in which the title to the land* in ques-
tion has ever been vested in the railroad
company, or attempted to be so vested. The
railroad company is plaintiff ia this action,
and Is seeking to obtain the title to sneh
lands. It has no authority by the statute
to receive such title and to own such
lands, and the question here Is not whether
the courts would deprive it of sueh lands If
they had been conveyed to it, but whether
they will aid it to violate the law and ob-
tain a title which it has no power to hold.
We think the questions are very different
ones, and Qiat while a court might hesitate
to declare the title to lands received
already, and In the po**eBSion and owner-
ship of the company, void on the prindple
that they had no authority to take such
lands, it Is very clear that it will not make
itself the active agent in behalf of the com-
pany in violating tiie law and enabling the
company to do that which the law forbids."
But the [resent case ia not so. Here the
sUte has parted with its title, end made
the contract to convey to the bank at the
Instance of the receiver, who now seeks to
bold the title for his own benefit, in breach
of his tmst
As to the defense of laches, both courts
below found that the facts show entire want
of knowledge on the part of the present
plaintiff or his predecessor in office of thex
secret arrangenaent by which Baker acquired"
the title to'the contract of purchase. Until*
knowledge of this fraudulent transaction,
or facta equivalent thereto, was brought
home to those authorised to act, there could
be no laches in the failure to proeeeuta the
Nor do we find merit in the oonteuUon
that the seven-year Statute of UmitaUoss
(Rem. t Bal. Code [Wash.] S TS9) In favor
of persons in the actual and notorious pos-
session of lands, under claim of title in good
faith, has any application here. Under the
facts found Baker does not eonte within the
class protected by Oils statute
Other point* are urged, but It Is enough
to say that we find no error In th" decree
of the Circnlt Court of Appeal*, and It !■
.A^^OOglC
336 37 SUPREME COURT REPORTER.
(Ml V. B. in)
WILLIAM R. STAATS COMPAMT and
Title InBurance & Trust Compaji}', Appta.,
Oct. Tebu,
BANKRUPTCT «=456— ClBCTJIT CODHT OF
Appbai-s— Bankbuptct Case.
No appi-al can be token to the Fed-
eral Supreme Court from a decree of & cir-
ouit court of appeals in a suit b; a trustee
in bBiikruptc;r under the Bankrupt Act of
July 1, 1S9S (30 Stat, at L. ce2, chap. G41,
Comp. Stat. 1913, | 9S44), 9 60b, to aet
aside a conveyance from the bankrupt as an
unlawful preference, since the paeaage of
the Act of January 28, 191S (38 Stat, at
Ih 804, chap. 22), making final (except for
a possible review by certiorari), "the judg-
ments and decreea of the circuit courts of
APPEAL from the United States Circuit
Court of Appeals for the Ninth Circuit
to review a decree which reveraed a decree
of the District Court for tlie Southern Dis-
trict of California, diamiuiiift the complaint
in a suit by a trustee in bankruptcy to set
aside a conveyance from the banktrupt as
an unlawful preference, and remanded the
case, with directions to enter judgment in
favor of the complaiaant. Dismissed for
want of jurisdiction.
See same case below, 147 C C. A. 400,
S33 Fed. ei4.
MesBTB. H. W. O'Mclven]', Alexander
Brltton, and Evans Brofvno for appel-
Messrs. Jefferson P. Chandler and W.
g,T. Craig for appellee.
* * Memorandum opinion, by direction of the
court, by Mr. Justice Day:
This is a motion to dismiss the appeal in
ft suit brought originally in the United
States district court for the southern dis-
trict of California by the Security Trust A,
Savings Bank, as trustee in bankruptcy of
the estate of Fielding J, Stilson Company,
against William R. Stoats Company and
Title lasuronce i, Trust Company, the com-
plaint alleging that the Stilson Company
was adjudged a bankrupt on October 24th,
1012; that the Stilson Company made
and delivered to the Title Insurance &
Trust Company a deed of trust for cer-
tain realty, situated In the city of Los Ange-
les, to secure an Indebtedness in the sum of
(3,870, due by the Stilson Company to the
Staats Company; that the effect of this
conveyance was to enable the Staats Com-
pany to receive a greater percentage of its
indebtedness than other creditors of the
same class, and that the conveyance was
made with a view to giving a preference, in
violation of th« Bankruptcy Act, and a de>
cree was prayed declaring the eonveyanca
void and of no effect.
The suit was brought by authority at %
00b of the Bankruptcy Act of 18S8 [30 SUt.
at L. 662, cbi^i. G41, Comp. Stat. 1013, |
9644], On issues made, the case was re-
ferred to a special master, who found tha
conveyance by the Stilson Company to tha
Tile Insurance A Trust Company to have
been made and received as security for an
indebtedness in the sum of (3,870, then due
by the Stilson Company to the Staats Com-_
pany, and that the same was as unlawful^
preference within the meaniug*of the Bank-'
ruptcy Act. Upon exceptions to the mas-
ter's report, the district court overruled
some exceptions and eustaioed others, and
dismissed the complaint. An appeal was
taken to tiie circuit court of appeals for tha
ninth circuit, which court reached the con-
clusion that the conveyance in question was
a preference within the meaning of tha
Bankruptcy Act, reversed the decree of the
district court, and remanded the caee to that
court with directions to enter a judgment
in favor of the complainant. 147 C. C. A.
400, 233 Fed. ei4. Afterwards an appeal
from this decree of the circuit court of ap-
peals was allowed to this court.
We think it is plain that this ^peal must
be dismissed. The decree of the circuit
court of appeals was made final by the Act
of Congress of January 28, 1815 (33 SUt
at L. 804, chap. 22), and the only right
□f review in this oourt Is by writ of certio-
rari. This act provides: "That the judg-
ments and decrees of the circuit courte of
appeals in all proceedings and cases aris-
ing under the Bankruptcy Act and in all
controversies arising iu such proceedings
and cases shall be final, i>ave only that it
shall be competent for the Supreme Court to
require by certiorari, upon the petition of
any party thereto, that the proceeding, case,
or controversy be certified to it for review
and determination, with the same power and
authority as if taken to that court by ap-
peal or writ of error; but certiorari shall
not be allowed In any such proceeding, case,
or oontraveray unless the petition therefor
is presented to the Supreme Court within
three months from the date of such judg-
ment or decree."
Tha language of this aet is very etanprm-
hensive, and embraces procMdinga and easas
^stWar vUier ei
n topic * SMX-MDnn l> an Ker-Nnmbarsd Dif mU * lodeiM
A^iOOglC
BESa T. BEITIBH t AFRICAN BTEAM NAV. CO.
arising under the Bankruptcy Act and
troveraies arising In such proceedings, and
provideB that th« judgments and decrees of
. the circuit court of appeals in such contro-
"reriiea, proceedings, and cases shall be final.
• The cass now under* oonsl deration is a con-
troversy arising in a bankruptcy proceed-
ing. Hewit V, Berlin Mafh. Works, 101 U.
S. 296, 48 L. ed. 036, 24 Sup. Ct Bep. 6D0;
Coder v. Arts, 213 U. S. 223, 63 L. ed. 772,
20 Sup. Ct Rep. 43A, IS Ann. Caa. 1008;
Tefft, W, k Co. V. Mnnsuri, 222 U, 8. 114,
68 L. ed. 118, 32 Sup. Ct. Rep. 67 j Barnes
V. Fanpel, 113 0. C. A. 81 (C. "
a) 192 Fed. 625.
We find no merit in the contention that,
after the passage of the Act of 1015, appel-
late proceedings in this court in such suit*
•a this should continue to be controlled by
the general provisions of the Judicial Code.
This statute manifested the purpose of Con-
greu to relieve this court from the neces-
sity of considering eases of this character,
■xeept when brought here by writ of certio-
rari. Central Trust Co. v. Lueders, 230 U. S.
11, 60 L. ed. 119, 36 Sup. Ct Rep. 1; Shat-
tnck T. Title Quaranty & Surety Co. 230 U.
S. 637, 80 L. ed. 480, 36 Sup. Ct. Rep. 446.
It followa that the motion to dismiss this
appeal for want of jurisdiction must be
granted.
Appeal dismiesed.
(iU D. B. 124)
HANS BERG, Prize Master In Charge of
the Prize Ship Appam, and L. Jl. von
Schilling, Vice Consul of tlie German Em-
pire, Appts.,
BRITISH A AFRICAN STEAM NAVIGA-
TION COMPANY. (No. 660.)
HANS BERO, Priie Master In Charge of
the Prize Ship Appam, and L. M.
Schilling, Vice Consul ol the Oerman
pire. Appta.,
T.
HENRY Q. HARRISON, Master of the
Steamship Appam (No. 722.)
WaM ^»16— VlOlJlTIOIT OF Nbutralttt —
Maeino Nbtttbai. Pokt AsTLtrii roB
PUZK.
1. The neutrality of the United States,
under the principles of international law,
was violated by the action of a belligerent
In bringing a prize captured at sea into a
port of the United States under a prita
crew, for the purpose of laying her up thore
indefinitely.
""L^Nota.-^-Fer otlksr oasaa^ ■•• War, OsnL
dS^i
337
warrant the attempted use of one tt Ita
porta by a belligerent as a placs in which
to store a prize indefinitely, — especially
where no means of taking it out are shown
eioept by augmentation of the crew, which
would be a clear violation of estabJished
rules ol neutrality.
J!*M. No^--For other eua^ sie War, Cant.
Wab «»16— Nedtbauty — Violation—
Maeinq Neutkai, Pobt Abiluu it»
Pbize— Erraer or Tbeait.
3. The bringing of a prize captured at
sea by a German cruiser into a neutral
port of the United States under a prize
erew, for the purpose of laying her up there
indefinitely, was not justified l^ the pro-
vision of art 10 of the Treaty of July 11,
1799 (S Stat at L. 172). with Prussia, that
vessels of war, public and private, of both
parties, shall carry freely wheresoever they
please the vessels and effects taken from
their enemies, without being obliged to pay
any duties, charges, or fees to oIBcers of
admiralty, of the customs, or any others,
and that such prizes shall not be arrested,
searched, or put under legal process when
they come to and enter the porta of the
other party, but may freely be carried out
by their captora to the placea ex-
pressed in their commissions, which the com-
manding officer of such vessel shall be
-ibllged to show.
J^g^ii w-mT'*" """^ °"** "• ^"' "*'•
Wab *=>16— Admibaltt JuBiSDicrion
Violation op Nidtbautt ~
TION.
- ADinBAi.TT JuBiBDicnoir—
T Nkctbalitt— Rbstitutioh
-W PBOCEBDIItaB IK FOBIION
to the private owners of a veaael and cargo
brought into a port of the Ijnited States by
a prize crew of a belligerent nation, for the
Curpose of laying her up there indefinitely,
1 violation of the rights of the United
States as a neutral.
'^il'efrSir'**' '^*' °"^ **• ^"' "*'*'
Wab «=9ia _
Violation o,
—Pendency o.
Pbizb Cooax.
5. The institution in a prize court of
the captor nation of proceedings for the con-
-'""■nation aa a prize of a vessel brought
a port of the United States by a prize
, for the purpose of laying her up
there indefinitely, cannot oust the jurisdic-
tion of an admiralty court of the United
States to order restitution of the vesael and
cargo to the private owners for such a
vjoUtion of the rights of the United States
8 a neutral.
» »
«.l
2. The failure of the United States to
proolBim that its porta were not open to
tlM reoeption of eaptured prizes does not
[Noe. 650 and 722.]
Argued January IG and 16, 19J7.
March 6, 1017.
TWO APPEAI5 from the District Court
of the United States for the Eaatora
I* taple * KBT-NOUBBB 1> aU Xar-NuMrat DUwta « Is
A^^OOglC
37 St;PBEHB COUBT REFUBTER.
Oct. ■
District of Tlrglnift to rerlew decne* for
tli« reatitntion to the pTiVKt« owneri of ft
Tessel And cargo brought Into A port of the
United States in violation of the right* of
the United Statee as a neutral. Affirmed.
See same case below, 234 Fed. 3Se.
The facte are itated in the opinion.
Uessrs. Frederick W. Xjelunann, John
W. CTifton, Norvin R. Lindheim, Robert M.
Hughes, and Walter S. Penfleld, (or appel-
Mesars. Frederic R. Condert, James
K. Synuners, Hotrard Thafer Kingsbury,
Herbert Barry, Floyd Hughes, Ralph James
^BullowB, and Munroe SmiUi (or sppcllees.
• * Mr. Justice Day delivered the opinion of
the court:
These are appeals from the district court
jof the United States for the eastern district
• of Virginia, in two'admiralty cases. No.
650 was brought by the British i. African
Steam Navigation Company, Limited, owner
of the British steamship Appam, to recover
possession of that vessel. No. 722 was 9.
suit fay the master of the Appam to reoover
poaaeasion of the cargo. In each of the cases
the decree whs in (avor of the lifaellant.
!rhe facts are not in dispute, and from
them it appears: That during the existence
of the present war between Qreat Britain
and Germany, on the ISth day of January,
1916, the steamship Appam was captured on
the high seaa by the German cruiser, Moewe.
The Appam was a ship under the British
flag, registered as an English vessel, and is
% modern cargo and passenger steamship of
7,800 tons burden. At the time of her cap-
ture she was returning from the West Coast
of Africa to Liverpool, carrying a general
cargo of cocoa beans, palm oil, kernels, tin,
maize, sixteen boiea of specie, and some
other articles. At the West African port
she took on 170 passengers, eight of whom
were military prisoners of the English gov-
smment. She had a crew of 100 or there-
abouts, and carried a 3-pound gun at the
stem. The Appam was brought to b; a shot
across her bows from the Moewe, when about
a hundred yarda away, and waa boarded
without resistence by an armed crew from
the Moewe. This crew brought with them
two Irambs, one of which was slung over
the bow sjid Ute other over ths stem of the
Appam. An officer from the Moewe said
to the captain of the Appam that he was
•orry he had to take his ship, asked him
how many passengers hs had, what cargo,
whether he had any specie, and how much
ooal. When the shot was fired across the
bowa of the Appam, the captain inatructed
the wireleas operator not to touch the wire-
less instrument, and hia officers not to let
•nyons touch the gun on board. The ofSeers
and crew of the Appam, with the excepttoo^
of the engine room force, thirty-five in num-l
ber, and the second officer, were ordeTed*«n<
board the Uoewe, The captain, officers, and
crew of the Appam were sent below, where
they were held until the evening of the 17th
of January, when they and about 160 others,
officers and crews of certain veasela previous-
ly sunk by the Moewe, were ordered back to
the Appam and kept there as prisoners. At
the time of the capture, the senior officer of
the boarding party told the chief engineer
of tlie Appam he was now a member of the
Cerman navy; if he did not obey orders hia
braioH would be blown out, but if he obeyed,
not a hair of his head should be touched.
The Appam's officer was instructed to tell
his staff the same thing, and if they did
not obey orders they would be brought to
the Qerman officer and sbot. Inquiries were
made by the German officer in command of
the Appam as to revolutions of the engines,
the quantity of coal on hand and the coal
consumption tor different speeds, and in-
structions were given that steam be kept up
handy, and afterwards the engineer was
directed to set the engines at ths revolutions
required, and the ship got under way.
Lieutenant Berg, who was the Qerman of-
ficer in command of the Appam after Its
capture, told the engineer on the second
morning that he was then in charge of the
ship, asked of him Information aa to fuel
consumption, and said that he expected the
engineer to help him all he could, and the
more he did for him the better It would b«
for everybody on the ship. Hie engineer
said be would, and did so. The e:igines
were operated with a bomb seonred to the
port main injector valve, and a German
sailor stationed alongside the bomb with a
revolver. There waa a guard below of (our
or five armed Germans, who were relieved
from time to time, but did not interfere with
the working o( tiie ship. The German of-
ficer. Lieutenant Berg, gave directions as to
worldng the engines, and waa the only officer^
on board who wore a uniform. ^
*0n the night of the capture, the specie in*
the specie room waa taken on board ths
Moewe. After Lieutenant Berg took charge
of the Appam, bombs were stung over her
bow and stem, ons large bomb, said to eon-
tain about 200 pounds of explosive, wa«
placed on the bridge, and several smaller
ones in the chart room. Lieutenant Berg in*
formed the captain of the Appam, pointing
to one of the bombs, "That is a bomb; If
there is any trouble, mutiny, or attempt to
take the ship, I have orders to blow up the
ship Instantly." He also aaid, "There are
other bombs about ths ship; I do not want
to use them, but X shall be compelled to if
thers Is any trouble." ^e bombs were kept
,A_.OOglC
in«.
Bmta T. BBinsH * atbigav stkam nav. ca
in th« position! itatad until t&e (Up
rived at the Virguii« Cspw, when thej n
removed. Lleuten&nt Berg, on reaehtn^
Hampton Boada, askad the crew of the Ap-
pam to drop the anohor, aa he had not men
to doit
During the trip to the veatvard, the of-
flcars and creir of the Appam ware not al-
lowed to *ee the ahlp't cotnpau to aaeertaln
her course, and all ligbta were obieured dur-
ing the voyage, He German prieonera, with
the exception of two who went on board the
Moewe, were armed and placed over
paaaengera and crew of the Appan aa a
guard all the waf acroea. For two dayi
afl«T the capture, the Appam remained in
the vicinitf of Uie Moewe, and then waa
atarted westward. Her course for the drat
two or three days was south wester I7, and
aitentarda westerly, and was continued un-
til her arrival at Uie Virginia Capea on the
3lBt of January. The engine-room staff of
tlte Appam was on duty operating the vessel
aeross to the United States; the deck crew
of the Appam kept the abip dean, and the
navigation was conducted entirely by the
Germans, tiie lookouts being mostly Qennan
prisoners
At the time of the capture, the Appam
^waa approximately diatant 1,S90 miles from
•rEmden, the nearest German port; from the
• nearaat available port, namely *Punehello, in
the Uadeiraa, ISO miles; from Liverpool,
1,460 miles; and from Hampton Boads,
S,061 milea. The ^pam was found t>
in first-class order, seaworthy, with plenty
of provisioDS, both when captured and at
the time of her arrival In Hampton Roads.
The order or commisBion delivered ti
Lieutenant Berg by the commander of the
Moewe is aa follows:
"Information for the American Authori-
ties. The bearer of this, Lieutenant of the
Naval Reserve, Berg, is ^pointed by me to
the command of the captured English steam-
er Appam and has orders to bring the ship
Into ths nearest American harbor and there
to lay up. Kommando 8. M, H, Hoewe.
Count Zu Dohna, Cruiser Captain and Com-
mander. (Imperial Navy Stamp.) Kom-
mando B. U. H. Hoewe."
Upon arrival In Hampton Boada, Lian-
tanant Berg reported his arrival to the col-
lector, and Bled a copy of his instructions to
bring the Appam into the nearest American
port and there to lay up.
On February 2d, his Excellency, the Qer-
man Ambassador, informed the State De-
partment of the intention, under alleged
treaty rights, to stay in an American port
until further notice, and requested that the
crew of the Appam be detained in the Unit-
ad States for the remainder of the war.
The priaonera brought in by the Appam
were released b; order of the American gor-
ernment.
On February ISth, and stzteen days after
the axrival of the Appam Id Hampton
Roads, the owner of the Appam filed the
libel in case No. 660, to which answer wsa
filed on March Sd. On March Ttb, by leave
of court, an amended libel was filed, by
which the libellant sought to recover the
Appam upon the claim that holding and de-
tuning the vessel in American waters was
in violation of the law of nations and the
laws of the United States and of the neu-^
trality of the United States. The answer of«
tha^respon dents to the amended libel alleged*
that the Appam was brought in as a priu
by a priu master. In reliance upon the
Treaty of 1799 between the United States
and Prusna [8 Stat, at L. 102]-, that by
the general principles of international law
the pries master waa ratitled to bring hla
ship into the neutral port under these cir-
cumstances, and that the length of stay waa
not a matter for judicial determination;
and that proceedings had been instituted in
a proper prize court of competent jurisdic-
tion in Germany for the condemnation of
the Appam aa a prize of war; and averred
that the American court had no jurisdiction.
The libel against the Appam's cargo
was died on March 13tb, 181G, and uiawer
filed on March 31st. During the progress of
the cas^ libellant moved the court to sell a
part of the cargo as perishable; on motion
the court appointed surveyors, who exam-
ined the cargo and reported that the parts
so de^gnated as perishable should be sold;
upon their report orders of sale were en-
tered, under which such perishable parts
were sold, and the proceeds ol that sale,
amounting to over (600,000, are now in the
registry of the court, and the unsold por-
tions of the cargo are now in the custody
of the marshal of the eastern district ot
Virginia.
The argument In this case baa taken wide
range, and orally and in printed briefs coun-
sel have discussed many questions which
we do not consider necessary to decide in
determining the rights Involved in these ap-
From the facts which w« have stated, we
think the decisive questions resolve them-
selves into three; First, was the use of an
American port, under the circumstances
shown, a breach of this nation's neutrality
under the principles of international law?
Second, waa auoh use of an American port
justified hy tha existing treaties between
the German government and our owuT
Third, was there jurisdiction and right to
condemn the Appam and her cargo in a
court of admiralty o( the United States! 3
*It la familiar international law that the.
D,at,z.,i-.,'^-.00'^IC
S40
ST SUFREUB COUBT REPOBTEB.
Ooi. Tom,
tiBiia.1 coum after tbe capture of the Appam |
would have been to take her into a German
port, where a prixe court at that nation
might bavs adjudicated her itatua, and, 11
it BO deteriained, condemned the Teasel as a
prize of war. Instead of that, the vessel waa
neitlier taken to a German port, nor to tha
nearest port accessible of a neutral power,
but was ordered to, and did, proceed over a
distance of more than 3,000 miles, with a
view to laying up the captured ship in an
American port.
It ivas not the purpose to bring tbe vea-
sel liere within the privileges universally
recognized in international law, i. e., for
neccf^sary fuel or provisiona, or because of
■tress of weather or necessity of repairs, and
to leave as soon as the cause of such entry
was satisfied or removed. The purpose for
which the Appam was brought to Hamp-
ton Roads, and the character of the ship,
are emphasized in the order which we have
quoted, to lake her to an Americaji port and
there lay Ler up, and in a note from his
Excellency, the German Ambassador, to Uie
Secretory of State, in which the right was
claimed to keep the vessel in an American
port until further notice (Diplomatic Cor-
respondence with Belligerent Govemmenta
delating to Neutral BighU and Duties, De-
partment of State, European War No. 3,
page 331), and a further communication
from the Germnn Ambassador, forwarding
a memorandum of a telegram from the Ger-
man government concerning tbe Appam,
(idem, page 333), in which it was atated:
"Appam is not an auxiliary cruiser, but
a prize, llierefore she must be dealt with
according to article 10 of Pruaso-American
Treaty of 1700. Article 21 of Hague Con-
vention concerning neutrality at sea is not
applicable, aa this convention was not rati-
fied by England and is therefore not binding
In present war according to article 28. The
a above-mentioned article 19 authoriiea a
* prize ship to remain in American porta as
* long as she*pteases. Neither the ship nor
the prize crew can therefore be interned nor
can there be queation of turning the prize
over to English."
In view of these facts, and this attitude
of the Imperial government of Germany, it
is manifest that the Appam was not brought
here in any other character than aa a prize,
captured at sea by a cruiser of the German
navy, and that the right U> keep her here,
as shown in the attitude of the German
government and in the answer to the libel,
waa rested principally upon Qie Fruasiau-
American Treaty of 1709.
The principles of international law recog-
nized by this government, leaving the treaty
aside, will not permit tbe porta of the Unit-
ed States to be thiu used by belligerents.
If sDch use were permitted. It would eon-
stitute of tbe ports of a neutral country
harbors of safety into which prizes, captured
by one of the belligerents, mi^t be safely
brou^t and indefinitely kept.
From the beginning of Its history this
country has been careful to maintain a neu-
tral position between warring go^'e^nmenta,
and not to allow the use of its porta in vio-
lation of the obligations of neutrality; nor
to permit such ose beyond the necesaitlea
arising from the perils of the seas or the
necessities of such veasels as to seaworthi-
ness, provisions, and supplies. Such usage
has the aanction of intematloaal law
(Dana'a Note to Wheaton on International
law, 1866, 8th Am. ed. § 361), and accords
with our own practice (7 Moore's Digest of
International Law, 93ft-938}.
A policy of neutrality between warring na-
tions baa been maintained from 1703 to thli
time. In that year President Washington
Srmly dented the use of onr ports to the
French Minister (or the fitting out of priva-
teers to destroy E]ng1isb comnieTce. Thia
attitude lad to the enactment of the Neutral-
ity Act of 1704, afterwards embodied in the
Act of 1818, enacting a code of neutrality.S
*lrhich, among other things, inhibited the?
fitting out and arming of vessels; tbe aug>
menting or increasing of the force of armed
vessels; or the setting on foot In our terri-
tory of military expeditions; and empower-
ing tbe President to order foreign vessels
of war to depart from our ports, and com-
pelling them BO to do when required by tli*
law of nations. 4 Mooro, Interna.tioaal Ar-
bitratlona, 3067 et aeq.
This policy of the American government
was emphasized In its attitude at the Hague
Conference of 1007. Article 21 of the Hague
Treaty provides;
"A prize may only be brought into a neu-
tral port on account of nDseawortbinesa,
stress of weather, or want of fuel or provi-
"It must leave as aoon «■ the elrcnm-
stancea which juatiSed it* entry are «.t an
end. If it does not, the neutral power muat
order it to leave at once; should it fail to
obey, the neutral power must employ tlio
means at Its disposal to release it with it*
officers and crew and to intern t^ priia
Article 22 provides:
"A neutral power must, similarly, releaae
a prize brought into one of its porta und^
circumstancea other than those referred to
in article 21."
To these article*, adherence was given bj
Belgium, France, Austria-Hungary, Oar-
many, the United States, and a number of
other nations. They were not ratified bj
the British government. Ibis govemmoit
.A^^OOglC
1010.
BEBa T BRITISH A AFBICAN BTEAH NAV. 00.
Ml
refused to bdliere to article 23, whloh pro-
Tidee:
"A neutral power may allow prizo to
enter iti port! and roadstesdt, whether un-
der convoy or not, when they ore brouglit
there to be Hequeetrated pending the deci-
■ion of a prize court. It may have tlie prUe
taken to another of ita porta.
'If tho prize U convoyed by a warahfp,
the prise orew may go on board the oonvoy-
■eing ship.
• * "It the priza la not nndcr convoy, the
prize crew are left at liberty."
And in the proclamation of the convention
the Freeident recited the reBolutlon of the
Senate adherbg to it, Bubjeet to "the reser-
vation and ezcIuBion of Ita article 23, and
with the nnderstanding that the last dauae
of article 3 of the said eonvention implies
the doty of a neutral power t« make the de-
mand therein mentioned for the return of a
•hip captured within the neatral juriidlc-
tion and no longer within that juriadiction."
3ft SUt at L. 2436.
While thia treaty may not be of binding
obligation, owing to lack of ratiflcation. It
ia very perauaaive aa ihowing the attitude
of the American government when the ques-
tion is one of international law; from which
It appears clearly that prizee could only be
brought into our ports upon general princi-
plea recognized in international law, on ac-
eoont of unseaworthiness, strcHs of weather,
or want of fuel or provisions, and we refused
to recognize the principle that prize* might
enter our porta and roadateads, whether un-
der convoy or not, to he sequestrated pend-
ing the decision of a prize court. From the
history of the conference it appears that
the reaaon for the attitude of the American
delegates in refusing to accept article 23
waa that thereby a neutral might be involved
In participation in the war to the extent of
giving asylum to a prize which the belliger-
ent miglit not be able to conduct to a home
port. See Scott, Peace Conferences, IBOQ-
1007, vol. 2, pp. 237 et seq.
Much stress is laid upon the failure of
this government to proclaim that ita ports
were not open to the reception of captured
prises, and it ia argued that, liaving failed
to interdict the entrance of prisee Into our
ports, permission to thus raitei must be as-
Bumed. But, whatever privilege might arise
from this circumstance, it would not war-
MTant the attempted use of one of oor porta
tSaa a place in which to store prisea indefln-
* ftely, and certainly not where no*meana of
taking them out are ahown except by the
augmentation of her crew, which would be
n ele«r violation of established rules of neu-
trali^.
Aa to the contention on behalf of the ap-
pdlanU that article I* ol tba Traa^ of
1T98 [8 Stat at L. 172] juatiSea bringing In
and keeping the Appam in an American
port, in the situation which we have out-
lined, it appears that, in response to a note
from his Excellency, the German Amhassa-
dor, making that contention, the American
Secretary of State, considering the treaty,
announced a different conclusion (Diplo-
matie Correspondence with Belligerent Gov-
ernments, aupra, pages 836 et seq.) ; and wa
think this view la justified by a considera-
tion of the terms of the treaty. Article 19
of the Treaty of 179fi, using the translation
adopted by ths American Stato Department,
reads as follows:
"The Teasels of war, public and private, of
both parties, shall carry [conduire] freely,
wheresoever they please, the vessels and ef-
fects taken [pris] from their enemies, with-
out being obliged to pay any duties, charges,
or fees to ofDcers of admiralty, of the cus-
toms, or any others; nor shall such prizes
[prises] be arrested, searched or put under
legal process, when they come to and enter
the ports of the other party, but may freely
be carried [conduitea] out agiJn at any
time by their captors [le vaisseau preneur]
to the places expressed in their commissions,
which the commanding officer of such vessel
[le dit vaisseau] shall be obliged to shew.
(But conformably to the treaties existing
between the United States and Great Brit-
ain, no vessel [vaisseau] that shall have
made a prize [prise] upon British subjects
shall have a right to shelter in the ports of
the United States, but If [11 eet] forced
therein by tempesta, or any other danger, or
accident of the sea, they [11 sera] sliall be
obliged to depart as soon as possible.)" The
provision concerning the treaties betweenM
the United States and Great Britain la noH
longer*tn force, having been omitted by the*
Treaty of 1628 [S Stat, at L. 378]. Sea
Compilation of Treaties in Forc^ 1004,
pages fl41 and 040.
We think an analysis of this article makes
manifest that the permission granted is to
vessels of war and their prizee, which are
not to be arrested, searched, or put under
legal process when they come into the porta
of the high contracting parties, to the end
that they may be freely oarried out by their
captors to the places expressed in their com-
missions, which the commanding officer Is
obliged to show. When the Appam came in-
to the American harbor she waa not in
charge of a vessel of war of the German
Empire. She waa a merchant veaset, cap-
tured on the high seae and sent into the
American port with the intention of being
kept there indefinitely, and without any
means of leaving that port for another, as
contemplated in the trea^, and required to
b« shown in the ctHnmiasion of the tcmoI
,A_^OOglC
84£
87 SUPREME C0I7BI REPOBTKR.
Oct. Tnif ,
briogliig In th« priM. CeTt&Inly tach hm
of K Deutrol port ia very far from thftt eon-
tanplated hy a treaty which mode provi-
tlon onlj' for temporar; ftaylum for certain
pnrposM, and unitot be held to implf an
IntcDtion to make of an American port a
harbor of refuge for o^tured priEea of a
belligerent goTemment. We cacnot avoid
the condnaioii that In thus making uae of
an American port there vas a clear hreach
of the neutral rights of this government, as
recognized under princlplea of International
law governing the obligatiooi of neutrals,
and that such uh of one of our porta was
In no wise aanctioned b; the Trealj of 17B!I.
It remains to inquire whether there was
jurisdiction and authority In an admiralty
court of the United States, uoder these cir-
cumatanceB, to order restoration to an indi-
vidual owner of the vessel and cargo.
The earliest authority upon this subject
in the decisions of this oourt is found to
the case of Glass t. The Betsy, 3 DalL 6, 1
L. ed. 485, decided in 1794, wherein it ap-
Speared that the commander of the French
E* privateer, The Citizen 'Genet, captured aa
a prize on the high seas the sloop Betsy,
and sent the reBsel into Baltimore, where
the owners of the sloop and cargo filed a
libel in the district court of Maryland,
claiming restitution because the veuel be-
longed to subjects of the King of Sweden, a
neutral power, and the cargo waa owned
jointly by Swedes and Americana. The dis-
trict court denied jurisdiction, the circuit
court affirmed the decree, and an appeal was
prosecuted to this court. The unanimous
opinion was announced by Mr. Chief Justice
Jay, holding that the district courta of the
United States possessed the powers of conrts
of admiralty, whether sitting as an instance
or as a prize court, and sustained the juris-
diction of the district court of Maryland,
and held that that court was competent to
inquire into and decide whether restitution
should be made to the complainants con-
formably to the laws of nations and the
treaties and laws of the UniUd States.
The question came again before this oourt
In the case of Tie Bantlasima Trinidad, de-
cided in 1822, T Wheat. 283, 6 L. ed. 4S4.
In that case It was held tiiat an illegal
capture would be invested with the char-
acter of a tort, and that the original own-
ers were entitled to restitution when the
property was brou^t within oar jurisdic-
tion. The opinion was delivered by Mr.
juattce Story, and, after a full discussion
of the matter, the court held that such an
subject to condemnation and restitution to
the owuera, and the learned justice said :
"If, Indeed, the q[UeatIofl were entirely
new, ft would deserve very grave aoaatd«r»>
tion, whether a claim founded on a viola-
tion of our neutral jurisdiction could be
asserted by private persons, or in any other
manner than a direct intervention of the
government itself. In the case of a capture
made within a neutral territorial jurisdic-
tion, it is well settled that, as between th«S
captora and the captured,* the question can*
never be litigated. It can arise only upon
a claim of the neutral sovereign, asserted in
his own court* or the courts of the power
having cognizance of the capture Itself for
the purposes of prize. And, by analogy ta
this course of proceeding, the interposition
of our own government right aeem fit to have
been required before cognizance of the wrong
could be talcen by our courts. But the prac-
tice from the beginning in this class of
causes, a period of nearly thirty yesra, has
been uniformly the other way; and it ia
now t«o late to disturb it. If any incon-
venience should grow out of it, from rea-
sons of state policy or executive discretion,
it is competent for Congress to apply at Its
pleasure the proper remedy." Page 349.
"Whatever may be the exemption of the
public ship herself, and of her armament
and munitions of war, the prlie property
which she brings Into our ports is liable to
the jurisdiction of our courts, for the pur-
pose of examination and inquiry, and if a
proper case be made out, for restitution to
those whose posseasion has been devested by
a violation of our neutrality; and if the
goods are landed from the public ship in
our ports, by the express permission of our
own government, that does not vary the
case, since it involves no pledge that, if
illegally cp.ptured, they shall be exempted
from the Ordinary operation of our laws,"
Page 364.
In the aubsequent cases In this court thb
doctrine has not been departed from. L'ln-
vincible, 1 Wheat. 238, 2SS, 4 L. ed. SO, 84;
The Eetrella, 4 Wheat. 206, 303-311, 4 U
ed. 674, S7T, S7S; La AmUtad De Rue*, B
Wheat. 3BS, 880, 6 L. ed. lis, 110.
It is Insisted that these cases Involve il-
legal captures at aea, or violations of neu-
tral obligation, not arising because of the
use of a port by sending in a captured ves-
sel and keeping her there in violation of our
rights as a neutral. But we are at a loss to
see any difference In principle between suchS
cases and breaches of neutrality of theV^ar-?
acter here involved in undertaking to make
of an American port a depository of cap<
tured vessels with a view to keeping then
there Indefinitely. Nor can we consent to
the insistence of counsel for appellant that
the prize court of the German Empire haa
exclusive jurisdiction to determine the fate
of the Appam as lawful prize. The f essel
A^^OO^IC
I9id.
ItoDONALD T. UABEB,
wu in an Amerlcftu port, and, under our
practice, within tlis jurisdiction and posses-
■ion of tlie district court, which had aa-
■nmed to determine tha allied violation of
neutral rights, with power to dispose of the
vessel accordioglj. The foreign tribunal,
Under such circumstances, could not oust
the jurisdiction of the local court and there-
by defeat its judgment. Tha Santiuima
Trinidad, supra, p. 36G.
Were the rule otherwise than this court
has frequently declared It to be, onr porta
might be filled, in ease of a g«i*ral war
vuch as la DOW in progress between tbe
European countries, with captured priaea of
one or the other of the belligerents, in utter
Tiolation of the principles of neutral obliga-
tion which have controlled tbis country
from tbe beginning.
The violation of American neutrality is
the basis of jurisdiction, and the admiralty
courts may order restitution for a violation
of auch neutrality. In each eaae the jnrla-
diction and order rests upon the aut}iorlty
of the courts of the United States to make
restitution to private owners for Tiolationa
of neutrality where offending Tssaeia are
within our jurisdiction, thus vindicating
our rigbts and obligations as n neutral
people.
It follows that tha decree in each ease
must be affirmed.
T. A. MABEB.
CoMBirrunoNAi. I<aw ^930B(2)— Dm Fbo-
Otta or Liaw — Pebbokal Judomknt
AoAiRBT Assent DEriNOAHT — Sibtice
BT Pdslicatioh.
A personal jii4gment for money
■gainst a person who has left the state not
Int«nding to return may not, consistently
with due prooesa of law, be rendered upon
aervice by publication In a local newspaper,
and auch judgment la not merely voidable,
but absolutely void.
. [Bd. Not!.— For Dthar casn.
Law. Cent. Die. H >»■ OO.I
IV ERROR to the Supreme Court of the
State of Teiaa to review a judgment
which reversed a judgment of the Court of
Civil Appeals of that atate, reversing a
Judgment of tbe County Court of Lamar
County In favor of deferdant in a suit upon
a promissory note. Reversed.
See same ease below, — Tax. —, 175 B.
W. 878.
The facta are stated In the opinion.
Mr. Henry D. McDonald, in propria
persona, and Mr. A. P. Park for plaintiff la
Mr. Joseph W. Bailey for defendant
Mr. Justice Holmes delivered the opinion
of the court:
This is a euit upon a promissory note.
The only defense now material is that thejj
plaintiff had recovered »* judgment upon*
the aame note in a previoua suit in Texas
which purported to bind tha defendant per-
sonalty aa well as to forecloae a lien by
which the note was secured. When the
former suit was begun, tbe defendant. Ma-
bee, waa domiciled in Texas, but bad left
the state with Intent to establiah a home
elsewhere, his family, however, still resid-
ing there. He subsequently returned to
Texaa for a short time and later establiehed
his domicll in Miasourl. The only aervice
upon him was by publication in a newspaper
once a week for four successive weeks after
his final departure from the state, and ha
did not appear in the auit. The aupreme
court of Uie state held that this satisfied
the Texas statutes, and that the judgment
was a good personal judgment, overruling
the plaintiff's contention that to give It
that effect was to deny tha constitutional
right to due process of law. — Tex. — , 176
8. W. 870.
The foundation of Jurisdiction is physical
power, although in civUiied timea it is not
neceaaary to maintain that power through-
out proceedings properly begun, and al-
though submission to the jurisdiction by
appearance may take the place of serriea
upon the person. Michigsa Trust Co. t,
.Ferry, 228 U. S. 846, 353, 67 L. ed. 867,
B74, 33 Sup. Ct Rep. 560; Pennsylvania F.
Ins. Co. V. Gold Issue Min. k Mill. Co. de-
cided toJay [243 U. S. S3, 61 L. ed. 810, 87
Sup. CL Sep. 344]. No doubt there may be
some extension of the means of acquiring Jn-
riadietion beyond aervice or appearance, but
the foundation should be borne in mind. Sub-
ject to Its conception of sovereignty even
the common law required a judgment not
to be contrary to natural justice. Douglaa
V, Forrest, 4 Bing, 688, 700, 701, 130 Eng.
Reprint, 033, 1 Moore k P. 663, 6 L. J. C. P.
157, 29 Reviaed Rep. 685; Becquet v. Mac-
Cartby, 2 Bam. k Ad. 951, S59, 109 Eng.
Reprint, 1300; Maubourquet v. Wyae, Ir.
Bep. 1 C. L. 471, 481. And In atatea bound
together by a Constitution and subject to
the 14th Amendment, great caution should
be used not to let fiction deny the fair play
that can be secured only by a pretty close
In all Kar-NumbaraA Dl<«sta * Indeue
344
ST SUPBEME COURT REPORTER.
Oct. Tebu,
adhesion to fact. Baker v. Baker, E. i Co.
Jan. 8, 1017 (242 C. S. 304, fll L. ed. 386,
g37 Sup. Ct Hep. 152].
> * Thers it no dispute that aervlce by publi-
cation doM not warrant a personal judg-
ment a^inst a nonrcaident. Pennoyer v,
Neff, D5 U. S. 714, 24 L. ed. 565. Riverside
k D. River Cotton Mille t. Menetee, S37 U.
S. 183, 50 L. ed. 010, 35 Sup. Ct. Rep. 579.
Some language ot Pennoycr v. Neff would
justify tlie extension of tbe same principle
to absent parties, but we shall go no farther
than tbe precise facts of this cast requira.
When the former suit was begun, Mabee, al-
though technically domiciled in Texas, had
left the state, intending to establish hit
home elsewhere. Perhaps in view ol hi*
technical poaition and tbe actual presence of
his family in tbe state, a summons left at
his last and usual place of abode would
have been enough. But it appears to us that
cn advertisement in a local neirspaper is
not sufficient notice to bind a person who
has left a state, intending not to return. To
dispense with personal service the substitute
that is moat likely to reach the defendant
Is the least that ought to be required If Bub-
stantlal justice is to be done. We repeat,
also, that the ground for giving subsequent
effect to a judgment Is that the court ren-
dering it had acquired power to carry it out;
and that It is going to the extreme to hold
such power gained even by service at the
last and usual place of abode.
Whatever may be the rule with regard to
decrees concerning status or its incidents
{Haddock t. Haddock, EOl U. S. 502, 580,
632, 60 L. ed. 867, 800, 895, 28 Sup. Ct.
Rep. 525, 5 Ann. Cas. 1), an ordinary per-
sonal judgment for money, invalid for want
ot service amounting to due process of law,
is as ineffective in the state as it is outside
of it (201 U. S. 667, 66S), It the former
judgment had been sued upon in another
state by the plaintiff, we think that the
better opinion would justify a denial of its
effect. If so, ft was no more effective in
Texas. "Dc la Montanya v. De la Montanya,
112 Cal. 101, 32 L.R.A. 82, 53 Am. St. liep.
165, 44 Fac. 345; Boring T. Penniman, 134
Cal. 614, 66 Pae. 730.
The usual occasion for testing the prin-
Mciple to be applied would be such as we
■ have supposed, where the defendant 'waa
denying the validity of the judgment against
him. But the obligations of the judgment
are reciprocal, and the fact that here the
defendant is asserting and the plaintiff deny-
ing its personal effect does not alter the
case. Whittier y. Wendell, 7 N. H. 257;
Rangely v. Webster, 11 N. H. 291); Middlesex
Bank V. Butman, 29 Mc. 19. The personal
judgment was not merely voidable, as was |
assumed in the slightly different case of
Henderson f. Staalford, 105 Mass, 504, T
Am. Rep. 531, but was void. See Ncedhan»
V. Thayer, 147 Mass. 538, 18 N. E. 429. la
Henderson v. Staniford the absent defendant.
intended to return to his stata.
Judgment reversed.
PENKSIXVAKIA FIRE IKSCRANCE
COMPANY OF PHILADELPHIA, Plff.
CoNBTITUnOKAL I1A.W 4:b30&^) — iNSUl-
AKCB «S610— mnS PBOCEBS OV T,AW -'
Service on Fobeioh Cobpobation -
Cacbk of Action Abuiho Outsidk oi
1. A foreign insurance company wblciv
In compliance with what is now Mo. Rev.
Stat. 1909, 3 7042, had filed with th*
superintendent of tbe state insuranco de-
partment a power of attorney consenting
that service of process upon that official
should be deemed personal service upon th«
company so long as it should have any lia-
bilities ,outBtanding in the state, is not de-
nied the due process of law guaranteed by
U. S. Const. 14tb Amend., merely because
the consent is construed to render such serv-
ice valid in causes of action arising in othM
[Ed. Nale.-~Far other cases, sea ConitUutlnnaV
Law, Cent. Dll. II t». SM.]
Courts «=j394(12)— Ebbob to State CounT
—Statutes — "De.mal of Foll Faith
Asn Cbedit"— Ebrob or Cosstbuction.
2. Something more than a mere error
in contilruing the statutes of a sifter state
is nerc'seary in order to sustain the claink
that tliera has been a denial of the full
faitli and credit to which such statutes,
under U, S, Const, art. 4, % 1, are entitled,
lEd. NaiF.— For otbar dsDnltlons. sm,,^^
__a Pbriiai-. -
ADd credit.]
. Flnl and Sscond S
ea. Full FSltb
IN ERROR to tlie Supreme Court of the
State of Missouri to review a judgment
which affirmed a judgment of the Circuit
Court of Audrain County, in that state, in
favor of plaintiff En a suit on a policy of
fire insurance. Affirmed.
See same case below, 287 Mo. B24, 134 S.
W. 990.
The facts are stated in the opinion.
Messrs. Fred Iferrlngton, Mason A.
I-ewis, James B, Crant, and David H. Rob-
ertson for plaintiff In error.
Messrs. Patrick Henry Cullen, Thomaa
T. Fauntlcroy, and Charles M. Hay for d»-
fendant in error.
M ssma Isffk! * KBT-MUVBBH la all Kaj-Namb«r«d Dliesta « Indaifs
.A^^OOglC
leiS. PENNSYLVANIA FIRE INS. GO. t. GOLD ISBUB UOl. t UILL. CO.
S46
-> * Mr. Justice Holmes delJTered the opla*
iou of the court:
This is s suit upon a, policy of insur&ncB
isaued in Colorado by the defendant, the
plaintiff in error, to the defendant in error,
an Arizona corporation, insuring building!
In Colorado. Tbe defendant insurance com-
pany had obtained a license to do buslnew
in MiesDuri, and to that end, in compliance
with what 1b now Missour] Rev. Stat. IDOS,
9 7042, had ilJed n-ith the euperin ten dent
of the insurance department a power of
attorney consenting that service of proceai
upon the superintendent should he deemed
personal service upon tbe company so
long as it should have any liabilities
outstanding In the state. The present
suit was begun by service upon the super-
intendent. The insurance company set
up that such service was insufficient ex-
cept in suits upon Missouri contracts, and
^that if the statute were construed to govern
• the* present case, it encountered the 11th
Amendment by denying to the defendant
due proceaa of law. Tlie supreme court of
Missouri held that the statute applied and
was consistent with the Conatitution of the
United States. 287 Mo. 624, IBd 8. W. 000.
The construction of the Missouri statute
thus adapted hardly leaves a constitutional
question open. The defendant had executed
* power of attorney that made service on
the superintendent the equivalent of per-
sonal service. If by a corporate vote it
had accepted service in this specific case,
there would be no doubt of the jurisdic-
tion of the state court over a transitory
action of contract. If it had appointed
an agent authoriied in terms to receive
service in such cases, there would be equally
little doubt. Xew York, L. E. t W. E.
Co, V. Estill, U7 U. S. 501, 37 L. ed.
202, 13 Sup. Ct. Rep. 444. It did appoint
an agent in language that rationally might
be held to go to that length. The lan-
guage has been held to go to that length,
and the construction did not deprive the
defendant of due process of law even if
it twik the defendant by surprise, which
we have no warrant to assert. O'Neil v.
Northern Colorado Irrig. Co. 242 U. S. SO,
28, 81 U ed. 123, 37 Sup, Ct. Rep. 7. Other
state laws have been construed in a similar
way; e. g., Bagdoo v> Philadelphia & R.
Coal & L Co. 217 N. Y, 432, L.R.A.1018F,
407, 111 N. E. 1076; Johnston v. Trade
Ins. Co. 132 Mass. 432.
The defendant relies upon Old Wayne
Mut. Life Asso. v. McDonough, 204 U. 8.
8, 51 L. ed. 34C, 27 Sup. Ct. Kep. 236, and
Blmon v. Southern R. Co. 236 U. S. 116,
£9 L. ed. 402, 35 Sup. Ct Rep. 256. But
th« distinctioD between those cases and ths
one before us is shown at length In the
judgment of the court below, quoting a
brief and pointed statement In Smotik v.
PhiUdelphfa ft R. Coal 4 I. Co. 222 Fed.
148,— a statement reinforced by Cardoso,
J., In Bagdon v. Philadelphia & R. Coal ft
I. Co. supra. In the above-mentioned suits
the corporations had been doing business in
certain states without authority. They^
had not* appointed the agent as required*
by statute, and It was held that service
upon the agent whom they should have
appointed was ineffective In suits upon
causes of action arising In other states.
The case of service upon an agent volun-
tarily appointed was left untouched. 23B
U. 8. 120, 130. If ths business out of which
the action arose had been local, it was ad-
mitted that the service would have been
good, and it was said tliat tlie corporation
would be presumed to have assented. Of
course, as stated by Learned Hand, J., in
222 Fad. 148, 151, tliis consent is a mere
flction, justified by holding the corporation
estopped to set up its own wrong as a
defense. Presumably the flction was adopted
to reconcile the intimation with the gen-
eral rules concerning jurisdiction. Lafay-
ette Ins. Co. V. French, 18 Bow. 404, 16
L. ed. 451; Michigan Trust Co. v. Ferry,
223 U. S. 34S, 353, 67 L. ed. 897, 874,
33 Sup. Ct. Rep. 550. But when a power
actually Is conferred by a document, the
party executing it takes the risk of the
interpretation that may be put upon It by
the courts. The execution was the defend-
ant's voluntary act. The Eliza Lines, 190
U. S, 119, 130, 131, 50 L. ed. 115, 120, 89
Sup. Ct. Rep. S, 4 Ann. Cas. 406.
The insurance company also sets up that
the supreme court of Missouri failed to give
full Faith and credit to the public acts of
Colorado. The ground is that one condition
of the policy was that the insured was the
owner in fee elmple of the land under the
insured buildings; that when the plaintiff
bought the land, as it did, it had not taken
out a license to do business in Colorado, and
that the laws of that state forbade the plain-
tiff to acquire any real or personal property
until the license fees should have been paid.
The Missouri court held that it was enough
if the plaintiff had paid the fees and got the
license before instituting this suit. There
is nothing to suggest that it was not candid-
ly construing the Colorado statutes to tbe
best of its ability, and even if it was wrong,
something more than an error of construc-
tion is necessary in order to entitle a partyg
to come here under article 4, S 1. 'Johnson v.*
New York L. Ins. Co. 187 U. S. 491, 400, 47
L. ed. 273, 276, 23 Sup. Ct. Rep. 104; Fin-
ney T. Guy, 189 U. S. 336, 4T L. ed. 830, S3
.A^iOOglC
ue
ST SUPKBMB COURT BEPOBTER,
Oor. Tom,
Sup. Ct. Rep, ESS; Allen v. Allegbuj Co.
196 U. B. 4S8, 434, 466, 49 L. ed. 651, 666,
see, 26 Sup. Ct. Rep. 311; LouiBvllIe ft N.
R. Co. T. Melton, SIS U. S. 30, Gl, 52, 54 L.
ed. 921, 927, 028, 47 L.R.A.fN.S.) 84, 30
Sup. Ct. Rep. 476; WeiteTn Lile Indemnitj
Co. T. Bupp, 235 U. 8. 261, 276, 60 L. ed.
220, 226, 35 Sup. Ct. Rep. 37.
The plaintiff suggeste that the vrhole
controvert is res judicata by rauoo of the
decUion in State ex rel. Fidellt;-Ph(enix F.
InB. Co. T. Barnett, 230 Mo. 103, 143 S. W.
SOI, In which the ingnranee company ia said
to have been one of the relators, and which
followed the daciaion in State ex rel. Pacific
Mut. L. Ins, Co. Y. Grimm, 238 Mo. J35, 143
8. W. 483. It alBO iirgea that the defend-
ant waived any objection it might bare had
to the validity of thia service by appearing
and ple&ding to the merit*. As the facta
hardly appear, and aa the elate court dii-
euued the merits of the case, we do not pass
upon these matters, which, in a diflcrent
itate of the record, might need at least a
few words.
Judgment affirmed.
UNITED STATES, Petitioner,
E. B. HENRY COMPANY et al. (No. 160.1
UNITED STATES, Petitioner,
ES ELLIOTT k COMPANY
161.)
UNITED STATES, Petitioner,
J. WILE SONS 4 COMPANY. (No. 152.)
UNITED STATES, Petitioner,
(No.
UNITED STATES, Petitioner,
WOOD k SELICK et al. (No. 164.)
UNITED STATES, Petitioner,
E. LA MONTAQNE'S SONS. (No. 156.)
UNITED STATES, Petitioner,
UNITED STATES, PeUtioner,
CULLMAN BROTHERS et al. (No. 157.).
UNITED STATES, Petitioner,
a. W. FABER. Inc. (No. 168.)
UNITED STATES, Petitioner,
LOXJIS MEYERS k SON. (No. 159.)
UNITED STATES, Petitioner,
WILLIAM OPENHYM k SONS et aL ( Kow
160.)
UNITED STATES, Petitioner,
FAR£ ft TILFORD. (No. 161.)
UNITED STATES, Petitioner,
SELGAS ft COMPAIv'Y. (No. 162.)
OueTous DomtB «s3ll— Disco nnT—AmB-
ICAIT BOTTOUS— Bgcifbociiy Tbeattes.
The 5 per cent tariff discount given
to merchandise imported in American bot-
toms by the Act of October 3, 1913 (38
Stat, at L. 1B8, chap. 16, Comp. Stat. 1913,
5 5311), 9 IV, J, subaec. 7, with the pro-
Tiso that "nothing in this subsection ^alt
be so construed as to abrogate or in nny
manner impair or affect the provisions of
any treatv concluded between the United
States and any foreign nation," is inopera*
live so long as the present reciprocity
treaties with foreign countries remain in
[Ed. Note.— For otber e«s», tee Costome Du-
Ues, Cant Die | >.]
[Nob. 14t>-162.)
Argued February 25 and 28, lOlS. Re-
stored to docket for reargament March 6,
1916. Reargued February 2, 1S17. De-
cided March 6, 1917.
FOURTEEN WRITS of Certiorari to the
United States Court of Custom* Ap-
peals to review judgments which, on appeals
from the Board of United States Qeneral
Appraisers, sustained the rights of im-
porters to a tariff discount. Reversed.
The facts are stated in the opinion.
Solicitor General Davis for petitioner.
Messrs. James AC. Beck and FrederldE
W. Lebmann for respondents.
Mr. Thomas M. Lane for respondents in
Nos. 149 and 160.
Messrs. Albert H. Washburn, George J.
Puckhafer, and John A. Kratc for respond-
enta in Nos. 160, 161, and 152.
Messrs. Henry J. Webster and John Gl.
Duffy for respondent in No. 153.
Mr. Frederick W. Brooks, Jr., for respond-
enta In Nob. 154 and 169.
m bared DlgesU A IndaXM
.gic
1011
maxED STATES T. M. H. PULASKI 00.
S47
Mr. B, A. Lerett for nepoDdeute la Moa.
ISS knd ISl.
M«Mn. RufuB W. Bprkgue, Jr^ Edwtu^
P. Sfaarretta, and Homer S. Cummiiigg for
itapondenta in Noa. 156 and 162.
MeasTi. Junes h. Gerry and Edwin E.
Wakefield for respondent in No. 167.
Mr. Allan B. Brown for respondent in No.
1Q8.
Mr. William L. Wemple as amlcua curiae.
Messrs. Edvard S. Hatch and Walter F.
„ Welch in I)ehalf of interested importers.
• * Mr. Justice Holmea delivered the opin-
ion of the court:
In these cases the court of customs ap-
peals hoi held that by % IV, J, Bubiec 7, of
the Act of October 3, 1913, chap. 16, SB
Stat, at L. 114, IBS, Comp. Stat. 1S13,
IS 6291, G31], merchandise imported in the
ra^stered vessels of the Unitad Statea, or
in the roistered Teasels of other nations
entitled by treaty to pay no higher duties
than thosa levied upon vessels of tha United
States, is granted a discount of 6 per cent
upon the duties imposed by the act. Fol-
lowing an enactment that, except as othsr-
wise specially provided in the statute, duties
should be levied upon all articles imported
from any foreign country at the rates pre-
scribed in tha schedules, the above-men-
tioned subsec. 7 is as followai "That a
discount of 6 per centum on all duties im-
posed by this act shall ba allowed on such
goods, wares, and merchandise as shall be
Imported in vessels admitted to registra-
tion under the laws of tha United States:
Provided, That nothing in this subsection
shall be ao construed as to abrogat« or in
any manner impair or affect the provisions
of any treaty concluded between the United
States and any foreign nation." More or
lesa complete reciprocity la established by
treaty with nearly all the commercial coun-
tries of the world, and the discount of S
^par centum was extended by the court of
eeustoms appeals to goods imported in ves-
•aels of Belgium, the * Netherlands, Qraat
Britain, Austria-Hungary, Germany, Italy,
Spain, and Japan.
The government contends that while the
nibsection may indicate a reversal of tha
policy of reciprocity that has prevaUed
more or less for the better part of a cen-
tury (Rev. Stat. | 422S, Comp. BUt 1913,
I 7SZ5], It relies upon future negotiations
to make the change effective, and suspends
action while the present treaties remain in
force, sines It could not give the discount to
merchandise In American bottom* alone
without breaking the uumNous treaties to
which we have referred. The argument on
the other side is that the worda of the sub-
section era satisfied by istending tha
discount to gooda tiom tXl Uie treaty
countries; whereas, by the construction con-
tended for by the government, they are
emptied of meaning, or at least of present
effect. We are of opinion that the govern-
ment Is right; and, as the meaning of the
words seems to us to be intelligible upon a
simple reading, and to be fortiQed by the
facts preceding their adoption, we shall
spend no tims upon generalities concerning
the principles of interpretation.
We have a clear opinion as to what the
subsection means if the words are taken in
their natural, straightforward, and literal
sense. It grants a discount only to goods
imported in vessels registered under the
laws of the United States, and conditions
even that grant upon its not alTccting
treaties. There Is a strong presumption
that the literal meaning Is the true one,
especially as against a construction that is
not Interpretation, but perversion; that
takes from the proviso it* ostensible pur-
pose to impose a condition precedent. In or-
der to universalize a grant that purports
to be made to a single class, and to do so
notwithstanding the exprees requirement
of the statute that specitled rates should
be paid. Nobody would express such an
intent in such words unless in a contest of
opposing interests, where the two sides both
hoped to profit by an ambiguous phrasa.S
But the section is*not ambiguous on its face,?
and there is no sufficient ground for creat-
ing an ambiguity from without, when it is
considered that the purpose to favor Ameri-
can shipping was the manifest inducement
for putting the subsection In.
The tariff bill as it first passed the House
granted an exemption in favor of American
shipping without the proviso. The clause
was struck out by the Senate^ and after it
bad been pointed out that such an enact-
ment vould violate many treatiea, there was
a conference which led to the passage of
the subsection In its present form. It seems
to us obviously more reasonable to suppose
that Congress was content to Indicate »
policy to be pursued when poaslble than
that, by circuitous and inapt language, it
enacted that there should be a general dis-
count from the ratea specifically directed to
be charged. That the subsection means
what It Bays and no more seems to us still
plainer when it is considered that, with-
out going into nice calculations, tlie bote-
flt to American shipping of such a general
discount would be at least problematical
and certainly would be relatively small. A
grant In present terms, subject to a con-
dition precedent, is familiar to the law, and
is not unknown in grants of tlie present
kind. Dunlap v. United SUtee, 173 U. S.
06, 43 L. ed. SIS, 10 Sup. Ct B^. 319.
D,at,z.d-,.'^-.00'^IC
348
17 SUPRBME COURT REPOBTEK.
Oct. Tsaif,
Here waa aome dlBcUBBion at the bar and
In the court below upon tha questloa wheth-
er the treaties operated aa lawa or were
simply executory contracta, but it aeems to
ns superfluous. If the statute bore tha
meaning' attributed to It below, it granted
the discount to the nations having treaties
of reciprocity, even If those treaties wers
oifly contracts. As, in our opinion, the
subsection means what it says, it grants the
discount to none.
Judgments sllowing the discount of 6 per
centum reversed.
Mr. Justice Daj ia of opinion that the
statute was interpreted correctly by the
Court of Customs Appeals, uid therefore
dissents.
FRANKLIN K. LANE, Secretary of the
Interior of the United States, and Clay
Tstlman, Commissioner of the General
Land Olliee of the United Statea.
United States «:»12B— IwKnmrx fbom
Suit— Sun against OrncBRa.
The state of New Mexico cannot
maintain in the Supreme Court of the Unit-
ed States a bill against the Secretarv of the
Interior and the Commissioner of the Gen-
eral Land Oflice to establish the state's
asserted title in fee simple to certain lands,
under the School Land Grant Act of June
21, ISDB (30 StaL at L. 484, cbap. 460),
and to reetrain the Interior Department
from disposing of such lands, where there
ta a question involved as to whetiier that
statute had the quality as a, grant of ths
land ai^serti!(I of it, whether because of itself
or because of its terms or their prior con-
struction tnd its adoption, — indeed, wheth-
er there was such a prior construction or
its adoption, — and a question of the fact
of the character of the land at the time of
the grant, and the evidence of It and the
knowledge of it, since these are questious
of law and fact upon which the United
States would have to be heard.
[Sd. Note.— For Dtber caoei, sM United States,
CsDL Dlf. fl UI, U4.]
[No. 20, Original.!
OBIQINAL BILL filed by tha 8Ut« of
New Mexico against the Secretary of
the Interior and the Commissioner of the
General Land Oflice to establish the state's
asserted title to certain lands under the
school land grant, and to restrain the In-
terior Department from disposing of auch
Unda. Diamissed for want of Jurisdiction. | eral of New Mexico November ,.,
The facts are stated in the opinion. a township plat duly Bled in the local
AsPor otUsr cassa bm *ama topic A KST-NUHBBB In aU Ker-Numbend Dlsasls A Indaxw
Mr. Barrey H. Friend and Mr. Frank
W. Claney, Attorney Oaneral of New Mexi-
co, for complainant.
Solicitor General Davis and Mr. B. W.
Williams for defendant.
• Mr. Justice McKenna delivered the opin-
ion of the court:
Bill for injunction, In which the state of
New Mexico asserts title in fee Himple to
the 8. W. i of the N. E. i of section 18,
township 16 N., E. 18 W., Now Mexico
principal meridian, under the school land
grant of June 21, 1898, and prays to re-
strain the Interior Department from is-
suing a patent therefor to one Keepers.
The bill exhibits the grounds of suit as
follows:
Br I 1 of an act approved June 21, ISnS,
30 SUt. at L. 484. chap. 460, there wer»
granted to the territory of New Mexico sec-
tions 16 and 36 in every township in tha
state for the support of common schools.
If such sections should be mineral, other
lands were to be granted in lieu thereof, to-
be selected as provided in other sections of
ths act.
Section 6 of an act approved June 20,
1910, 36 SUt. at L. 657, 561, chap. 310,
which was on act to enable the people of
New Mexico to form a constitution and
state government and he admitted into the
Union, granted, in addition to sections 10
and 30, sections 2 and 32 in every township
in the proposed slate, not otherwise ap-
propriated at the date of the passage of the
act. This grant also was for the support
of the common schools.
It was provided in g 10 that such Isnds
and those tlieretofore granted were "ex-
pressly transferred and con Armed to the
said state," and should "be by the state
held in trust," etc.
By S 12, except as modlfted or repcaledj
by the act, all'grantg of lands were ratified'
and conflrmed to the state, subject to the
proviaions of the act.
On January 6, 1B12, New Mexico was ad-
mitted to tha Union on an equal footing
with the other states, and became and is
the beneAcIary of the school land grant
of June 21, 1808. Such grant had been
held a grant in prtesenti, under which abso-
lute title in fee to all sections 16 and 30
in the territory which were at that date
Identified V>HBed to the territory at tha
date of the approval of the act, unless
known to be mineral, and no eertincate or
patent was necessary to psss such title.
Township 15 N, of R. 13 was surveyed by
the United States government in 1881. Tha
survey was approved by the surveyor gen-
s
BDd
.gic
lOlS.
NEW MEXICO T. LANS.
849
office, «nd tha Und bMame subject to il»-
powl Julj 21, 1B82, which «u manj jttta
prior to th« gTtnt of June El, 1SS8.
Section 16 was not diapoKd of or other-
wite reseired, and therefore passed to the
territory by the grant of June 21, 1S98, and
the land described above was not at that
time known to be mineral in character, and
was not then known coal land under the
interpretation of the coal-land law which
had uniformly prevailed, In that at such
date there had been no attempt on the part
of anyone to discover or develop coal upon:
it, and no coal had been produced or ex-
tracted therefrom until 1911, thirteen years
after the title in fee had veated in tLe ter-
Tho decision of the Department and of
the Supreme Court (thie court) was that
land could not be hdd to be "known coal
land" unless there had been a mine opened
thereon and an actual production of coal
io Buch quantity as to make the land more
valuable on that account than for other pur-
poses, and that such construction had be-
come a rule of property, and title vested
under it could not be devested by a change
gof construction.
• *The construction was known to Congreas
when it passed the Act of June 21, 1B98,
was adopted by it when it enacted that act,
and became the rule of construction for the
future administration of tlie land, and tlie
acceptance of the grant l>ecame an executed
contract Ijetween the territory and the
Uoited States, to be conatrued end inter-
preted as then understood. Notwithstand-
ing, the Commissioner of the General Land
Office and the Secretary of the Interior have
decided that a locator on the land, whose
claim was filed in ISll, ia entitled to have
a patent for the tract above described, and
they are about to luue a patent to him.
On May 12, IBll, one George A. Keepers
flled in the local land office at Santa Fe,
New Mexico, a coaJ declaratory statement
under g 2348, Rev. Stat. Comp. Stat. 19J3,
S 4660, for tlie land In controversy, and
three days thereafter he applied to pur-
chase the same as coal land under § 2347,
Kav. SUt. Comp. Stat. 1013, J 4S5D, and
publication of notice thereof, as provided by
the mining laws and regulations of the In-
tarlor Department, waa duly had, begin-
ning May 10, 1011, and ending June 18,
ISll.
Within the period of pablicatioti protests
were filed against the application, and the
territory of New Mexico intsrrened, claim-
ing the land under the Act of June 21,
1808, on the ground that It waa not eoal
land at tiie date of the grant. A hearing
waa allowed to determine the land's ebar-
It Is conceded that the Commissioner of
the General Land OfBce bad the right and
authority to determine the question whether
the land was known coal land at the date
of the grant of June 21, ISOS. Neverthe-
less in such determination tliat ofBcial waa
restricted to ascertaining the single fact
whether, at the date of the grant, a mine
had been opened on the land or coal pro-
duced therefrom, and this was the sole quea-
tion that he could invcst[gati>. But, not-
at the date of the hearing; which i
excess of his authority.
At the hearing by the local land office,
testimony was taken, largely addressed to
the geological condition of the land, and no
testimony was adduced showing that any
coal had ever been produced or extracted
from the land prior to the date of the Act
of June 21, 1S9B, or for many years there-
after and up until 1011. Nevertheless It
was deoided, upon developments ntade sub-
sequently to that date and on other mat-
ters subsequently occurring, including the
subsequent classic cat ion of (he land as coal
land by the Geological Survey of 1907, that
the land contained coal at the date of act,
and was for that reason known coal land at
that daU.
Upon appeal the ruling of the local offi-
cers was aflirned by the Commissioner and
subsequently by the First Assistant Secre-
tary of the Interior. There was no finding
in his decision tliat the land was of known
coal character at tlie date of the granting
act, and the only fact relied upon was that
certain "diacloaures" «oic, not (ften, indi-
cated that the Black Diamond coal bed un-
derlay a portion of the tract, wUicli, even
if known, would not, under the law as then
conatrued and interpreted, have rendered
the land known coal land. The decision,
therefore, was purely arbitrary.
The state duly flled a motion (or rehear-
ing, which waa denied, and the decision pro-
mulgated, and the local officers directed to
issue a final certificate to Keepers.
The bill avers "that when said final cer-
tificate shall be issued, as It undoubtedly
has been, end upon its receipt at the Gen-
eral Land Office, the officials thereof, fol-
lowing the regulations of the Interior De-
partment In such cases made and provided,
will at onc« proceed to issue a patent to
said Keepers, for said S. W. i of the N.
E. i ot said section 16, unless restrained by
thia honorable court in the meantime, which*;
said tract ia owned by and belongs "to your>
orator as a part of its school-land grant
which was vested immediately In fee in the
territory of New Meiico, at the date of said
school-land grant of June 21, ISOS, to which
,A_iOOglC
sso
37 SUPBBME COUBT EEPOBTER,
Oct. Tmc,
right and title tout orator has BUDeeeded,
aa aforeeaid, and audi patent, if luued to
said Keepers, will be a cloud upon the title
of your orator to said tract, being an at-
tempt, unlawfully, to deprive your orator
of its title in fee eimple thereto."
It ia prayed that the Secretary of the
Interior and the CominiaBioner of the Gen-
eral Land Office be aubpienaed to appear
and answer the bill, but not under oath;
that it be decreed that the title immediate-
ly vested in the territory of New Mexico at
the date of the Act of June 21, 189S, and
has become vested in tlie state as the suc-
ceBBor of the territory; that the Secretary
and CommisBioner have not had, since tlie
date of the act, or now bave, authority to
interfere with the state's title, and tliat
thej be enjoined from executing their or-
ders and deciaiou. General relief ia also
prayed,
A motion to dismiss the bill is made on
the grounds: (1) The United Slates is a
neceBBarr party because it appears the title
to tbe land involved is in the United States,
and that it ia the purpose of the defendants
to dispose of the land in accordance with
the provisions of the mineral land laws of
the United States, and that if the defend-
«^ta be enjoined from executing auch pur-
pose the United States would be deprived
3f the purchase price of the land. (2) It
appears from the bill that the state has no
title or interest in the land because it was
known coal land at the date of the passage
of tbe Act of June 21, 1898, and was not
intended to be granted nor granted to the
territory of New tiexieo by that act nor
any subeeguent act. (3) That complete
inquiry was made by the officers of the
Land Department, and they found the fact
to be that at the date of the act the land
^was known to be valuable for mineral pur-
■ poecs. (4) It 'appears that one Keepers
had purchased tbe land and therefore was
an indispensable party. (6) The bill ia
in other reepects uncertain, informal, and in-
suCHcJent, and does not state facte sufficient
to entitle the state to an; relief.
The motion should be granted on the
ground that tlie suit is one against the
United States, under tlie authority of
Louisiana v. Garlield, 211 U. S. TO, 63 L.
ed. 92, 20 Sup. Ct. Bep. 31. In that case
a bill ivas brought in this court to establish
the title of the etate of Louisiana to cer-
tain swamp lands which it claimed under
the etatutea of the United States, and to
enjoin the Secretary of the Interior and
other officers of the Land Department from
carrying out an order making different dis-
position of the land.
Under the statute, it was contended, tlie
land vested in the state in fee simple) that
la, tha act was contended to h»Ta tha
same character and efficacy as the Act of
Juna 21, 1B08, ia aaaerted to have In the
case at bar. And certain facte were necea-
•ary to be determined as elements of deci-
sion. This court said that in the caae there
were questions of law and of fact upon
which the United Statea would have to be
heard. So in the present cose thera is a
queetion of law whether the Act of June 21,
1SS3, had tha quality as a grant of the
land, asserted of it, whether of itself or
because of its terms or their prior construc-
tion and its adoption; indeed, whether there
was such a prior construction or its adop-
tion; and again, of the fact of the character
of the land at the time of the grant, and tha
evidence of it and the knowledge of it.
It would aeem, bealdea, that, under tha
avermenta of the bill. Keepers is an indis-
pensable party, he having become, accord-
ing to the bill, a purchaser of the land and
paid the purchase price thereof. To make
him a party would oust thie court of juris-
diction, if he is a citizen of New Mexico,
and the presumption expressed by defend-
ante that he is complainant does not denj.
California v. Southern P. Co. 167 U. S. 229,
39 L. ed. SS3, 16 Sup. CL Rep. £91.
Dismissed.
BENJAMIN VOSPEH, Pred H. Abbots
Maurice J. Tonkin, and the Buffalo Iron
Mining Company.
Ootnm ^»394(T)— Erbob to State Cotrsr
— FZDKBAL QUESTIOM— BmOT OW DXCEKI
0> FXDERAL COUST.
I. A writ ot error lies to the Federal
Supreme Court from a decision of tha high-
est court of a state where a decree of a
Federal court was made an elemoit in tha
decision against the plaintiff in error, and
was claimed by him to be an element in hia
favor.
cases. sa« Courta, Cent.
[Bd. Note.—
>lg. I lOU.]
JUDOUKNr (S=3T2fi(4)— QtmrTiNG Title ih
TniBD Pabty— Effect — Estoppel bt
DEBU — ArTKB-AcqCIBBD TiTLG.
2. Whatever righta and obligationa ex-
isted between the parties to a warranty
deed, including the liability of the grantor
to an estoppel by warranty In favor of th«
grantee In caae of an after-acquired title,
remained unaffected by a consent deere*
quieting title in a third part; in a suit in
which the issue was whether such third
party had derived title to the property
from the United States, or whether such
grantor had thus acquired title, and to
which suit the latter and his grantee wer*
twth parties, although auch decree declared
that It should "stand and operate as a ra-
leaae and conveyance from the United
« topU * SXY-irVUBEa in all Kar-
Dlieata A Indaxea
z„ ,A_.OOglC
1916.
DONOHUE 7. VOSPEB.
331
StatM, and eaeb and vnrj of the other of
nid detoidxiita, of all right and tiUe to taid
landi," and might "ba recorded as auob in
Ue records of the proper county."
[Ka. NotB.— For other Cbm*.
CMit. Dll. it 12SS-UGT.]
COUBTS «=33&4[1)— EBBOS to STA.TB COUBT
— ScoPB OF Kivnw— Local Law.
3. Whether or not a person has ac-
quired title by adverse poiseBsion to lands
conveyed by the United States to a utati
in aid of railway constructioD ia eesentially
a local question involving an appreciation
of the evidence as to tlie conduct (^ the par-
ties, and ia not open to review in the Fed-
eral Supreme Court on writ of error to a
state court.
[Ed. Nots.-'Por oUiir cases. Ms Conrts, Cenc
Dft. } lOU.] '
[Ho. 44S.]
IN BHBOR to the Supreme Court of the
State of Michigan to review a decree
which affirmed a decree of the Circuit Court
for th« County of Iron, in that Btat«, in
favor of defendants in a suit to quiet title.
Affirmed.
See same case below, 180 Mich. 78, 155 N.
W, 407.
The tacts are stated in the opinion.
Mr. A. II. Ryall for plaintiff in error.
Mr. Dab H. Ball for defendants in er-
• *Mr. Justice McKenna delivered the opin-
ion of the court:
' Suit to declare certain daeds to lands in
Uichigaa to be void, and that plaintiff in
error {as he was plaintiff in the court be-
low, we shall so rsfer to him) be declared
to be the owner of the lands and of the mln.
erala therein, that defendants have no title
thereto, for an accounting of certain royal-
ties collected by certain of the defendants
from the Buffalo Iron Uiaing Company,
■ad that the latter be restrained from pay-
ing any furtlier royalties. The lands are
described as follows: W. i of N. W. i and
». W. i of S. W. i, section BS, T. 43 N, E.
30 W., county of Iron, Michigan.
An answer, which was also claimed to be
» cross bill, was filed, and upon the issues
thus formed and after hearing the court
by a decree dismissed the bill, adjudged title
to the land to be in the defendants Vosper,
Abbott, and Tonkin in certain proportions
and all the ores and minerals therein, that
title to the lands In the proportions men-
tioned be quieted against plaintiff and all
persons claiming under him, that he execute
• deed t« Vosper, Abbott, and Tonkin of
the interests decreed, and. In default there-
of, the decree to operate as such release and
conveyance.
The decree was affirmed by the suprems
court of the state. g
*The facte of the ease were found by the*
supreme court subatsntially as follows;
The Isnd was conveyed to the state of
Michigan to aid in the construction of two
railroads, one In Marquette and the other
in Ontonagon. The land applicable to the
Marquette road was released by the state to
the United States, and later, in lS6e [14
Stat at L. 61, chap. ISI], under an act of
Congress granting lands to the state tor
canal purposes, this land inured to the
beneflt of the Lake Superior Ship, Canal,
Ballway, ft Iron Company by a grant from
the state.
The land to be need for the benefit of
the Ontonagon road was not released, and
it was subsequently decided that the title
to an undivided one half of the "common
lands" — that Is, lands at the intersection
of the proposed railroads — still remained in
the state for the purposes of that road, ex-
cept as affected by an Act of Congress of
leSD [25 SUt. at L. lOOB, chap. 414], by
which Congress declared a forfeiture of
grants in the state ol Klichigan for all un-
constructed railroads, and conlirmed title
in all persons who had made cash entrlea
within the limits of the grants and all
persons claiming state selections, such as
tiie Canal Company. By an exception In
the act the title was not cooHrmed to those
lands in which there were not bona fide pre-
emption or homestead claims asserted by
actual occupation on May 1, 1888.
Michael Donohue, plaintiff's grantor, to-
getlier with varloiM other persons, had en-
tered upon these "common lands" as pre-
emptors and homesteaders, and asaerted
rights thereto under the Act of 1889, re-
ferred to above.
Prior to the Aet of ^869, the Canal Com-
pany brought ejectment suits against those
settlers. In 1804, In the ejectment suits, it
was decided that the title of the Canal Com-
pany to the lands selected by the state was
conlirmed by the Act of 1880, subject to the
exceptions provided in the act, and that it
ehould be determined in an equity suit in
the United States court what lands cameg
Within the excepting clause. It woe also*
decided that the title of the state to the
lands granted for the Ontonagon road, in-
cluding an undivided one balE of the "com-
mon lands," was forfeited to the United
States.
Defendant Vosper had rendered service ta
this litigation to Donohue and the other
claimants, and took from Donohue a war-
ranty deed on December 20, 1804, to an
undivided one-quartcr interest in the land.
^sFor other easoa sm u
■ loplc * KBT-MUHBKR te all Kar-NumMred DlseaU * Indtxw
.gic
808
87 SUPREME COURT REPORTER.
OCT. Ttsu,
At the inatisetiar of persoDH claiming
under the Act of I8SE), the United Stat«B
filed a bill agninBt tha Canal Company. In
that BUit the Canal Companr filed t, cross
bill against the claimants under the home-
stead and pre-emption laws, including Dono-
hue. Vosper was also made * party. The
luue in the litigation, therefore, was wheth-
er Donohue and ttie other claimants were
bona fide homesteaderB or pre-emptors on
Way !, ISsa.
Pending the suit, the Canal Company
conveyed to the Keweenaw Assoclatioo,
Limited.
A decree was entered, Donohue and the
other claimants and Vosper consenting,
quieting the title to the lands in the Ke-
weenaw AsBociation, Limited, as anecesior
of the Canal Company. The decree was en-
tered in 1800, and adjudged that the Canal
Company, at the commencement of the suit,
was fully and completely vested with the
title to the lands, and since the commenci
ment of the suit it became fully and con
pletely vested in said Keweenaw Assoc ii
tion. Limited, as successor of the Canal
Company, and that neither the United
States of America nor any of the defend-
ants consenting to the decree had "any
right, title, or interest therein." And it
was adjudged that title to the lands be
quieted against the United States and the
consenting defendants, and further, that thi
decree should operate as a release and con
veyance from the United States and each
and every of the other of said defendants of
all right and title to said lands, and mi[;ht
be recorded as such In the records of thi
g proper i
• *Nover
inty.
mbcr 19, ISOS, the Keweenaw Asso-
ciation, Limited, conveyed the lands by quit-
claim depd to Donohue,
It is the contention of Vosper that he
and Donohue agreed to tbis arrangement,
hy which a sum of money waa to be paid for
the timber cut and the lands were to be
conveyed hy the Keweenaw Association to
December 3, IBOS, Michael Donohue de-
livered to plaintitT a quitclaim deed to the
premises, and on April 3, 1008, Vosper quit-
claimed an undivided one-eighth interest to
defendant Abbott, and on December 18th,
following, plaintiff joined with Vosper and
Abbott in the execution and delivery of i
option for a mining lease of the premiMs.
February 3, 1009, Abbott quitclaimed i
undivided ^ interest in the minerals to
Tonlcin, and on March 7, 1910, plaintiS
joined Vosper, Abtwtt, and Tonkin In the
•xecutlou and delivery of a mining leai
pursuance of the option given before.
The mining leasee which wai for a term
of thirty years, was Isined to the Niagant
Iron Mining Company as lessee, and waa
by that oompaoy assigned to tha Buffalo
Mining Company. The Niagara Company
was and the Buffalo Company has been and
is now in possession of the premises for min-
ing purposes.
The trial and supreme courta found that
Donohue executed tha deed to Vosper.
About this there is no controversy. Hera
the contentions of the parties turn upon
the effect of the decree which was rendered
by consent in the suit of the United State*
against the Canal Company, and this make*,
it is contended, a Federal question.
Defoidants, however, assert that the de>
cree does not present a Federal question,
and that, besides, it was not claimed or urged
as such by plaintiff Id the state courts, but
appears for the first time in the petition
for writ of error, and defendants refer to
the bill of complaint to auetain their as-
sertion. 3
'But the supreme court in its opinion de-*
clared that a contention of plaintiff invoked
"the effect of the decree of the Federal
court." And, discussing the decree, the
court decided that its effect was "to oust
Vosper from the land, of which he had tha
actual or constructive possession of an un-
divided quarter interest, — it appearing that
Michael Donahue continued In possession
of the undivided one half of the claim from
the time of hie original entry until his quit*
claim deed to the complainant [plaintiff]
despite the alleged trespasses of the Canal
Company and its successor, which posses-
sion would inure to Vosper under the war-
ranty deed." And the court further said
that, hy the paramount title thus e8tal>-
lished in a third party by the decree, Vos-
per was evicted from his title and posaea-
sion and a "clear case for the application
of the doctrine ol estoppel by warranty"
is made in his favor.
The decree, therefore, was made an ele-
ment in the decision against plaintiff, and
it was claimed hy him to be an element la
his favor. The motion to dismiss is there-
fore denied.
Hie contention was in the state courts and
is here that the decree iterated as a convey-
ance from Michael Donohue and Vosper to
the Keweenaw Association, and that, by
virtue of its effect aa a conveyance, it re-
leased the interest that Vosper had in tb«
lauds through the warranty deed from Don<^
hue to him, and that no interest remained in
Vosper upon which an estoppal could rest.
Id other words, that by the decree Vosper'i
interest passed to the Keweenaw Asaoci^
tion and from the latter to Michael Doni^
hue; and a number of cases are olted to
,A_.OOglC
1SI6.
show that Vosper could male* a eonveyanea
«f hfi interest, and that hia grantee, In thia
«ue the Keweenaw Aaaociation, and plain'
tiff, through the latter, would take hia In-
The contention puta out of view a great
deai that Is material in the aituation. The
g auit in which the decree was entered waa
* one to determine whether the Cenal'Com-
panj or ita grantee, the £eweenaw Associa-
iion, had derived title from the United
States, or whether Donohue liad. Vosper
wa« made a part; becauae of the deed from
Donohue to him, and the decree quieted title
Id the Keweenaw Asaociation. If it had
gone no further there would probably be no
dispute about ita ^ect, but it declared that
It alioutd "stand and operate aa a release
and conveyance from the United States and
each and every of the other of said defend-
ants, of all right and title to said lands,"
and might "be recorded as auch in the rec-
orda of the proper county." Standing alone
tbete latter words might have the effect for
which plaintiff contended, but they must be
oonstrued by wliat precedea tbem and by
the Datura of the auit. Thia demonstratea
that the decree waa but the clearing away
of obstructioDB to the rights of the Kewee-
naw Aaeociation, and was not intended to
convey to it any ioteresta the dcfeiidauta
had, but left unaHected whatever obligatioua
Misted between thenisetvea. Tliis is found
by the supreme court of the state, and that
Michael Donohue was paid a aum of money
by the Keweenaw Association for the timber
cut upon the land, and the laud was to be
conveyed by the Keweenaw Association to
Uichael Donohue, leaving, as we have said,
the rights between liim and Voaper unalTect-
ed, and this is demonstrated by their sub-
sequent relations.
On April S, 1008, Vosper quitclaimed an
undivided i interest in the land to Abbott,
and in the following December plaintiff and
Vosper and Abbott executed and delivered
an option for a mining lease of the premises,
and subsequently a leaae in fullilment of
the option, to the Niagara Iron Mining Com-
pany for the term of thirty years. The
option and the lease recited that Vosper waa
the owner of an undivided i interest in the
land.
It is further contended that plaintiff had
g acquired title to the land by adverse pos-
* seaaion, but the state courts* decided against
the eontention. This waa essentially a local
question, involving an appreciation of the
evidente as to the conduct of tba parties,
and we cannot review lb
Daerce affirmed.
T. 0AT8BB. tea
HUGO ADELBERTO THOMSEn!' Qu&v?
A. Fedderson, Hendrlch Johannes Riedel,
and Edward H. Muller, Composing the
Firm of Thomaen i Company, Flffs. la
Err.,
SIR CHARLES W. CAY8ER, Cliarlea W.
Cayser, Jr., August B. T. Cayser, et oL,
Composing the Firm of Cayser, Irvine, ft
Company, et al.
Apfeai. and EJbbob ^31218 — EtenoB to
Circuit Coubi of Appeals— DiSMissaL
— Oboonds.
1. A writ of error from the Federal
Supreme Court to review a jud^ent of re-
versal with instructiona to dismiss the oom-
plaint which a circuit court of ^pcals bSLd
entered on r^earing after It had recalled
ita mandate, previously issued, ordering a
new trial, and had aet aaide the Judgment
of the court below, need not be dismissed,
either because the trial court had thereto-
fore entered judgment on the original man-
date, and had adjourned for the term with-
out any application made to recall such
judgment, or any writ of arror to reviaw
such judgment sought, or because the da-
fendants in error in the circuit court of ap-
granted, had v
a new trial, i "
disposed of o
I ted that the case be
the other.
. -For Dihsr easM, ass Appeal and
Brror, Cent. Dl|. | 4TU.1
Afpeai, and I^ob «s»843<8)— Ebbob to
Circuit Couht or Appbals—Rbvibw or
Facts — CoNcnBBBirr Fihdinob.
2. The facta are not still in controversy
n a writ of error from tha Federal Su-
preme Court to a circuit court of appeals
to review a judgm^'it which reversed, with
instructions to enter an order dismlsalng
Die complaint, a judgment in favor of plalu-
tifTs in an action to recover treble damagea
for tlie injuries sustained aa the result of
a combination alleged to restrain foreign
trade, contrary to the Act of July 8, ]SOa
(2a Stat, at L. 206, chap. 647, Comp. Stat.
1013, g SS20], where ths case was decided
In the circuit court of appeals upon the
proposition of law that the combination
cliargcd was not an unreasonable restraint
of trade, and that such character was nee-
eesary to make it illegal under that statute,
both trial and appellate courts concurring
as to llie fact of tombination and restraint
and the means employed, and their conclu-
ion not being clearly erroneous.
[Ed. Note.—For other cues. Ma Appeal and
rn>t. Cent. Dig. | 3331.]
Monopolies ^3l6(3)— Dkdeb Anti-Tbust
Act— IixEOAL OouBinATioit — SHippina
3. Ocean carriers between New York
and South African porta violated the pro-
hibition of the Act of July 2, 1800 (28
SUt. at L. 206, chap. 647, Comp. Sut. 1013,
J 8820), against combinations in restraint
of foreign trade or commerce, by uniting,
with the Intention and result of restrainii^
competition, in establishing a uniform
freight rate which included a ao-callad
•primage charge," to be refunded subso-
IS taple ft KBT-NUMBBB Id all Ktj-
Sltists * ladaa
354
87 SUPREME COURT KEPOETER.
qnently to ihii^rg upoD eooditioii tbnt thej
should ahlp exclusively W the line* ol tha
combining carrier*, snd should not, directlj
or indirectly, be interested in any shipioent
by other vesaela, and upon the further con-
dition (afterwards revoked) that the con-
•igneea must also exhibit the same loyalty
to the combining Hnes.
rBd. Note.— For othar cues, we UoaopoIlM,
Oeat. Dig. f U-I
MoNOPOLiKB «=9ia(3)— Uhdbb Ahti-Truot
Act— Shippino Tbubt — Oboahiutioh
Iir FORBIOR COTJMTBT,
4. A combination of ocean carriera to r»-
iteain competition ia within the Anti-truat
Act of July 2, 1890 (26 SUt. at L. BUB,
ohap. 64T, Comp. Stat 1913, g BSSO), al-
though it was formed in a foreign country,
where it affected the foreign commerce of
the United States, and waa put into opera-
tion in the United Statee by the carriera'
local manageiB, who were more than simply
a^ute, being participants in the combina-
[Ed. Note.— For othtr caoes. Me UoaapoLlea,
CbbL DIs. I 12.1
MoKOfOLIBS «=>28—U NLA WITH. GOUBIKA-
TIOHS— THBE£rOI.D DAIUaBB.
6. Shippers who have been compelled
to pay an unreasonable freight rate because
of a combination of ocean carriers to restrain
competition, contrary to the Anti-trust Act
of July 2, 1890 (26 Stat, at L. 209, chap.
647, Comp. Stat 1913, $ 8S20), have suf-
fered damage to the amount of the exceaa
over what was a reasonable rate, within the
meaning of § 7 of tliat act, giving a cause
of action to any person injured in his per-
son or property by reason of anything for-
bidden by the act, and the right to recover
threefold damages suatained by him.
[Ed. Nate^ — For othar oaa*i. ■» llonoi>oll».
Cent. DIf. I U.]
HONOPOLIKS 4=328— Thbeefold Dahaoeb
— QuBSTion FOR J cBi— Combination id
REsraAiHT op Tb&dk.
6. The tact of combination need not b«
■nbmitted to the Jury in an action for three-
fold damages, brought under the Anti-trUBt
Act of July 2, 180Q (26 Stat, at L. 200,
ehap. e47, Comp. Stat. 1013. § 8820), g 7,
where there Is no conflict in the evidence,
and nothing, therefore, for the jury to pasa
ts!d. Note.- For othar eaus. att Uonapollea,
Cect. Dl(. I 18.)
HonopoLiBS ^328— Dauaoeb ~ TneTBUC-
TIOKB.
7. It cannot be said that the Jury were
permitted to consider aupposititioua prodta
as elements of damage in an action for
threefold damages, brought under the Anti-
trust Act of July 2, 1800 (26 Stat, at L.
209, chap. 647, Comp. Stat. 1913, g S820),
I 7, by shippers against ocean carriera who
had combined to restrain competition, where
there were different sums stated, resulting
from the loss of particular customers, ana
the fact of their certainty was submitted to
the judgment of the jury, who were told
that they ought not to allow any speculative
damages, and were not required to guess a*
to what damages plaintiffs claimed to have
sustained, and that the burden of proof was
opm plaintiffs, and that from the evidenco
the joiy should be able to calculate the dam-
ages,— especially where plaintiffa allied an
overcharge, and the verdict of the jury was
for the amount of such overcliarge and in-
[Btl. Nota.—For other eusa, *•• Uonopoliea,
Cant. Dig. I IS.]
Appeal and Bbrob «s>1067 — TT^nifri^^
Ebbob— Failcbb to Coabqe oh Btreoiir
or Pbodp.
8. Error, if any, In failing to charga
the jury in an action for threefold damages,
brought under the Anti-truat Act of July
2, 1S90 (26 Stat, at L. 209, chap. 647,
Comp. Stat 1013, g 8820), g 7, by shippera
against ocean carriers, that the burden waa
on the plaintiffs to show that the rates on
their shipments were excessive and unrca-
Bonable,--does not d^nand a reversal where
tbe record ahon* « moat painstaking trial of
the case on the part of counsel and tha
cour^ a full axposition of all the elements
of judgment, and careful inetructiooa by the
court for their estimate.
[Ed. Nola.— F^ other ease*, ■»• Appeal BBd
Brror, Gent. Dig. I t23».J
P1.BADING e=»23e(l) — AnHDMEItT — DlS-
cBffriOK.
9. The allowance of an amendment to
the complaint rests In the sound diacretioB
of the trial court
[Ed. Note.— For other cams, ■•• Pleadlnc
Cant Dig. g am..]
[No. 2.]
Argued April 28 and 29, 1914. Restored to
docket for argument before full bench
June 21, 1915. Reargued January IB
and 22, 1917. Decided March 6, 1017.
X Court of Appeals for the Second Cir-
cuit to review a judgment which reversed,
with instructions to dismiss tJte complaint^
a judgment of the District Court for the
Southern District of New York in favor of
plaintiffs in on action for threefold damages,
brought under the Sherman Anti-trust Act
Reversed. Judgment of District Court af-
See same case below, on first writ of er-
ror, 02 C. C. A. 315, 168 Fed. 251; on sec-
ond writ of error. 111 C. C. A. 868, 674, 190
Fed. 536, 1022.
Statement by Ur. Justice McKenna: jg
* Action, brought in the circuit court of the*
United States for the southern diatrict of
New York, by plaintiSa in error against de-
fendants in error and others under tbe
Sherman Act to recover damages for in-
juries sustained as the result of a combina-
tion in restraint of foreign trade.
The defendants. It ia charged, being com-
mon carriers between New York and South
African porta, did, under certain oomponf
namea, some time prior to Deconbet, 1B9^<^
318
I* topic A KET-NDIf BER In all K«r-Numb«r*4 DlK«U * I»d«i<a
1918.
lEOMSEN T. CAYSER.
903
«iiUr into ft combination knd eonsplrner In
restraint of trade and comniBrce batwMii
KeiT York and ports in South Africa, to be
rendered effective bj m&icing certain dis-
eriminations in rates of freight to be
eliarged whicb were calculated to coerea
■nd prevent pIsIntlfTs and other aliipptrs
and merchants similarly situated from em-
ploying such agencies and facilities of trans-
portation aa might b« afforded them bj
For suck purpose tbey united under the
A name of "Tbe South African Steam Lines"
• and distributed a circular l* (eibibit A)
promising to pay shippers by their lines 10
per cent upon the net amount of freight at
tariff rates received on shipments frum the
United States to Africa, the commission to
bt computed every six months up to tbe 3lst
of January and the 31st of July in each
year, and to be payable nioe months after
■uch respective datei, but only to shippers
who shipped eiclusively by tiieir lines to
certain African porta, and provided that the
shippers directly or Indirectly liave not
made or have not been interested in any
■hipmenta by other vessels.
The commission is not payable on tlie
foods of any consignee who directly or in-
directly imports goods by vessels other than
those despatched by the combining lines.
These terms, it is charged, are sgainst
public policy and in restraint of trade.
About the middle of the year 1001 the de-
fendant Deutsche Dampscliiffabrts Gesells-
• ebaft, Hansa, and the firm of Funch, Edye,
• ft Company, as its agent, offered ta'trans-
part merehandiae to South African ports at
reasonable rates and lower than those im-
posed by the otlier defendants. Thereupon
the other defendanta, for the purpose of
avoiding tbe eompetitlon of those earrlera,
accepted them Into the scheme and combina-
tion, and ttiera waa agreement betveen them
to continue the monopoly, and another cir-
cular was issued like the first, including
only the additional announcement that the
Deutsche Dampschiffahrts Oesellacbatt, Han-
sa, had been added as one of tbe parties
to the flrst-named agreement. The circular
is attached to the complaint as exhibit B,
Subsequently the defendants adopted ft
verbal agreement that altered the circulori
to the effect that the so-called "loyal" con-
■ignees could collect tbe so-called rebates
regardless of whether the shippers were al-
so loyal; but on the condition that where
Uie shippers and consignees were both loyal,
the rebates would be paid to the ihippere,
while If the consignee alone were loyal, tbe
rebate would be paid by the defendants in
London direct to the so-called loyal con-
signee.
Defendants have not deepatched stearoert
to African ports at stated and regular datea,
but have placed steamers on berth to receive
general cargo only at such times and for
such ports in South Africa as they deemed
best tor their private gain and profit.
By reason of the monopoly so created by
defendants, shippers — among whom are
plaintiffs — have been compelled to submit to
hardships and inconvenience, and to pay
unreasonable and higher rates to such ex-
tent as to leave at the present time in the
possession of defendants collectively, aa
plaintiffs are informed, about one and on«-
half million dollars representing the extor-
tion of their rates, and that of such amount
£1,118, 7s. lid. has been extorted from plain-
tiffs.
Tiro steamship companies, the Prince Line
t "The South African Steam Lines.
"Notice to Shippers in the United Statee.
'Commission in Beepect of Shipments by
Steam and Sailing Vessels.
"London, Slst December, IBQS.
"1. Shippers to all porta of the Cape Col-
•ny and of Natal and to Delagoa bay are
hereby informed that until further notice,
and subject to the conditions and terms set
out herein each of the undernamed linea will
5 ay shippera by their line a commission ol
0 per cent, calculated upon the net amount
of freight at tariff rates received by
Buch line from auch ehippers on tiieir ship-
ments from the United States to South
Africa.
"8. The said commisiton to be eompnted
•very six months up to the Slst Jannaxy
uid Slst July in each year, and to ba pay-
able nine months after such respective dates
to those dippers only who, until the date
at which the commission shall become pay-
able ehall have shipped exclusively by ves-
•eU deepatched by the undernamed linea
•■capedively from the United States to porta
ipals or as agents, have not directly or In-
directly made or been interested in any ship-
ments to any of the aforesaid porta by
vessels other than those despatched by the
undernamed, and also provided that the state-
ment of claims for such commission shall be
made in the annexed form, within twelve
months of the date of shipment, to the line
which ahall have carried the goods in r*-
spect of which tlie commission U claimed,
"3. The above commiaaion ia not payable
on the goods of any consignee who directly
or indlreetly imports roods by vessels other
than those despatched by the undernamed
"(Subscribed) American & African Steam-
ahip Line. Union-Clan lin«,
"All previous notice to shippera or con-
signees with reteiance to returns on freight
are canceled.
"Note. — The above commission will be
payable to the shippera whose namee appear
on tbe bilk of lading or to their arimy
L,g,...,A..0315lc
SbU
31 SUFE£M£ COUBI REPORTEB.
Oct. Xeuc,
r knd tile HaiutoD Line, have, Biiice the apring
■ of 1902, offered to*carr]r from the United
fitktea to South African porta mecchandisa
for a reasonable and remunerative iat« low-
er than that exacted by defeudantB.
Defondanta, to prevent luch steamers from
competing, have, tn addition to the terms
Imposed on the South African trade hj the
eirculara above nientiooed, impoied further
conditiona which, while tliey ostensiblj
duced the tower rate of freight and
aounced that defendants would pa; the
greater diCrcrence arising therefrom, bj
them tailed a special commisaion, they
exacted the payment of the highL-r rates, by
them called taiilT rates, at the time oi ship'
ment, and imposed the following further
oondition: (IJ Precedent to the payment
of such ditlerence tliey require all shippers
to be loyal to them. (Z) Each ahipper to
disclose the name of his consignee. (3)
The dillerence in rales to be computed only
Ml those steamers which would come into
direct coupe tit ion with the steauiers of
either the I'rince Line or the Houston Lini
called by defendants "fighting steamers.
(4) The special commission or rebate to b
granted only on limited amounts of freight
room, to be allotted at the will and disi
tion of defendants, additional freight ro
to be paid for at the higher rate under the
conditions expressed in the circulars.
These additional conditions are intended
to further restrain trade, and in fact have
prevented shippers who had already sliippei'
goods under the original conditions impoaei
by tlie circulars from further exporting a:
much merchandise to South African port:
at reasunabie rates offered other shippers.
To furtlier secure the monopoly of thi
carrying trade to such port« and oust com
petition defendants have threatened to with
hold and iiave withheld by way of forfeit
the repayment of the so-called rebates iron:
all tiiose among whom are pi a in tiffs, so
jlealled by them "loyal shippers" and "loyal
* consignees," as aforesaid, '"who would not
continue to remain loyal under the addition-
al conditions superimposed aa aforesaid."
For illustration plaintiffs adduce two in-
stances when they were obliged to pay
higher rates on a portion of the shipments,
which rates were higher than those offered
by the opposition lines, and defendants
threatened, if plaintiffs made the shipments
over the latter lines upon the more favor-
able terms, to withhold from repaying plain-
tiffs all sums previously so compuisorliy
paid by plaintiffs.
Plaintiffs are Informed and believe that
•luce the opposition lines have offered to
carry freight to South Afrioaa ports defend-
ants lutve, by reason of their conspiracy, re-
I fused to allot nnlfonn and proportionate
freight room on their steamers, and have
arbitrarily discriminated between several
shippers and even against the so-called
"loyal" shippers and consignees, with th«
unlawful intent that the moneys so held by
them would be sufficient security to prevent
such shippers or consignees from making
shipments of or importing their goods by the
competing vessels.
By reason ol the conspiracy plaintiff and
others similarly situated have been com-
pelled either not to ship at all, and to losa
a great deal of their trade, or to ship on de-
fendantB' steamers a small portion of mer-
cliandisc at tbe lower rates, and the remain-
der, of the same class and even of the ideo-
tical lot of merchandise, at the higher rates,
which is practically prohibitive uf any trade
whatever by reason of the fact that the sub-
stantia 1 difference between the two rates
would be a discrimination against the vari-
ous consignees and customers of plaintiffs
and the various shippers and customers of
other shippers by the same steamer.
The conspiracy violates the laws of tho
United States and especially the Act of
July 2, 1800 [20 Stat, at L. 200, chap. 047,
Conip, Stat. 1013, g 8820], entitled, "An
Act to Protect Trade and Commerce against
Unlawful Restraints and Monopolies." n
* Plaintiffs allege damages in the sum oft
£1,112, 7b. lid., equal to $5,500, for whicb
they pray as the excess over a reasonable
rate, and the further sum of $10,000 dam-
ages, and the trebling of these sums.
Tbe defendants, by their company mimeSi
filed separate answers in which they deny
some of the altegations ol the complaint and
adinit others. Tliey deny conspiracy and
combination for tlie purpose or with tbe
effect set out in the complaint They admit
the making and issuing of the circulars
designated A and B in the complaint, but
deny that they have the effect or were in-
tended to have the effect ascribed to them.
Tliey admit the refusal to pay plaintiffs
certain claims as rebates, but deny the dis-
tinction between loyal shippers and loyal
consignees and all of the inferences and as-
sert ions in regard thereto.
As a separate defense they allege that all
freight carried by them for plaintiffs was
carried on bills of lading, each of which con-
tained on its face the statement of the
amount of freight to be paid, and in re-
spect to which in every instance plaintilTa
either paid the freight or agreed to pay ttia
amount of freight stated In the bill of lad-
ing, and in each instance gave a due bill
which was subsequently paid; that the pay-
ments were made freely and voluntarily and
without protest; and that, so far aa any of
the payments were made pursuant or with
,A_^OOglC
lOlS.
THOMSEN T. CAYSEB.
reference to the printed elrcuUra, pUintiffa
co-operated knowingly In such tnuieactlona,
and cannot now be entitled to any relief on
account of psTmenta of freight made there-
under.
It was prayed that the compl^t be dia-
Upon the ieeuee thui formed there were
two triala. At the conclusion of the testi-
mony on the flret trial the court considered
that no cauee of action was established un-
der the Slierman L«» and upon motion of
defendants dismissed the complaint. 149
« Fed. 933.
• 'The judgment waa reversed by the circuit
court of appeals (October, ISOS). S2 C. C.
A. 31S, lea Fed. 2S1.
Upon the return of the case to the circuit
ecnirt it was tried to a jury, resulting in a
Terdlet for plaintiffs against the defendants
composing the Arms of Cayser, Irvine, t
Company; Barber & Company; and Norton
t Son, Uie action as to the oUier defendante
having abated or been dismissed by the
The judj^iKnt recite* that the action was
brought under the act of Congress of July
B, 18S0, and that a verdict lied been ren-
dered agiunst the defendants above named
for the sum ol $5,600, with interest in the
eum of |I,ST3.0e,— in all, $7,673,06; that
thereupon the court directed the clerk to
treble the amount of the verdict, pursuant
to the terms of the act of Congress, making
the amount $22,719. IB, and that, the partiee
consenting, the court fixed 92,600 ae an at-
torney's fee. The judgment was reverted by
the circuit court of appeals, one member dis-
senting (July, 1911). Ill C. C. A. 36S,
100 Fed. GSe.
The circuit court at the first trial (Judge
Hough sitting) was of opinion that tlie
feetimony did not establish that tlie com-
bination charged against defendante was in
unreasonable restraint of trade. The cir-
cuit court of appeals expressed a different
opinion. The court said that the substance
of the complaint was that defendants were
engaged as carriers in South African trade
and had entered into a combination in re-
atraiut of all foreign trade and commerce,
in violation of the act of Congress, by means
of a acheme under which they united as
"The South African Lines," fixed rates, and
■hut off outside competition by requiring
Bhippers to pay a percentage in addition to
ft reasonable freight rate, which they should
receive back in case — and only in case — they
refrained from shipping by other lines. And
the court said the evidence showed the exist-
ence of a "conference" for the purpose of
K fixing and maintaining ra.tes, and a return
* "commission'* to "loyal"* ahippere. The
manifest purpoee of the combination aud Its
effect were, it was further said, to restrain
competition, and that it was therefore in
contravention of the Federal Anti-trust Act.
Tha court considered that whether the
restraint was reasonable or unreasonable
was immaterial under the decisions of this
court, or whether the comiiination wee en-
tered into before or after plaintiffs com-
menced buainess, the statute applying to
continutng combinations, or wlietlier the
combination was formed in a foreign country,
ae it affected the foreign commerce of this
country and was put into operation here.
And as the plaintiffs had alleged damage,
the court decided that they were entitled to
an opportunity to prove it, and remanded
the case to the circuit court.
Upon the second appeal the court declared
a change of view, saying: "When this esse
was in this court before we said, upon the
authority of the decisions of tlie Supreme
Court ns we then interpreted them, that
whether the restraint of trade imposed l>y
the combination In question was reasonable
or unreasonable was immaterial," and that
it was "also apparent from the record that
the circuit court upon the second trial, in
holding as a matter of law that the combi-
nation shown was in violation of the statute,
acted upon the same view of the law." And
furtlier: "In the liglit of tlie recent deci-
sions of the Supreme Court in Standard Oil
Co. V. United States, 221 U. S. I, 55 L. ed.
619, 34 L.R.A.(N.a.) S34, 31 Sup. Ct. Bep.
502, Ann. Cas. 1S12D, 734, and United
States T. American Tobacco Co. 221 U. S.
108, 65 L. ed. 803, 31 Sup. Ct. Rep, 632,
the construction so placed upon the statute
by tills court and the circuit court must bs
regarded aa erroneous and a new trial must
be granted unless the contentions of the
parties are correct that, upon the facts
shown, thig court can now determine tlie
legality of tlie combination."
The court then said that It was impossible
to hold that the record disclosed a combina-
tion in unreasonable restraint of trade, but
that it would be unduly prejudicial to plain-
tiffs to reverse the judgment with instruc-J
tions to*dismias; that as the plaintilTa had*
presented their case in view of the decision
of the court that the reason abtcness of the
restraint was immaterial, it would be un-
just to them to dismiss the complaint be-
cause their proof did not conform to another
standard, and that upon another trial the
plaintiffs might be able to "produce addi-
tional testimony tending to make out a
ease within the Supreme Court decisions re-
ferred to." Accordingly, tlie court remand-
ed the case for a new trial.
Subsequently a rehearing was granted ob
petition of plaintiff's who waived any right
to a new trial and consented that the e
,A_i00gle
a: SUPREME COURT EEPORTEH.
Oct. Txau,
■hould bs dispoEied of one way or tlie other.
Aa a result of the rehe&ring the mandate
wa« lecalled and the judgment reversed,
nlth taistructiona to enter mi order disniisa-
Ing the complaint.
This writ of error vu then allowed.
Mr. Ixirenzo Clio for plaintiffs in error
on original argummt. Mr. A. Iieo X>«rett
for plaintiffs in error on reargument.
MeserB. J. Parker Klrlin, Thomaa
Tbacber, and Charles B. Hickoz for de-
<• iMidanta in error.
* * Mr. Justice McKcana, after stating ths
ease as above, delivered the opinion of the
A motion to dismiss the writ of error b
made, two grounds being urged: (1) The
circuit court of appeals was without juris-
diction to allow the writ on March 15, 191Z,
for the reason that ita judgment had become
executed and the judgment entered thereon
in the circuit court November 24, 1911, had
become final and irrevocable before the peti-
Uon for the writ was filed and the order
allowed. (2) The judgment of the circuit
court was entered in the form Anally adopt'
ed at the request of plaiutilfs and by their
consent, and the errors aseigned by plain-
tiffs were waived by such rei^uest and con-
The argument to support the motion is
■omawhat roundabout. It gets back to the
circuit court and charges that because that
court had entered judgment on the original
mandate and had adjourned for the term
jj without aoy application having bran made
* to recall that •judgment, and because no writ
of error to review it was souglit, the judg-
ment became ■ final disposition of the case.
We are not concerned with what the cir-
cuit court might have done, but only with
what the circuit court of appeals did and
the jurisdiction it posaeseed. It received and
granted a petition for rehearing, ordered
a recall of the mandate previously is-
iued, set aside the judgment of the circuit
court, and remanded the case with directions
to diamisa the complaint. The plaintiffs did
not consent to a judgment against them, but
only that, if there was to be such a judg-
ment, it should he final in form instead of
Interlocutory, so that they might come to
this court without further delay.
Subsequently a petition for the writ of
error was filed and allowed and all further
proceedings upon the part of the defendants
for the enforcement of the judgment were
suspended and stayed until the final deter-
mination by this court upon the writ of er-
ror, ]d return to which the record was prop-
erly furnished. Atfaerton v. Fowler, SI U. S.
143, 23 L. ed. 266.
The motion to dismlu li denied.
322
The case in the courts below had a various
fate, victory alternating between the par-
ties, but finally resting with defendants.
The plaintiffs, dissatisfied, have brought
the case here. We are confrimted at the
outset, in view of the proceedings in the
courts below, with contentions as to what
questions of law or fact are before ua.
Notwithstanding two trials and two ap-
peals and reviews In the circuit court of
appeals, defendants insist the facts are yet
in controversy. We cannot assent.
It wiU be observed from the excerpts from
the opinions of the circuit court of appeals
that the case was decided upon the propoai-
tion of law that the combination charged
against defendants was not in unreasonable^
restraint of*trade, and that such cliaraeter*
was necessary to make it illegal under the
Federal Anti-trust Act. As to the fact of
combination and restraint and the means
employed both trial and appellate courts
concurred, and their conclusion is not shown
There is a contention that "there is not
in the record any direct proof whatever of
the terms of any conference or agreement
participated in by any of the defendants.
All that appeara is that certain steamship
owners consisting of firms, the identity of
whose memtKTs is not established, operated
steamers in the trade to South African
ports without competing with one another."
But more than that appears, and it cannot
be assumed that the circulars that were is-
sued and the concerted course of dealing
under them were the accidents of particular
occasions having no premeditation or subse-
quent unity In execution. The contention
did not prevail with the courta below and
we are brought to the consideration of the
grounds upon which the circuit court of
appeals changed its ruling; that is, that it
was constrained to do so by Standard Oil
Co. V. United Statea, 221 U. S. 1, 65 L. ed.
619, 34 L.RjL(N.S.) 834, 31 Sup. Ct. Rep.
602, Ann. Cae, 1QJ2D, 734, and United
States V. American Tobacco Co. 221 D. 8.
lOQ, 56 L, ed. 603, 31 Sup. Ct. Rep. 632.
It is not contended that the facts of those
cases or their decision constrained such con-
clusion, but only that they announced k
rule which, when applied to the case at bar,
demonstrated the inoffensive character of
the combination of defendants. In other
words, it is contended that it was decided
in those cases that "the rule of reason" must
be applied in every case "for the purpose of
determining whether the subject Iwfore the
court was within the statute," t« quote the
words of the opinion, and, as explained in
subsequent cases, it is the ^ect of the rul*
that only such cootracta and combinations
are within the act as, by reason of their la-
,A_.OOglC
1SU.
THOMSEN T. CAYSEB.
Unt or the Inherent nature of the eontem-
plkted acta, prejudice the public ioterest bj
jfi unduly reetricting competition or unduly ab-
> Btructiog the* courK o[ trads. Nash t.
United Statee, 2SS U. S. 373, 370, 67 L. ed.
1232, 1235, 33 Sup. Ct. Rep. 780; Eaitern
States Retail Lumber Dealers Asbo. t. Unit-
ed SUtes, 234 U. B. 600, 609, G8 L. ed. 1490,
1408, L.R.A.1916A, 788, 34 Sup. Ct. Rep.
«61.
But the cited nues did not overrule prior
cases. Indeed, they declare that prior cases,
aside from certain expieeiions in two of
them,* or asserted implication* from them,
were example of the rule and show its
thorough adequacy to prevent evaaions of
the policy of the law "by resort to any dis-
guise or subterfuge of form," or the eS'
cape of its prohlbitlona "by any in direction."
And we have since declared that it cannot
"be evaded by good motives," tlie law be-
ing "Its own measure of right and wrong,
of what it permits or forbids, and the judg-
ment of the courts cannot be set up against
it in a luppoeed accammodation of ita pol-
icy with the good intention of parties, and,
it may be, of some good risulta." Standard
Sanitary Mfg. Co. t. United States, 226 -U.
S. 20. 40, G7 L. ed. 107, 117, 33 Sup. Ct. Rep.
9; International Harvester Co. v. llisaouri,
S34 U. S. 199, ES L. ed. 1276, 62 L.RA.
(N.S.) 625, 34 Sup. Ct. Rep. SSO.
The rule condemns the combination of
defendants, indeed, must have a stricter ap-
plication to it tlian to the combinations
passed on la the cited cnses. The defend-
ants were common carriers and It was their
duty to compete, not combine; and their
duty takes from them palliation, subjects
them in a special sense to the policy of the
Uw.
Their plan of evasion was simple and as
effective aa simple. They established a uni-
form freight rate, including in it what they
called a primage charge. This charge was
refunded subsequently, but only to shippers
who shipped exclusively by the lines of the
combining companiee, and who had not, di-
rectly or Indirectly, made or been interested
in any shipment by other vessels. And there
V was the further eonditfon that the rebate
• was not*pa]rabIe on the goods of any con-
dgnee who directly or indirectly imported
goods by vessela other than those of the
"conference," — to use the word employed
by the witnesses to describe the combining
companies. This loyalty on the part of the
eoneignees was subsequently excused, but
loyalty upon the part of shippers was eon-
■ United States t. Trans-Mlsaouri Freight
Aaao. 1« U. S. 290, 41 L. ed. 1007, 17 Sup.
Ct. Rev- 640; United States t. Joint Traffia
Aaso. 171 U. S. SOS, 43 L. ed. 250, 19 Sup.
CL Rep. 25.
tinned to be exacted, and Its reward wai
the refunding of the primsge charge. That
the combination waa effective both the lower
courts agreed. Upon Its extent they dif-
fered, the court of appeals considering that
white it was in restraint of trade, the re-
straint was reasonable and therefore not
obnoxious to the law.
The oourt of appeals has not given us its
reason for its conclusion. Counsel for de-
fendants say that the Standard Oil and
Tobacco Cases furnished the explanation,
and that they support what the history of
the act establishes, that it was the "clear
intent upon the part of Congresa not to
condemn contracts and combinations merely
because they are in restraint of competition,
or merely because tbey operate to raise the
cost of commodities to consumers."
The argument that is employed to bu>>
tain the contention is one that has been
addreesed to this court in all of the cases
and we may omit an extended consideration
of it. It terminates, as it has always ter-
minated, in the assertion that the particu-
lar combination Involved promoted trade,
did not restrain it, and that it vras B bene-
ficial, and not a detrimental, agency of com*
We bave already seen that a combination
is not excused because it was induced by
good motives or produced good results, and
yet such is the justification of defendants.
They assert first that they are voluntary
agencies of commerce, free to go where they
will, not compelled to run from New York
to Africa, and that, "unlike railroads,
neither law nor any other necessity fixes
them upon particular courses;" and there-
fore, it Is asked, "who can say that other-
wise than under the plan adopted, any of«
^e ships of the defendants would have sup-*
plied facilities tor transportation of com-
modities between New York and South
Africa during the time referred to in the
complaint T" The resultant good of the plan,
it is said, was "regularity of service, wilb
steadiness of rates;" and that "the whole
purpose of the plan under which the defend*
ants acted was to achieve this result."
We may answer the conjectures of th*
argument by the counter one that if defend-
ants had not entered the trade, others might
have done so and been willing to serve
shippers without construing them, — been
willing to compete against others for the
patronage of the trade. And it appear*
from the testimony that certain lines to
competed until they were taken Into Oio
defendants' combination.
Nor can it be said that under defendant*
as competitors, or that unat"' competing
lines, Krvice would not be regular or r^tw ^
L'.ah... ■■■'^"'3238"^
a«o
37 SUPItEUE COUET ttKPOBlER.
Oct. Tkxm.
Mrtain, or, If uncertain, that they would be
datrlmentally so.
Thai th« combi nation wb* intended to
prerent tlie competition of the lines whicli
formed It is testifled, &ud it cannot ba
justifled bj' the conjectureB offered b; coun-
oel; nor can we say that the euccese of the
trade required a constraint upon ehippera
or the enploympnt of "Ggliting ahipa" to kill
off competing vesacla which, tempted by the
proflta of the trade, uoed the free and un-
fixed courses of the seas, to paraphrase the
language of counael, to break In upon d*-
lendants' tnonupuly. And monopol; it was;
shipper a con^Lraiucd by their neceasitiea,
coinpetitora kept oS by the "ligliUng ships."
And it finda no JuatiCcation in the fact that
detendaiitii' "contributions to trade and com-
merce" might "tiave been withheld." This
«»■ be said of aaj of tha enterprises of
capital, and has been urged before to exempt
them from regulation even when engaged in
btuineaa which ia of public concern. The
m contention has long aincB been worn out
' ftmd it Is established that the'conduct of
property embarked in the public service ia
subject to the policies of the law.
It is contended that the combination, if
there was one, was formed in a foreign coun-
try aud that, therefore, it was not within
the act of Congress; and that, besides, the
principals is the combination, and not their
Bgcnia, were amenable to the law. To this
we do not assent. As was said by the cir-
cuit court of appeata, the combination af-
fected tiic foreign commerce of this country
and waa put into op>!ration here. United
SUtaa y. i-acific 4 A. R. ft Nav. Co. 228 U.
8. S7, 67 L. ed. 742, 33 Sup. Ct. Rep. 443.
It, therefore, is within the law, and ita man-
agers here were more than simply agents—
tbey were participnnts in the combination.
It ia, ho»'ever, contended that even it it
be assumed the facts show an illegal com-
bination, they do not show injury to the
plaintiffs by reason thereof. The contention
ia uiitpnahle. Section 7 of the act gives a
cause of action to any person injured in
his person or property by reason of any-
thing forbidden by the act, and the right
to recover threefold the damages by him
sustained. The plaintiffs alleged a charge
over a reasonable rate and the amount of it.
If the charge be true that more than a rea-
sonable rate was secured by the combination,
the excess over what was reasonable waa an
element of injury. Texas ft P. R. Co. *.
Abilene Cotton Oil Co. 204 U. S. 429, 436,
SI L. ed. 553, S57, 27 Sup. Ct Bep. 350,
t Ann. CsB. 1076. The unreasonableness of
the rate and to what extent unreasonable
waa submitted to the jury, and the verdict
represented their conclusion.
The ne.\t contention is that the fact of
oombination should have been •ubmitted to
the jury, end not decided as a matter of law
by the court. We are unable to assent.
There was no conSict in the evidence, nothi
ing, therefore, for the jury to pass upon;
and the court properly assumed the decision
of what waa Cine and ita illegal effect.
It is next contended that the jury was
permitted to consider as elements of daiq-^
ago supposititious profits. The'record does'*
not sustain the contention. The proHta were
not left to speculation. There were different
sums stated, resulting from the loss of par-
ticular customers, and the fact of their cer>
teinty was submitted to the judgment of the
jury. They were told that they "ought not
to allow any speculative damages," that they
were not "required to guess" as to what
damages "plaintiff claimed to have sus-
tained." And further, that the burden of
proof was upon plaintiffs and that, from
the evidence, the jury should be able to
make a calculation of what the damages
were. Besides, plaintiffs alleged an over-
charge, and the verdict of the jury waa for
iu amount and interest.
Two other contentions are made; (1)
The court should have charged the jury that
the uurccn waa on the plaintiffs to show
that the rates on their ahipments were ex*
cesaive and unreasonable. (2) Tha court
erred in permitting plaintiffs to amend their
complaint so as to set up a new causa of
( 1 ) If there was error in this, its effect
is not appreciable. The record shows •
most painstaking trial of the case on tli*
part of counsel and the court, a full exposi-
tion of all of the elements of judgment, and
careful instructions of the court for their
estimate. It would he going very far to
reverse a case upon the effect of the bars
abstraction asserted by the contention, even
granting it oould be sustained.
(2) Permitting the amendment of tha
complaint was not an abuse of the discre-
tion which a court necessarily possesses.
The above are the main contentions of de-
fendants. They make, besides, a contention
comprehensive of all of the rulings against
them; but to give a detailed review ot such
rulings would require a reproduction o{ tha
record, and we tiierefore only say that th^
have been given attention and no prejudicial
error is discovered in them.
Judgment of the Circuit Court of Ap>
peals la reversed and that of the Disbiet
Court is affirmed. '
,A_^OOglC
1916.
<HI V.
BUSIE A. TYBRELL, u AdmuiiatratrU ol
the Estate ol Conrad E. I^ell, De-
ceased, Petitioner,
DISTRICT OF COLUMBIA.
CuuBTS C=>388— Oe:btioeabi to Dibtbioi
or Columbia Coubt of Appiai-B— Ik-
PBoviDENTLT Gbantxd— DIBUIe(lAI..
(Je^tiora^i to the court ol appeals ot
the DiBtrict of Columbia will be diuniued
where the record discloses that the
tiou upon which the certiorari was prayed
was DOt beFore the court below, and ii i '
now open for eon si deration, as no except:
concerning ttie ruling of the trial court
that suljject was taken so aa to presem a
review concerning it.
fECL^NoM.— For cttMr Gsaei, im Court*. Cent
TYRRELL t. DISTRICT OP COLUMBIA.
Ml
Dfs. II lOtMOIO.]
(No. H-I
ON WRIT of Certiorari to the Court of
Appeals of the District of Columbia to
review a Judgment which reversed and re-
manded for a new trial a judgment of the
Supreme Court of the District in favor of
plaintiff in an action of death against tlie
District, as a municipal corporation. Dis-
missed for want of Jurisdiction.
See same case below, 41 App. D. C. 463.
The facts ere stated in tlie opinion.
Meters. I.evl H. David and Alexander
Wolf for petitioner.
Messrs. Conrad H. S^me and PerciTal
H. Marshall for respondent.
• 'Mr. Chief Justice White delivered the
apinion of the court:
We state onlj so much ol the ease as is
essential to an understanding of the dis-
position which we are constrained to make
Of it.
The action was commenced in May, 1012,
by the petitioner as administratrix of the
estate of her liusband, to recover from the
District of Columbia, as a municipal cor-
poration, damages Buffered as the result of
his wrongful death in September, 1011.
Briefly, it was alleged that the District had
contracted to make an addition to a school
building to it belonging, knowa as the Mc-
Eioley Manual Training School, and to put
in order and adjust the boilers in the base-
ment of the old building, and while the
deceased was engaged under a subcontractor
in doing the latter work, he was killed by
an explosion ot illuminating gas which bad
escaped from the gae pipes which were in
the basement. It was alleged that the gas
had been permitted to escape and remain
la the basement through the neglect and
wrongful conduct of the municipality or its
agents. Tbe averments as to the negligence
of the municipality both In permitting the
escape of the gas and as to allowing It to^
remain after notice of the dangerous'con-*
dition, and as to the absence of neglect on
the part of the plaintiff's intestate, were
ample. There was a subsequent amendment
to the petition, alleging facts which, it wae
averred, established that the conduct of the
District as to the escape and failure to re-
move the gas was equivalent to the creation
by it ot a public nuisance. The defense
was a general denial and a special plea
setting up a release on the part of the plain-
tiff, which latter, on demurrer, was stricken
out. There waa a verdict and judgment In fa-
vor of the plaintiff, and an appeal was taken
by the defendant municipality. The court
of appeals reversed the judgment and re-
manded, with directions to grant a new trial,
one member of the court dissenting. The
appellee alleging that the case in her favor
could not be bettered at a new trial, asked
that a final Judgment be entered, upon the
theory that the case would be then suscep-
tible of review in this court on error. On
the refusal of tliis prayer, a petition for
certiorari was here presented.
The basis asserted for the application tor
certiorari was that the court below, die-
regariling a dcijisive line of decisions by
tliig court holding that a municipatity, the
District of Columbia, waa responsible for
positive torts committed by Its servants or
agents in the course of their employment,
under the applii^ation of the rule respondeat
superior, iiad mistakenly decided that such
decisions were not controlling because that
principle had no application when the serv-
ants or agents of a municipality represented
the disi^harge of duties which were gov-
ernmental or public In character, as oontra-
distinguished from mere municipal duties,
— a ruling from which it was deduced that,
in the former situation, a wrong suffered
by an individual, however grievous, waa not
susceptible of redress, because the wrong-
doer, the municipality, acting through its
agenta, was beyond the reach of courts ot
justice. Besides, it was declared that al-
though the court proceeded upon the«
assumption that the doctrine which *it an-*
nounced was not In conflict with the previ-
decisions of this court, that assumption
obviously a mistaken one, since the case
icipally relied upon by the court to sus-
tain the doctrine which was applied bad b)
express terms declared that the principl*
nnounced was in conSict with a previous
ecision of this court, which decision was
rong and would therefore not be applied.
The existence of the ground thus stated in
I petition for the writ was not challenged
the opposition filed by the respondent, al-
>r cssss s«* tame h^ie A KBT-NUUBEB In all K«v-Namber«4 Dlxaiia A Ii
tgdeiMi
"lOO^IC
37 SUPREME COURT EEFOBTEB.
Oor. Tebk.
though the correctneBB of tlie legal proper
sitionB relied upon and tho eigniflctiDCe of
' Ute preriouB decUiona ot thia court were
disputed.
Ab on the face of the opinion of the court
below the reasoning apparently juBtifled the
inference that the situation was as stated
In the petition for certiorari, the prayer
for the writ was granted. When, however,
we come to a close examination of the record
on the submisflioQ of the cttBe on Its merits,
we discover that tlie question upon which
the certiorari was prayed under the circum-
Btances previously stated does not arise on
the record and ia not open tor consideration,
and therefore (of course, we assume through
inadvertence of counsel) the petition for
certiorari was rested upon a wholly unsub-
stantial and noneiiuting ground, — a conclu-
sion which will be at once demonstrated by
the statement which follows:
At the trial the court in express terms
charged the jury that "for a mere act of
isolated negligence the municipality of the
District of Columbia would not be reapon-
aible, no matter what the result of the iso-
lated act of negligence was. The District
In this action, if reBponsible at all, can only
be responsible upon the theory that the
dsath. , . , resulted from the maintv-
nance ol a nuiaance, in the first place, and
secondly, that the DiBtrict of Columbia
maintained a nuisance." And this was fol-
lowed in the charge by a definition of what
in the law would constitute a nuisance. To
^ this charge as to nonliability of the city for
• any act*of negligence whatever under the
circumstances, unless there was a public nui-
sance, no exception whatever was taken by
tbs plaintiff, the only exception on the sub-
jsct being that reserved by the defendant to
the charge that there would be a liability
eren in case of a public nuisance. The case,
therefore, on the appeal below [except as to
subjects having no relation to the doctrine
of municipal liability), Involved only the
4]ueBtion of liability in case of a public nui-
sance, and raised no question concerning the
correctneas of the ruling that the municipal-
ity was not liable for an act of individual
negligence because the work which was being
done when the accident occurred involved
the discharge of a governmental as distin-
guished from a municipal duty. It Is true
that in the reasoning of ita opinion the court
below stated what it deemed to ba the eor-
rMt theory concerning the division of the
functions of a municipality, in one of which
it had power to Inflict a poeltive wrong
without redress, and made reference to state
cases deemed to eatablish thia doctrine and
« decision ot this court which it said was
argued at bar to establish to the contrary.
But thia was only reasoning deemed by th«
court to throw light upon its conclusion on
the subject which was before It; that ia,
whether there was liability on the part of
a municipality for a public nuisance as an
exception to the general rule of its nonlia-
bility for a wrong done when in the exer-
cise of a governmental function, and as a
prelude to the ground upon which the judg-
ment rendered was rested; that is, that
there was no evidence tending to support the
conclusion that the facts constituted a pub-
lic nuisance.
In tills view It is plain that if we differed
from the conclusion of the court heiow on
the subject of the tendencies of the proof
as to the nuisance, we would not be at
liberty as an original question to consider
and dispose of the alleged contention con-
cerning the governmental function and tlio
resulting nonliability for a wrong done by a^
'municipality, since that question, under Uis*
state of the record, was not before the lower
court and would not be open for our con-
sideration, as no exception concerning the
ruling of the trial court on that subject
was taken so as to preserve a review con-
cerning it. As it follows that the certiorari
was Improvidently granted as the result of
a misconception of the parties as to the
etat« of the record and the queationa open,
it follows that the case cornea directly with-
in the rule announced in Fumess, W. k Co.
r. Yans-Tsia Ins. Asso. 242 tT. S. 430, 61 U
ed. 409, 87 Sup. CL Rep. 141, and our duty
ia to dismiss the certiorari, thus leaving tha
judgment of the court below unaffected bj
the previous order granting the writ.
Dismissed.
CouBTB «=32S4^FROEBai. Qdestiok— la-
■DXB Inherently Fbdebai.
1. The issues involved in a suit to pro-
tect alleged rights under an oil and gaa
lease, and to set aside a subsequent con-
flicting lease, ao concern matters inherently
Federal in their nature because of the Fed-
eral nature of the court which authorized
the first lease (the United States court of
the Indian Territory), because of the sub-
ject-matter with which the case dealt (In-
dian lands), and because of the asserted
want of power in the Secretary of the In-
terior to disapprove the lease, and tha
further assertion that the court had n»
authority in any event to subject the lease
to the approval ot such Secretary, that a
writ of error wll) lie from the federal Sn-
M see same tople * KOT-KDHBSR In aU Kar-Nnmbared DIswt* A IndeiM
A^^OOglC
UI«.
WBII.SV1LLE OIL CO. t. MILLER.
Ereme Court to review the judgnieDt of the
ighest eourt of a state, ftdverie to the
lessee fn eucli lease.
[Bd. Note.— Far otber eun. ■•• Courts, Cent
Dig. li m-sit, ai.]
iNDIAIfB «=9l6<3)— On. AKD Oa8 I^abb—
Appbovai. be Ssobxtaby or Intbbiob.
2. The contention thut the condition
Dent for oil and gas puqioees, which w»s
imposed by the court ButhorUin? euch leftee,
was retracted when that court approved
the executed lease before it had been
preeentcd to the Secretary, when it was
reported to the court by tlie guardian of
the Indian allottee, in conformity with
previous directiors to that effect, is plainly
without merit, where the report of t)ie lease
und its approval by the court were merely
prerequfaite and preliminary steps to tlie
aubtnission of the lease to the Secretary for
hia action, in order that ttie condition
precedent which the court had establiahed
might be brought into play, and where every
conditioD of the lease makes it manifest
tliat it waj drawn with reference to the
power of the Secretary to approve or dis-
Bpprove it, and that its execution was aub-
Ject to al] the mnditions, limitations, and
restrictiona resulting from that situation,
and where the petition in the suit to up-
hold the validity of the lease allegea in ex-
presa terms that the Secretary asserted the
power to approve, and that the court, in
giving the authority, acquiesced in such
assertion of authority as a prereijuisite.
[Bd. Note. — For □tbai' ease*, us Indians, Cent.
DiB. I 41.]
JuDOiBNT ^»820(1)— Fuu. Faith ahd
OBiDn^DECBEB or B^debal Gottkt.
3. Failure to give etTcct to a lease of
Ul Indian allotment for oil and gaa pur-
poses is not a denial of full faith and credit
to the order of the United States court of
the Indian Territory, auth'oriiing audi lease,
where the approval of the Secretary of IJie
Interior, made a condition precedent by that
court to the exercise of such authority, was
never obtained.
[Sd. Note.— For othar esses.
Cent. Die. || UU), IRl. ISU.]
[No. B41.]
IN ERSOK to the Supreme Court of the
State of Olclahoma to review a judgment
which dismissed an appeal from a judg-
ment of the District Court of Rogers Coun-
ty, in that state, dismisiing Uie petition in
a suit to protect rights under an oil and
gas lease, and to set aside a subsequent con-
flioting leaee. Affirmed.
See same case below, on flrst appeal, 44
Okla. 463, 145 Pac 344; on second appeal,
— Okla. — , 160 Pac 186.
The facta are stated in the opinion.
Messra. Charles H. Herillat, Jamca A.
Teaaey, Lloyd A. Rowland, and Jere F.
O'Meara for plaintiff in error.
Mr. Robert i. Boone for defendants in
* Mr. Chief Justice White delivered tba'
opinion of the court:
The Wellsviile Oil Company sued to pro-
tect its alleged rights as lessee under an oil
and gaa leaae and to set aside a conflict-
ing lease held by the Alpha Oil Com-
pany. Upon demurrer the petition was dis-
missed for want of cause of action, and
the judgment to that effect was affirmed by
the court below. x
* To state the undisputed facts which led to*
the bringing of the suit, and upon which its
determination depends, will make clear the
isauea Martha Miller, bom Everett, owned
land which had been allotted to her as a
Cherokee of the full blood, and which,
through her guardian, under authority of
court, approved by the Secretary of the In-
terior, had been leased in 1906 for the term
of her minority for oil and gaa purposes, tlie
lease having by assignment passed to the
Wellsviile Oil Company, also with the ap-
proval of the Secretary of the Interior. In
1907 the guardian Bled in the United States
court, northern judicial district of the
Indian Territory, a request for authority to
make a new leaae to the Wellsviile Oil Com-
pany for flfteen years. It was stated that
the minor was then within one year of ma-
jority, that the existing lease would expire
at that time, and tliat the Oil Company, in
view of the short time wliich the leaee had
yet to run, was engaged in pumping oil
night and day and would probably extract
atl of the oil before the expiration of the
lease, to the great detriment and injury of
the minor and her property, aa the price of
oil was very low and the royalties would
amount to very little. It was averred that
the Oil Company had agreed that it would
abandon the "exceasive and damaging pump-
ing" in which it was engaged if it could get
a new lease for flfteen years, and proposed
to pay a bonus and an additional royalty.
The court, after a reference, entered an
order authorizing the lease, expressly, how-
ever, causing the authority to make it to
depend upon the approval of the Secretary
of the Interior, and providing that only
when the lease was so approved should it
take the place of the old and existing lease,
which had yet a. year to run. The order
directed the guardian to report the lease by
him made, and to furnish a new trand to se-
cure the bonus and the additional sums to
be paid. Acting under this authority, on ths
form of lease prepared and exacted by the}
Interior Department, 'the parties executed
the fifteen-year ieaaa. This lease in the
>r other csm
IS topic A KBY-NUllBfl!R In all Ksjr-Numbared Dlaesta ft Indaie*
gic
SH
37 SUFHEME COUBX REPORTEH.
Oct. Tkut,
fuUeat way gare Um Seeretftr; of tha In-
terior control over the pftitieB in performing
the obligationa of the lease, delegated to tha
Secretary authority to cancel the lease with-
out resort to legal proceedings if he deemed
the aituHtion required it, and expreasly
exacted that, after approval by the Secretary,
tlie lease ahould ho void unleas an additional
bond, subject to hia approval, was given.
The leaac tbua drawn was reported to the
court, and was by it approved on July 24,
1907. It was forwarded by the Indian agent
in Oetoiier of that year to the CommiaBioner
of Indian AlTaira for iuliraisBion to the
Secretary of the Interior, and waa by the
Secretary in the aame month expreaaiy die-
approved.
A little more than three yeare I«ter, the
petition to which we have at the outset re-
ferred was RIed, and aome months there-
after, in September, 1011, there wag an
amended petition. Thia petition was divided
into two counts. The &rat, after reciting the
facts which we have stated aa to the making
of the new lease and the disapproval of the
same by the Secretary, charged that the
plaintilT had remained In poasesslon of the
property under the new lease; that it
worked and developed the same, producing
oil therefrom, but that it was unable to dis-
pose of the oil, as the only means for its
outlet WBB through the pipe line of the
Prairie Oil Company, and that company,
under the influence of the Secretary of the
Interior, had refused to pay (or the oil on
the ground of the nonexistence of the Icane.
It was further charged that aome time after
Martha Miller, the lessor, had become of
age, she had leased the property to the
Alpha Oil Company for gaa and oil purpoaes,
tliat that company had fraudulently inter-
fered with the exercise of the rights of
plaintiff under its lease and had ousted the
plaintilT of possession and had wrongfully
held poBSPssion until 1010, in which year it
* had abandoned the property. It was alleged
• that, following thia •abandonment, the plain-
tiff had retaken possession and continued to
produce oil and transmit it through the
pipes of the Prairie Oil Company without
pay, as io the previous period. It waa
charged that the fiftcen-ycar lease was valid,
that the Secretary of the Interior waa
wholly without authority of law to dis-
approve the aame, that while the court, in
sanctioning the lease, had acquiesced in bis
claim of authority to do so, that acqui-
escence was nothing worth, and the lease, as
made, was valid notwithstanding the dis-
approval of the Secretary. There waa an
inconaistent claim in the petition that the
court, by approving the lease as presented
by the guardian prior to ita tranamission to
the Secretary of the Interior far hia action.
had virtually sanctioned the lease, upon the
theory that the approval of the Secretary
was not necessary. The second count as-
serted, under the theory of the validity of
the lease, the liglit to the proceeds of the
oil in the hands of the Prairie Oil Company,
and even upon the hypothesia that the lease
was invalid, the right to be reimbursed a
very large amount of expenses and coats
of improvements which it wna alleged had
been made in working and developing the
property.
The prayer was for a Judgment uphold-
ing the validity of tlic fifteen-year leaae, aJid
annulling the leaae to the Alpha Oil Com-
pany, and awarding the proceeds of oil in
the hands of the Prairie Oil Company to the
plaintiff. It was further prayed, under the
hypothesis that the fifteen-year leaae should
not be upheld, that there be a judgment for
the costs and expenses, aa averred in tha
second count.
The petition was demurred to on tha
ground that it stated no cause of action.
The demurrer was suatained, and as tha
plaintiff elected to stand upon its pleading,
a judgment was entered diamisaing the peti-
tion on the merits. Bj order of court and
consent of parties it came to pass that tha
proceeds of the oil which had been hithertOH
•leceived by the Prairie Oil Company were-
subjected to the order of the court for ulti-
mate distribution, and an agreement was
had couceraing the right of the Prairie Oil
Company to retain the proceeds of the oil
produced by the ope rat ion a under the lease
until it became passible to distribute the
same by a final diepoaition of the cause.
The case was then taiien to tlie court beluw.
It was there decided: (a) That the plain-
tiff was not in a position to invoke tha
equitable powers of the court for the purposs
of enforcing the fifteen-year lease because it
appeared that the leaae bad been procured
by the wrongdoing of the petitioner in ei-
ceasively exercising its right to pump as a
means of forcing the making to it of a new
lease for a long period) and (b) that in any
event, as the new lease had, by the order
of the court, been in express terms subjected,
as a condition precedent, to the approval of
the Secretary of the Interior, the failure of
that officer to so approve, indeed, his express
disapproval, had prevented the power to
make the lease from taking being, and
therefore there was no foundation whatever
upon which to base the claim that tha lease
had been lawfully eNecuted, and it was beld
that there was hence no necessity for pasa-
ing upon the question of legal power in the
Secretary t» approve or disapprove. In
other words, it was decided that if the Secre-
tary had power, the failure to approve waa
an end of the controversy; if ha had not
D,at,z.d-,.'^-.00'^IC
1916.
WBLL8VILLB OIL 00. t. MUXBR.
the power, tbn urns result followed, since
the court which granted the light bftd, in
«ipreBS tcTtne, permitted it t« be exercised
only upau the precedent condition that its
«xertiDii was approved by the Secretary. In
addition the court held that the contention
that becaoae the form of lease as drawn waa
reported to the court, which had given the
authority to make it, subject to the approval
of the Secretary of the Interior, and re-
ceived its approval before action by the
Secretary, therefore the condition of prece-
H dent action of tlie Secretary was waived or
• withdrawn, was without* foundation. The
court did not pass upon the question ra
upon the second count concerning the right
to recover costs and ezpeneee if the leaee
were held not to exist, upon tlie ground
that, as the petitioner was in posseeeioo,
that queetion might be reserved for ulterior
consideration. 44 Okla. 4S3, 146 Fac. 344.
Following this judgment the trial court
distributed the money which had accumu-
lated in its custody by virtue of the agree-
ment previously made ae well as a further
sum derived from the delivery of oil from
the IfREed property whleli wai in tlie hands
of the Prairie Oil Company. This diatri-
bution WM made upon the basis of tbe non-
existence of the fifteen-year lease, of the
right of Martha Miller to poBBeeeion subject
to the lease by her made to the Alplia Oil
Company, on a ratio which was agreed upon
between the two intei'eeted parties, and
there was a judgment against the Welts-
Tille Oil Company for costs. The appeal of
that company, taken from this order, wae
dismissed by the court below on the ground
that the order eubstantially embraced only a
distribution of funds which had been
virtually directed to be diBtributed by the
previous judgment. In thus disposing ot
the case it *»■» held that the assignment of
•rror made by the Wcllsville Oil Compsjiy
concerning the failure to allow it costs and
cxpensee, ae urged in the second count of its
petition, wae not forecloeed because, being in
possession, ae previouely held, that subject
might be litigated when an attempt to oust
the possession was made. In tliis connection
the court observed that while it was true a
recital was contained in the order of distri-
bution that Martha Miller was entitled to
poaeeeBion oa owner, as no procees wae
directed to Issue giving effect to this de-
cree, it was a mere surplusage, which left
the question open, — Okla. — , 150 Pao,
186.
All consideration of error committed in
•srefusing, in either judgment, to allow tlis
• costa and expenses asserted in the*secon<}
count of the petition, may be at one* put
■aide, a* it is declared in the argument for
the plaintiff In error tliat this partlenlkr
phase of the ease is not urged. Moreover)
before coming to consider the merits of the
errors relied upon, we observe that because
of the Federal nature of the court wblcb
Buthoriied the lease whose validity was in-
volved, the subject-matter with which the
case dealt (Indian land], and the aseerted
want of power in the Secretary of the In-
terior to disapprove the lease, and tbe
further assertion that the court had no au-
thority in any event to eubject the lease to
the approval of the Secretary, wa think the
issues involved so concern matters of in-
herently Federal nature as to afford juris-
diction. Svrafford v. Templeton, 18& U. 8.
487, 46 L. ed. 1006, 22 Sup. Ct. Rep. 783i
Fritslen v. Boatmen's Bank, 212 U. 8. 864,
G3 L. ed. G61, 2» Sup. Ct. Rep. 380; Ohio ex
rel. Davis v. Hildebrant, 241 U. S. S6S, 60
L. ed. 1172, 36 Sup. CL Rep. 70S. We there-
fore overrule the motion to dismiss.
Without following the elaborate argu-
ment ot the plaintiff in error and the vari-
ous propositions which that argument ad-
vances, we content ourselves with saying
that every propoeition relied upon will be
embraced and disposed of by these con-
siderations :
First. Tlie contention that the court
which authorised the lease retracted the con-
dition precedent of approval by the Secre-
tary of the Interior which it had previously
imposed because It approved the executed
lease before it had been presented to the
Secretary, when it woe reported to the court
by the guardian in conformity with previous
directions to that effect, is plainly without
merit; (a) Because, as pointed out by the
court below, the report of the lease and its
approval were mere prerequisite and pre-
liminary steps to the submission of the lease
to the Secretary for bis action in order that
the condition precedent which the court had
establielied might In brought into play; (b)
because the contention Is directly in conBict
with the express terms of tbe leam whidi
was submitted and approved, every con-^
dition of which made it manifest that it was*
drawn with reference to the power of the
Secretary to approve or disapprove the
eame, and that its execution was subject to
all the conditions, limitations, and restric-
tions resulting from that situation; (c) be-
cause the contention is directly in conflict
with the petition which, as we have already
pointed out. In express terms allied that
the Secretary asserted the power to approve,
and that the court, in giving the authority,
acquiesced in such assertion of authority aa
a prerequisite-
Second. The contention that the failure to
^Ire effect to the lease was a denial of full
tkitlt and credit to the order of the court
A^iOOglC
S7 SUPBEMS COUBT BEPOBIBB.
Oct. TXMM,
MatbtaUittg tha purdfam to malce tba leau
IhtoIvm on its faca ■ miaconeeptioii and
comcB to Hiymg tbat becauie tha ooudition
precedent which was impoaad by tha order
o[ author iiatioD, that is, the approval of the
BMretary, wu enforced, thereby there ra-
■nlted a lailore to give effect to the order.
In other words, the argument la, that be-
cause the court gave full effect to the judg-
ment, it failed to carry It out. In fact, on
the very face of the petition, of the assign-
menta of error, and of all tlie arguments, it
ia apparent that they rest upon the plaial;
erroneous assumption which we thus point
out, since they all but assert that the power
to execute the lease, which was given only
upon the precedent condition of approval 1^
the Secretary, should have been upheld de-
spite the fact that such approval was never
obtained. As the petition averred that,
acquiescing in the possession by the Secre-
tary of legal authority to approve the lease,
tlie court gave the right to make it, only
conditioned upon aucb approval, it follows
that the averment that there was no legal
power in the Secretary to approve was
negligible, since It but asserted that the
power to make the lease never arose.
(US tr. B. U)
ALLEN BOND and William J. Buttfleld,
Partners as Bond t Buttfield,
J. L. HUME.
OAiniia «=32— CoNFTJCT of Laws— Con-
TRAOTB— FurnnKi — Public Policy,
1. The public policy defined by the pro-
Virions of Tex. Rev. Grim. Stat. 1911, arts.
CSS, 63S, making criminal all dealings in
futures where certain prescribed conditions
as to delivery, option, and ultimate per-
formance are not exacted or do not exist,
will not be violated by the enforcement in
a Federal court, sitting in that state, of a
contract made and executed In the state of
New York, and valid under the laws of
that state, between a citizen of New York
and a citizen of Texas, for tba sale of cot-
ton for future delivery upon the New
York Cotton Exchange (with the under-
standing that actual delivery was contem-
plated), pursuant to the rules, regulations,
customs, and usagss of said Exchange,
one of which provides that the cot-
ton may be "of any grade from Good Ordi-
nary to Fair inclusive, ... at the
price of ' cent* per pound for middling,
with additions or deductions for other
grades according to the rates of the New
York Cotton Exchange existing on the da;
previous to the date of the transferable no-
tice of delivery."
raa. Kote.— For other cssei. sea Omnlng. Cent.
Oaxnfa 4c»49(l)— Pleadiro — Tbotb of
ALLaaxTions— Statdtobt PBEsmtpnoit.
2. The general provieions of Tex. Kev.
Crlm. SUt. Igll, arts. 645, Mfl, that when-
ever a criminal prosecution is commenced
against a person who may have made a par-
ticular future contract containing provi-
sions in violation of t^e statute against
futures the presumption shall be prima
facie that, the illegal conditions forbidden
by that statute existel, and, therefore, that
there was guilt, until the contrary was
shown, affords no ground for holding, in a
civil ease brought to enforce a contract for
the sale of cotton for future delivery, that
the averments of tha petition must be taken
to be untrue Id order to defeat the suit.
.For oUisr cms, ■•« Oamlnc Oent.
31l. I 1O0.1
ON A CERTIFICATE from ths United
States Circuit Court of Appeals for the
Fifth Circuit presenting the question as to
whether the enforcement in Texas of a New
York contract for the sate of cotton for
future delivery was prevented by the Texas
statute againit futures. Answered ia the
negative.
Statement by Mr. Chief Justice White: %
'"This action was Instituted in the United*
Stat«s circuit court for the western dis-
trict of Texas, at Austin, on the 23d day
of February, 1910, by Allen Bond and Wil-
liam J. Buttlleld, plaintiffs, against J. L.
Hume, defendant, to recover the balance
due upon an open account for money ad-
vanced to defendant, and paid, laid out, and
expended for his account, and for services
rendered and performed for defendant at
his special instance and request at divers
times between the lat day of July, 1907,
and the 1st day of June, 1008, at the city,
county, and state of New York, in connec-
tion with the purchase and sale for defend-
ant's account of cotton for future delivery
upon the New York Cotton Exchange, pur-
suant to the rules, regulations, customs,
and usages of said E^ichange, and for tba
amount due upon a certain promissory note
executed by defendant, payable to the order
of J. W. Buttaeld, and by tha latter as-
signed to the firm of Bond and Buttlield.
"The plaintiffs' flrst-amended original
petition contains the following allegations:
" 'The plaintiffs at tha apecial instance
and request of the defendant at the cit^,
county, and state of New York, advanced
to the defendant and paid, laid out, and ex-
pended for his account divers sums of mon-
ey, and did and performed for said defend-
i< topic t KBt-miUBBR In all Ker-Numbeted Dlicata * It
D,at,z.,i-.,'^-.00'^IC
191S.
BOND T. HUME.
S«7
*aiit at the dt^, ooUD^, uid*itat« of New
"York, dlT«Ts serriceH in wid about the pur-
chase and sale of the defendant account
cotton upon the New York Cotton Bxehange,
and in pnrsuanee of the mles, regulations,
customs, and usage of the said New York
Cotton Excbange, a cop; of the rules and
by-laws and regulations being hereto at-
tached and marked exhibit A, and aslcDd to
be made, etc.
" 'That the said services were rendered and
said monej paid out \ty them to said de-
fendant for and at his request in buying
and selling for his said account ae his agent
ootton for future deliver; according to the
rules and regulations of the New York Cot-
ton Exchange in the city of New York, a
copy of said rules and regulations being
hereto attached and marked exhibit, etc.
" 'Said orders for the purchase and sale
of cotton for future delivery were received
by plaintiffs and executed with the under-
standing and agreement between the parties
that actual delivery for this account was
contemplated, subject to the rules and by-
laws of the said New York Cotton Exchange,
M bereto attached and marked said exhibit
A.
" 'Plaintiffs allege further that th^ made
said purchase and sales of the cotton for
and at the request of tba said defendant at
the prices respectively authorized by him,
and at his instance and request entned Into
binding contracts of purchase and sale for
future delivery in accordance with the said
rules and by-laws of the said New York
Cotton Exchange, a copy of said rules and
by-laws being hereto attached and marked
•xhibit A, and made a part of this petition.
"'Plaintiffs further allege that at the
several times they made said purchases and
sales for the defendant he well knew that
actual delivery was contemplated, end well
knew that plaintiffs were to make end did
make eald purchases and snips under and
subject to the rules and by-laws of the
■ New York Cotton Exchange, and were held
• personally bound for carrying out said con-
tract, as will more fully appear by reference
to said rules and by-laws hereto attached
and marked exhibit A, and plaintiffs allege
that they promptly advised the defendant
of the said several purchases and sales, and
that said purchases and sales were mads in
accordance and with his instruction, subject
to the rules and by-laws of the New York
Cotton Exchange, and that said orders for
the purchase and sale of cotton for future
delivery were received and executed with
the distinct understanding that actual ds-
livery was contemplated, as provided by the
by-laws and rules of said Exchanga, as will
more fully appear by rderence to taid ex-
hibit A.'
*^e by-laws of the New York Cotton Ex-
change pleaded by the plaintiffs euitain the
folkiwing provision:
" The ootton to bs of any grads from
Giood Ordinary to Fair, Inclusive, and If
tinged or stained not below Low Middling
Stained (New York Cotton Exchange in-
spection and classification ) at the price of
cents per pound for middling, with ad-
ditions or deductions for other grades ac-
cording to the rates of the New York Cot-
ton Exchange e:(isting on the day previous
to the date of the transferable notice of
delivery,'
"To this pleading the defendant, in the
tower court, interposed ths following ex-
" 'I. Now comes the defendant In ths
above-entitled cause by his attorney, and ex-
cepts to plaintiffs' petition herein and says
that the same is not sufficient in law to re-
quire him to answer, and should be dis-
missed.
" 'II. And tor special cause of exception
defendant shows the following:
" '1. It Is apparent from the face of
plaintiffs' petition that the balance due up-
on the alleged account sued on arose out of
a gaming transaction In cotton futures on
the New York Cotton Exchange^ that none 2
of the cotton 'alleged to have been bought*
and sold was delivered, but the account sued
on simply reprcBents the difference in the
rise and fall of the market on said Cotton
Exchange, and were alleged ta have been
settled by plaintiffs by paying or receiving
a margin or profit on each contract, as
shown in said account, and that the alleged
balance claimed by plaintiff to be doe from
defendant consists of said alleged margin
or profit.
" '2. It appears from plaintiffs' petition
tliat said allied account sued on arose out
of transactions on the New York Cotton Ex-
change, and pursuant to the rules, regnlo*
tions, customs, and usages of said Exchange,
and does not show or set forth that in ths
settlement or closing out of said transao-
tlou sued on by delivery or tender of any
grade or grades of cotton other than the
grade upon which the prices were based in
the transaction sued on, that the same were
settled or closed out at the actual price for
spot delivery of such other grade or grades
at the time and place of delivery or tender.'
"Upon this record the court below entered
the following order;
" Thereupon cams on to bs heard the dc-
nrrers and ezoeptions of defendant to
plaintiffs' amended petition, and the sams
having been heard and duly considered, it
the opinion of the court that said demur-
rs and exceptions should be sustained, and
It Is accordingly so ordered, and tits plsln-
A^^OO^IC
37 SUPREME C»URT REPORTBB.
Oct. I^SH.
tiffs declining to amend, it is further or-
dered tiiat Bsld cause be and Uie Bome is
lierebj dismiBBed at the cost ol plaiotiffe, to
irhich order of the court eustaiuing said de-
murrers and exceptions, and diuaissing said
cause, the plaintiffs in open court exj^ept-
Hesm-i. Charles Pope Caldnell and W.
D. Caldwell for Bond et al.
No brief was filed for Hume.
£
" • Ur. Chief Justice Wlilte, after st&tlng
the contents of the oertiflcat« of the c
below as above reproduced, delivered the
i^inion of the court:
The question as to which the court below
desires to be instructed upon the case m
stated ia the foregoing cartiflcata is this:
"Where a contract between a citizen of
the state of New York and a citizen of the
state of Texna la entered into, made, and
cuted in the state of New York, for the sale
of cotton for future delivery upon the
New York Cotton Exchange, pursuant to the
rules, regulations, customs, and usages of
said Exchange, and the same is a valid ex-
igible contract in the state of New York,
does the statute of the state of Texas
(known Bs the 'Bucket Shop Law") passed
bj the 30th legislature of the state of Texas,
in 1907, the same being incorporated in the
Beviaed Criminal Statutes of Texas (lOH)
as chapter 3, pages 141, 142, or any public
policy therein declared, prevent a district
court of the United States, sitting in Texas,
wherein a suit is brought to recover for
breaob of said contract, from granting such
relief as otherwise but for such statute tlie
parties would be entitled to have and re-
We construe the question aa simply ask-
ing whether, under the pleadings as stated
iu the certificate, a cause of action was dis-
eloeed which there was jurisdiction to hear,
taking into consideration the local law, in-
cluding the provisions of the Texas statute
referred to in the question.
It is obvious on the face of the pleadings,
as stated in the certificate, that the con-
tract the enforcement of which was sought
was valid under the laws of the state of
New York, the place where it was entered
into and where it was executed, and this
validity was not and could not be affected
by the laws of the etate of Texas, as, in
^ the nature of things, such laws could have
' BO extraterritorial •operation. This conclu-
sion is, however, negligible, as the question
ia not whether the contract was valid, but
vheUier, being valid under the law of New
York, it was susceptible, consistently with
the laws of Texas, of enforcement in the
oouita of the United States, sitting in tliat
state. And this question involve* the in-
quiry. Was there any local public policy in
the state of Texas which, consistently with
the duty of the courts of that state under
the Constitution to give eflect to a cantract
validly made in another state, was suMcient
to warrant a refusal by the courts of that
state to discharge such dutyT
A statement of a few elementary doctrine*
is essentia] to a consideration of this issue.
Treating the two states as sovereign and
foreign to each other, — New Yorli, under
whose laws the contract was made and
where it was valid, and Texas, in whose
courts we are assuming it was sought to be
enforced, — it is elementary that the right
to enforce a foreign contract in another for-
eign country could alone rest upon the gen-
eral principles of comity. But, elementary
as is the rule of comity, it ia equally rudi-
mentary that an independent state under
that principle will not lend the aid of its
courts to enforce a contract founded upon a
foreign law where to do bo would be repug-
nant to good morals, would lead to disturb-
ance and disorganization of the local muni<
cipal law, or, in other words, violate the
public policy of the state where the enforce-
ment of the foreign contract is sougbt. It
is, moreover, axiomatic that the existence of
the described conditions preventing the en-
forcement in a given caae does not exclusive-
ly dqiend upon icgielation, but may result
from a judicial consideration of Uie Bubjvct,
although it is also true that courts of one
sovereignty will not refuse to give effect to
the principle of comity by declining to en-
force coatracts which are valid under the
laws of another eove reign ty unless con-
strained to do so by clear convictions of tiie
existence of the conditions justifying thatS
course. And^naily, it is certain that, as ii»
is peculiarly nithin the province of the law-
making power to dcQne the public policy of
the state, where that power has been exerted
in such a way as to manifest that a violation
of public policy would result from the en-
forcement of a foreign contract validly en-
tered into under a foreign law, comity will
yield to the manifestation of the legislative
will and enforcement will not be permitted.
It is certain that these principles which
govern as between countries foreign to each
other apply with greater force to the rela-
tion of the several states to each other,
Bince the obligations of the Constitution
which bind them all in a common orbit of
national unity impose of necessity restrio-
tions which otherwise would not obtain, and
exact a greater degree of respect for each
r than otiierwise by the principles of
[ty would be expected. It is unnecea-
sarj to cite authority for these several doo-
trines since, as we have said, th^ are in-
D,at,z.d>,.'^-.00'^IC
1916.
BOND V. HUHE.
ts»
disputftble; but they nowbere find & more
lucid exposition than t^t long- ago mMle
by Mr. Cliief Justice T&ney in Bank of
Auguita V. Earle, 13 Pet. 619, 68U, 6B0, 10
L. ed. 274, 308, SOB.
GDming to apply then prlneiplea from
general conaiderationB, u it is undoubted
that the New York contract KB declared ou
Tvas not only vaiid under tlie luw of Mew
York, but wEia not repugnant to the com-
mon or geniiral law, a« long sinc^ settlo] by
this court (Irwin v. Wtlliar, 110 U. S. 499,
28 L. ed. 225, 4 Sup. Ct. Hep. 180; Bibb t.
Allen, 146 U. S. 481, 37 L. ed. 810. 13 Sup.
Ct. Rep. 9S0; Clews v. Jamieson, 182 U. S.
401, 45 L. ed. 1183, 21 Sup. Ct. Rep. 84S),
and ae we have been referred to and have
been able to discover no decieinn of the
courts of Texas or statute of that itate
eauiing ita enforcement to l>e repugnant to
the public policy of Texas, it must result
that the question would have to be answered
in the negative unieee a different conclu-
•ion ie required by the provieions of the
particular state statute referred to in the
question.
The statute is criminal and ptovidee n
*f pnnisliment for the offoises which it defines,
• and tha ailment is that,*thie being true,
it necessarily forbids, as a matter of public
policy, the enforcement in Texas of con-
traota, although lawful by the laws of an-
other state, which, if entered into In Texas,
would be criminal, since it must he that the
public policy of Texas exacts that the re-
sults of a contract which, if made in Texas,
would be punished as a crime, shall not be
susceptible of enforcement in its civil courts
because made in another state. But, with-
out stopping to analyie the authorities re-
lied upon to sustain the proposition in or-
der to determine whether they support the
doctrine as broadly stated, we observe that
although the proposition were to be eon-
iTexas Kevieed Criminal SUtutes 1911,
title 11, chap. 3, p. 141.
Art. 638. A bucket shop defined. — A buck-
et shop, within the meaning of this law, ie
any place wherein dealing in futures is car-
ried on contrary to any of the provisions
Art G39. P^turee or dealing in futures
defined. — By each of tha expressions, "fu-
tures," "dealing in futures," and "future
contracts," as these terms are used in
this Ian is meant: 1. A sale or pur-
chase, or contract to sell, or any ofTer
to sell or purchase, any cotton, grain,
meat, lard, or any stocks or bonds of any
corporation, to be delivered In the future,
when it was not the bona fide intention of
the party being prosecuted under this chap-
ter, at the time that such sale, contract, pur-
chase, or olTer to sell or purchase, was made,
that the thing mentioned in such transac-
tion should be delivered and paid tor as
37 S. a— 24.
ceded for the sake of the argument only,
that concession is immaterial for this rea-
son: The statute relied upon (the pertinent
sections are In the marginl) does not make^
criminal all sales tor future delivery'of the*
property described, but only forbids and
punishet the making of contracts of that
nature where certain prescribed conditions
are not eccacted or do not exist. It looks,
therefore, not to prohibit all such contracts,
but to secure in all when made in Texas
the presence of conditions deemed to be es-
sential. Indeed, it goee farther, since even al'
though the contract on the subject may have
been made with the express stipulation as
to delivery exacted by the statute, never-
theless crime and punishment may result as
against a particular party to the contraot
who, in bad faith, haa assented to the ex-
press stipulation, which otherwise would be
valid. These eoncluslone we think plainly
result from the definitions which the stat-
ute makes in the first class as to delivery,
in the second elasi as to option, and in the
third aa to ultimate performance, none of
which conditions, we think, can bo said to
necessarily embrace the contract sued upon,
taking the facts alleged in the petition to
be eEtablished. It ie true the statute con-
tains general provisions in articles G45 and
640 (which we do not reproduce) that
wherever a criminal prosecution is com-
menced against a person who may have
made a particular future contract contain-
ing provisions in violation of the statute,
the presumption shall be prima facie that
the illegal conditions existed, and therefore
that there was guilt until the contrary was
8)iown. But we are of opinion that this
alTords no ground in a civil case brought to
enforce a contract, for holding that the aver-
ments of the petition must be taken to be
untrue in order to defeat a right to be
heard, simply because, under a criminal
specified in such transaction. 2. Any such
sale, purchase, offer or contract, where it
was the intention of the party being prose-
cuted hereunder at the time of making such
contract or offer, that the same should, or,
at the option of either party, miglit be
settled by paying or receiving a margin or
profit on such contract. 3. Any purchase,
sale or offer of sale or purchase, or contract
for future delivery of any of the things men-
tioned in this article on, hv or through any
exchange or board of trade, the rules, by-
laws, customs or regulations of which per-
mit such contract or transaction to be set-
tled or closed by delivery or tender of any
grade or grades of the thing mentioned la
such contract or transaction, other than the
giade U[)on which the price is based in said
transaction, at any price other than tha
actual price tor spot delivery of such other
grade or grades, at the time and place of dft>
Hverj or tender.
,A_,OOglC
870
ST SnPBBMB GOUST BBPORTER.
■tatute BB to particular offenses, thg Imrden
of proof ia shifted.
Concluding, as we do, that, accepting the
g mverments of the petition aa true, the cause
■ of action was Buaceptibla'of being beard in
the courts of Texas, and therefors vas al-
■o susceptible of being brought In the courts
of the United States in that state, we are of
opinion that the queation asked should be
replied to in the negative. And of course we
must not be understood as deciding whether
the mere existence of a state statute punish-
ing one who, In bed faith, and because of
Buch bad faith, had msde an agreement to
deliver in a contract of sale which would be
othsrwiae valid, could become the basis of
Ik public policy preventing the enforcement
in Texas of contracts for sale and delivery
made 'in another state which were there
valid, although one of the parties might
liave made the agreement to deliver in bad
faith. In other words, wa must not be
understood as expressing any opinion on
the subject of wbetlier, consistently with
the verf nature of Uie relations between the
several states resulting from the constitu-
tionai obligations resting upon them, the
courts of Texas, under the guise of a public
policy resting merely on the conditions
Bt«ted, could rightfully refuse to enforce a
contract validly made in another state, or
at all events whether, under such circum-
stances, such a contract would not, in the
nature of things, be enforceable in the ap-
propriate courts of the United States.
A n^ativB answer is therefore made to
the question astced, and It is ordered that It
bs M certified.
<M D. B. sn
UmON NATIONAL BANK ud Hand
Oatch, Substituted for H. N. Morris, as
Keceiver of said Union National Banlc,
PlSs. in Bir.,
GEOBGB UoBOYLB and Lulu Hay Ho-
Boyle.
CouBTs «=9S94(19)— Bbbor to State Coxtbt
— Fedebal QTrasnoH— Natiosal Banks.
The contention that, consiBtently
with the National Bank Act (U. B. Rev.
Stat. §g G1S3 et seq., U. 8. Comp. Stat 1B13,
SS 9658 et seq.) , the rules adopted by the
board of directors of a national bank could
not be interpreted as empowering the cash-
ier to sell shares of stock iielonging to the
bank, presents no substantial Federal ques-
tion which wilt support the appellate juris-
diction of the Federal Supreme Court over
« state court, where no question is made aa
to the powers of tlie tiank, tho issue being
one of Interpretation, not of the 8t*tnt«,
but of the rules.
[Ed. Nota,~-iri]r other casn, *•• Conrts, Osnt
Dfg. I I«8.1
IN ERROR to the Supreme Court of th*
State of California to review a judgment
which, on a second appeal, affirmed a judg-
ment of the Superior Court of Alameda
County, in that state, declaring plaintiffs
to be the owners of certain shares of stock
which they had purchased from the cashier
of a national bank. Dismissed for want of
jurisdiction.
See same case below, on first appeal, 162
Cal. 277, 122 Pao. 466; on second appeal,
168 Cal. Z83, 142 Pac. 837.
The facts are stated in the opinion.
Messrs. Charlea A. Beardsle;, R. M,
Fitzgerald, and Carl H. Abbott for plaintiffs
Messrs. WiUUm H. Orrick, H. A.
Powell, T. C. Coogan, and Julius Kabn lor
defendants In error,
Hr. Chief Justioe 'Wblte delivered tlis
opinion of the court:
McBoyle and his wife sued the bank to r»-
cover 599 shares of the stock of the Bum-s{
ham-Standeford Company,* which it was al-"
leged they had purchased from the bank,
and which, after payment of the cash part
of the price, had been placed with it as col-
lateral to secure a note evidencing the credit
price. It was alleged that, despite a tender
of the purchase money due, the bonk had re-
fused t« deliver the stock. The answer of
the bank, while not denying the sale of the
stock to McBoyle, charged that the
■ale had been fraudulently procured by
him, and, besides, that the sals was void be-
cause it was made by the cashier, who was
without authority to do so. It was, more-
over, alleged that the sale had been repudi-
ated by the board of directors, and that
there had Iwen a tender of the cash price
paid and of the note given for the balance.
The supreme court of the Btat«, in review-
ing and reversing a judgment of the trial
court in favor of the bank, held that there
was no proof of fraud in the sale frixn the
bank to McBoyle, and that from a considera-
tion of the authority of the cashier, in the
light of the power conferred upon that of-
ficer by the board of directors, and the
nature and character of the transaction, tbs
cashier had authority to make the sale, and
it was therefore valid. The ease was re-
manded tor a new trial. 162 CaL 277, 128
is topic ft Kar-NUXBBB In aU Ker-HamMied DiKWte * lodan*
A^^OOglC
101«.
BOWBBSOCK <t. SMITH.
S71
Fac 4S8. Before that trial tlw bank amend-
ed ite answer by aaaertiDg that authority
In the cashier to sell Bharea of itock belong-
ing to the bank oould not be Enitained witli-
«ut a violation of tlie National Banlc Law.
The aupreme court, to which the case was
again taken, in afGrming a judgment of the
trial court, awarding the itock to McBoyle,
pointed out that while the National Bank
Iaw conferred no author it j on national
banks to buy stock for ipeculation or Invest-
ment, yet such law did not prevent them
from taking stock as security for loans made
in the due course of buiiaesa, from realiz-
ing on the eecuritj In default of payment of
the ioan, and consequently, when needs be,
from buying in the security to protect the
bank, and from selling the security aft«r it
•Bbad Iwen bought in, for the purpose of
« realidog on the same. Thus recognizing the
right of the liank, consistently with the
National Bank Act, to acquire the stock, and
treating the power to sell it as being in-
diq>utably rested at least In the board of
directors, the court adhered to the opinion
which It bad previously expressed that the
|K>wer in the cashier to make the sale in
queetion was suacsptible of being deduced
by fair implication from the rules adopted
by the board of directors for the government
of the buainese of the bank and from the
circumstances of the case. 168 Cal. 263, 142
Pac. 837.
Hie case ie here in reliance upon the
Federal queetion supposed to have been
raieed by the amended answer and the rul-
ing just stated; that ia, the asserted viola-
tion of the National Bank Act which arose
from implying from the rules adopted by
the board of directors, authority in the
caahier to make the sale. We say this Im-
cause there is no pretense that the caae, as
presented Iielow or as here made, raiaed any
questicm concerning the power of a national
bank in good faith, in the due course of
business, under the law, to loan on capital
stock aa collateral and realise on the same.
But when the issue ia thus accurately flied.
It is apparent that while in mera form of
expression it may seemingly raise a ques-
tion under the National Bank Act, in buI>-
atanee it preaenta no question of that char-
acter whatever, since It simply concerns an
interpretation, not of the statute, but of
the rules adopted by the Ijoard for the
government of the bank, involving, in what-
ever view be taken, no exercise of power t»e-
yond tiiat which it is conceded the National
Bank Act conferred. To illustrate, if in ex-
press terms the board of directors had
clothed ttie caahier with power to make the
■ale, there can be no question tliat they
would have had authority to do so under
tka statute, — a eoncluslon which makes it
clear that the determination of whether, by
a correct Interpretation of the rules adopt-
ed by the board, power did or did not existg
in the caahier, involves not the atatute,*bul*
the mere signiBcance of the rulea. Ttiat,
coining to thia, the contention involves no
question under the National Bank Law upon
which to base jurisdiction to review, ia ao
concluaively aettled as not to be open.
Le Saaaier v. Kennedy, 123 U. S. G21, 31 L.
ed. 262, 8 Sup. Ct. Rep. 244; Cliemical Xat.
Bank v. City Bank, ISO U. 8. 646, 40 L. ed.
GS8, 16 Sup. Ct. Hep. 417; Union Nat. Bank
V. Louisville, N. A. 4 C. R. Co. 163 U. S.
S2S, 41 L. ed. 177, 16 Sup. Ct. Bep. 1039;
Leyson v. Davis, 170 U. S. 36, 42 L. ed. 030,
IB Sup. Ct. Bep. 600; Capital Nat. Bank v.
First Nat. Bank, 172 U. S. 425, 43 L. ed.
502, 19 Sup. Ct. Rep. 202. It follows, there-
fore, that aa there is nothing within our ■
competency to review, the writ of error
must be and it ia dismissed for want of
jurisdiction.
J. D. BOWERSOCK, Plff. in Err,
Con BTiT uno it ai, Zttw ^ssoi — Uastxk
AMD Sesvant *3ll — Ddb Pkocebb of
Law — RExznm akd Pbocedube —
AaoLiBBina Cohuott-Law Dxtinsu —
BuBDiK OF Pnoor.
1. A state, when requiring, for the pro-
tection of employeea engaged in hazardous
occupations, tliat dangerous machinery be
safeguarded, and when making the failure
to do so an act of negligence upon which a
cause of action may be based in case of in-
jury resulting therefrom, aa ia done by Kan.
LawB 1003, chap. 350, may, consistently
with due process of law, alao provide that.
In action! brought under auch statute, the
doctrines of contributory negligence, assump-
tion of riak, and fellow servant shall not
bar a recovery, and that the burden of proof
shall be upon the defendant to show a com-
pliance with the act-
[Bd. Note.— For othar eaao, Ue Constitutional
Law, Cunt. Dig. H SU-SU, KT.]
CONBTITUTIONAI. LAW ^=301 — MASTBB
AMD Servast «=3ll — Dub Fsocbsb of
Law— Doty to Safxqitabd MACHnriBT
— CONTBACT ETEUPTIOir — EMFLOTEE'S
Own NBauQENCE.
2. Upholding a recovery under Kan.
Lawa 1903, chap. 356, In an action for the
death of a factory auperintendent, cauaed
by unguarded machinery, despite the fact
that ho had authority and was charged
with the duty to safeguard auoh machinery,
does not cauae the statute to be repugnant
to the due process of law clause of U. 8.
Const. 14th Amend., as making the em-
ployer liable and allowing a recovery l^
the employee because of the latter'a neglect
of duty, where the statute, as interpreted
by the state - courts — a construction which
CssFor otber eases s<
!• topic * KET-NUHBBB m all Ke;-Numbsr«a DtgesU A Indnas
L,3h.. A_iOO^IC
87 S0PEEMB COURT REPORTEB.
e CoQiUtuUonal
372
is not challenged,— imposes • duty u to
anfeguardi upon the employer which 19 ab-
solute, and as to which he c»nnot relieve
himself by contract.
[Bd. Nota.— For otho
Law, Cent. DtE. ii StS-
CoNBTlTnTlONAI, Law 18=245 — Bqtiai,
Pbotection of thb Laws— DisCRiinNA-
TioN— Individuals amd Cobpobationb—
DUTT TO Safbgpasd Machimebt— Ook-
TRACT Exemption.
3 Factories owned and operated by in-
dividuals are not unconatitutionally dis-
criminated against in favor of those car-
ried on by corporations hj the provisions
of Kan Lawa 11)03, chap. 350, which require
dangerous machinery to be safeguarded, and
make a failure in that reapect an actof
nesli"encc upon wliich a oauae of action
mav^E baaed in case of injury resulting
therefrom, aince that atatuta imposes the
positive duty to have the machinery duly
safeguarded, whether the owner be an
dividual or a corporation, and fortjidB
porations, equally with individuals, from
escaping by con(
[Kd, Now.— For oiaer
Law. Cent. Dig. I 102-1
the liability which the
CunstltnUonsl '
[Ko. 172.1
IN ERROR to the Supreme Court of the
State of Kansas to review a judgment
which affinned a judgment of the District
Court of Douglass County, in that state, in
favor of plaintiff in an action for death,
brought under the ]\ansas factory act. Af-
See same case below, 05 Kan. 00. 147 Pac.
1118.
Tlie facts are stated in the opinion.
Weefrs. CImrlcs F. Hatclitnge and Mc-
CaUc Sloore for plaintiff In error.
Messrs. Joseph Tagsart, S. D. Bishop,
and J. II. Mitchell for defendant in e
? -Mr. Chief Justice WUlte delivered the
epinion of the court:
Chapter 35G ot the Laws of Kanaas of
1003 (Gen. SUt. li)OB, SS 4876 to 46831 is
entitled and provides in part as followai
An Act Requiring Safeguards for the Pro-
tection ol All Persons Employed or Labor-
ing in Sianutaeturing Eatabliahments, and
Providing Civil Remedies for All Persons
So Engaged, or Their Personal Repre-
■entatives, in Cases Where Any Such
Person May Be Killed or Injured While
Employed or Lalioring in Any Manu-
facturing Establishment Which Is Kot
Properly Provided with the Safeguards
Required by This Act.
Oct. tmu.
See. 4. All . . . machinery of eveij^
description used In a manufacturing eatab-«
lishmeat shall, where'practicable, be proper-*
ly and safely guarded, for the purpose of
preventing or avoiding tha death of or in-
jury to the persons employed or laboring in
any such establishment; and it is hereby
made the duty of all persons owning or
operating manufacturing establishments to
provide and keep the same iurnialied with
safeguards as herein specified.
Sec. 5, If any person employed or labor-
ing in any manufacturing establishment
shall be killed or injured in any case where-
in the absence of any of the safeguards or
precautions required by the act shall direct-
ly contribute to such death or injury, tha
personal representatives of the person ao
killed, or the person himself. In case of in-
jury only, may maintain an action against
the person owning or operating such manu-
facturing establishment for the recovery ol
all proper damages. . . •
Sec. S. In all actions brought under and
by virtue o( the provisions of this act, it
shall ba sufficient for the plaintiff to provo
in the first instance, in order to establish
the liability of the defendant, that the death
or injury complained of resulted in conse-
quence of the failure of the person owning
or operating the manufacturing establi ali-
ment where such death or injury occurred
to provide said establishment with safe-
guards aa required by this act, or that tha
' ilure to provide euch safeguards directly
ntributcd to such death or injury.
This act being In force, Smith, tha
superintendent of the Lawrence Pap«r
Manufacturing C<Hnpany, while engaged in
adjusting some unguarded dryer rolls, was
caught between them, crushed and killed.
Relying upon the law above quoted, his
personal representative sued Bowersook, the
owner of the factory, to recover tha dam-
ages suffered. The petition alleged tho
dangerous character of the dryer rolls and
the tact that although It was practicable to
guard them, the requirements of the act in
that respect had not been complied with,^
and'charged that the failure to do so direct-*
ly caused the death of Smith. It was fur-
ther alleged tiat at the time of the acci-
dent Smith was engaged in adjusting tha
machinery under tlie direction of a superior
ofEcer. the assistant manager ot the factory.
The answer, while denying generally the
allegations of the petition, allied that it
was not practicable to guard the dryer
rolls, and avsrred that Smith was guilty ol
contributory negligence. It wasalso averrod
that, aa superintendent. Smith, 1^ Ilia
contract of employment, was under tha dn^
of safeguarding tha machinery, and wu
It — 'Vtr other caaea sea ■>
le * KET-NUHBBR tn a)) Ker-NunlMred DItaaU * Indeisa
L',ah..,-)-,.*^-.OOglC
uie.
BOWSBSOCK T. BIOTH.
sn
charged gBnerally with authority to diract
tha use al the HKme, snd hencs he had aa-
BQm«d the risk of injury from failure to
guard the dryer rolls, and lience liii injury
Kod death resulted solely from his own
neglect, and UiTOugb no fault on the part
of the owner.
At the trial the plaintiff's evidence tend-
ed to support all of the allegations o( tli«
petition. The defendant offered evidence
tending to show that the guarding of tlie
dryer rolls was not practicable, and that
Smith had been guilty of contributor;
n^ligence. Further CTidence was intro-
duced tending to show that when Smith was
employed aa superintendent, it was stipu-
lated by him as a condition to his accept-
ing the poeition, that he should have full
and complete charge and management of
the factory, including grounds, building,
machinery, and men, and that he should
place guards on the machinery where needed
for the protection of the employees. In ad-
dition the defendant, io support of the alle-
gation that be had fully performed hie duty
under the statute, introduced in evidence the
following notice, which he had posted in the
factory in question and three others which
he carried on:
"CAUTION. Every Employee is Urged to
be Careful in Order to Avoid Aceidentg.
"If there is any machinery, dangerous
place or tocil that you think should be safe-
guarded, repaired, or improved, we will re-
^gard it a favor if you will report same at
■ once t<*tbe office. It is desired that all em-
ployees assist in reducing accidents to low-
est possible point. November, 1011."
The court instructed the jury, over the ob-
jection of the defendant, that, under the
statute, contributory negligence was no de-
fense, and that the fact that Smith was em-
ployed as superintendent of the factory,
with authority to safeguard the machinery,
would not bar a recovery, and charged with
reference to the burden of proof, in accord-
ance with the provision of the statute relat-
ing to that subject. There was a verdict
for the plaintiff, and the judgment entered
thereon was aSirmed by the court below.
It was held, following previous decisions,
that the common-law defenses of cootrtbu-
tory negligence, fellow servant, and as-
sumption of the risk were not applicable to
suits under the statute. The court, further
conBtruing the statute, held that it embraced
all employees of every clau or rank in the
factories to which it applied, and that mere-
ly because the deceased was employed as
superintendent did not exclude him from
the beneGts of the act nor relieve the owner
from responsibility under it. And it was
held that a different result was not required
beeansft Uie deceased had contracted with
the owner to safeguard the machinery un-
der the circumstancea of his employment*
In so ruling the court referred to the evi-
dence, and pointed out that although thera
was testimony as to the authority of the
deceased, under bis contract, to safeguard
the machinery, at the same time the evi-
deuce showed that, in the exercise of such
authority, be was under the control of three
superiors, all of whom had testified that
they did not cnisider It practicable to safe-
guard the dryer rolls. Attention was also
directed to the notice above reproduced
which the defendant posted with reference
to guards on machinery, as showing a con-
trol over that subject by the owner. 00
Kan. 06, 147 Pae. 1118.
The case is here because of the asserted
denial of rights guaranteed by the 14th
Amendment. j
*That government may, in the exercise of*
its police power, provide tor tlie protection
of employees engaged in hazardous oeen-
pations by requiring that dangerous ma-
chinery be safeguarded, and by making tha
failure to do so an act of negligence upon
which a cause of action may be based In
case of injury resulting therefrom, is un-
doubted. And it is also not disputable that,
consistently with due process, it may be
provided that, in actions brought under such
statute, the doctrines of contributory negli-
gence, asHumption of risk, and fellow serv-
ant shall not bar a recovery, and that the
burden of proof shall be upon the defend-
ant to show a compliance with the act.
Missouri P. B. Co. v. Mackey, 127 U. S. 205,
32 L. ed. 107, B Sup. Ct. Hep. llfll;
Second Employers' Liability Cases (Mondou
V. New York, N. H. ft H. B. Co.) 223 U. S-
1, GB L. ed. 327, 38 L.R.A.(N.S.) 44, 32 Sup.
Ct. Rep. 180, 1 N. C. C. A. 875; Missouri P.
a. Co. V. Castle, 224 U. S. 641, 60 L. ed.
876, 32 Sup. Ct. Bep. G06 ; Chicago, B. L Q.
E. Co. V. United States, 220 U. S. 550, 65
L. ed. 682, 31 Sup. Ct Bep. 612; Mobile, J.
ft K. C, R. Co. V. Tumipeeed, 210 U. S, 35,
66 L. ed. 7S, 32 L.R.A.(N.S.) 226, 31 Sup.
Ct. Bep. 13S, Ann. Cas. 1012A, 463, Z K. C.
C. A. 243; Easterling Lumber Co. v. Tierce,
235 U. 8. 380, 6B L. ed. 270, 35 Sup. Ct.
Bep. 133.
Wliile not directly disputing these propo-
sitions, and conceding that the Kansas stat-
ute contains them, and that it is not invalid
for that reason, nevertheless it Is insisted
that the construction placed upon the stat-
ute by the court below causes it to be re-
pugnant to the due process clause of the
14th Amendment. This contention is based
alone upon the ruling made by the court be-
low that, under the statute, the deceased
had a right to recover although he had con-
tracted with the owner to provide Ute safe-
,A_.OOglC
S74
37 SUPRSaiE OOUHT RKPORTER.
Oct. Tnu,
purds tha (liilun to fnrnlBli which caused
hia death, — & reault which, it ii urged,
makes the owner liable and allow* a re-
ODvery by the employee becausa of hii
neglect of duty. We think the contention
Is without merit. It is clear that the etat-
ute, as interpreted by the court below, — a
construction which is not challenged, — Im-
posed a duty as to safegnards upon the own-
er wliich was absolute, and as to which he
could not relieve himself by eontract. This
g being true, the contention has nothing to
■ rest upon, since'fn the nature of thiags, the
want of power to aToid the duty and lia-
bility which the statute imposed embraced
all forms of contract, whether of employ-
ment or otherwise, by which tiie positive
eommands of the statute would be frustrated
or rendered insf&cacious. Second Employ-
ers' Liability Cases (Mondou v. New York,
N. H. & H. R. Co.) 223 U. 8. 1, 62, 50 L. od,
327, 347, 38 L.B_&.(N.8.) 44, 32 Sup. Ct.
Rep. ltI9, 1 N. C. C. A. 8TG.
Again, it is contended that the statute
denies to the plaintiff tn error the equal pro-
tection of the laws, since it discriminates
against factories owned and operated by In-
dividuals in faTOT of those carried on by
corporations. This Is the case, it is eaid, be-
cause a corporation, in the nature of tbings,
can only ciHuply witb the requirements
of the statute by contracting with
agente or employees to safeguard the
machinery, to whom, in ease of injury,
the corporation would not be liable, while
an indiriduai owner, under the ruling of the
court, must perform that duty himself.
Tlie reasoning is obscnre, but we tbinlc it
suffices to say that It rests upon an entire
misconception, since the statute imposes the
positive duty to have the machinery duly
safeguarded, whether the owner be an indi-
vidual or a corporation, and the want of
power by contract to escape the liability
which the statut« Imposes also equally ap-
plies to corporations as well as individuals.
It follows, therefore, that the statute affords
no semblance of ground upon which to rest
the argument of inequality which is urged.
AfBrmed.
(MJ D. a K)
P. J. McCLUSEET,! as Administrator of
the Estate of Gunder Nordgard, De-
cessed, Plff. In Err.,
GoiOfEBCE 4=>2T(2) — BifFi-OTXBs' LiABn.'
ITT— WHEfl ElEPLOTXR IB ElTOAOED If
"IftTZBeT&TE Couubbce" — Loaouia
Railboad.
1. A losing railroad over which its
owner carries its own logs In its own ears
from Its own timber land within the stat«
to a tidewater point also within the states
where such logs are dumped into the water
and sold, some of them going to points out-
side the state, is not engaged in interstate
commerce within the meaning of the Em-
ployers' LUbility Act of April 22, 1B08 (3S
Stat, at L. ee, chap. 14D, L'omp. Stat. 1013,
I B6Q7], and hence an injured employee on
such railroad cannot maintain an action
under that act.
[Ed. Nots.— P'or Dtfaar dsflaltlou, >h Wards
— 1 Fhrsseg, First and Bscond Series, Interstate
8TIPCI.ATIDITH «=9lS(2) — ALLOWINO WUT
OP EltaDB TO DECEDENr— UAEIIfO Ad>
ItinlBTSATOB PARTT.
2. Any irregularity in allowing a writ
of error after the death of the plaintiff in
error, or of malting the administrator ft
party, was waived by a stipulation of the
parties In the court below, agreeing to the
substitution of the administrator as plain-
tiff In error.
^^^^^'.■~F?' "^^^^ ^■■*^ *■* atlpuIsUons,
Cttlt. DIK. I tt.l
INo. 160.]
IN BBBOR to the United StaUs Circuit
Court of Appeals for tha Ninth Circuit to
review a judgment which affirmed a judg-
ment of tba District Court for the Western
District of Washington, dismissing & suit
brought under the Federal Employers' Lia-
bility Act. Affirmed.
Bee same case below, 134 C. 0. A. 41S,
218 Fed. 737.
The facts are stated In the opinion.
Messrs. John T. Oaser, George F. Han-
nan, and Charles R, Pierce for plaintiff in
Messrs. E, O. Hughes, Maurice Mo-
Miclten, Otto B. Rupp, and H. J. Ramsey
for defendants in error.
* Mr. Chief Justice Wblto delivered the*
opinion of the court:
This suit was brought under the Employ-
ers' Liability Act to recover damages re-
sulting from injuries suffered by Nordgard
while in the onploy of the defendant rail-
way company. The trial court directed a
verdict for the defendants on the ground
that there was no evidence tending to show
that the defendants and Nordgard were en-
gaged at the time of the accident in inter-
state ur foreign commerce, and the case ia
here on writ of error to secure a reversal
of the action of the court below, affirming
the judgment entered by the trial court,
dismisBing the suit 134 C. C. A. 415, 21S
Fed. 737.
IS topic * KET-NUUBER In all K*r-Numbersd Olsesta A Ind<i«s>Q I C
leiG.
McCLU^KEY y
AYSTILLE ft N. E. 00.
«IS
«c Iheae are the facta: The detend&iit Stlm-
< •on MtlCCompany was engaged in the log-
ging and lumber bualuesB and carried ita
logs OD its own logging railroad, the Mbfts-
ville & Northern Railway, from timber land
owned by it in Waahington to a point near
llaryaville in that state, where they were
dumped into the watera of Puget Sound.
Fart of the logs were thereafter aold to
mills located on the sound and the balance
were rafted and taken by tugs to the Stim-
BOQ Companji's milU at Ballard, Waahing-
ton, where they were manufactured Into
timber, wliich ivaa thereafter told, about 20
per (%nt in local markets and the remainder
in other states and countries. The logs
which were sold after they had been carried
to tidewater by the railroad were towed
away by tlie purohasera to their mills or
places tor storage, and part of them were
•uboequently resold for piling or poles to
purchasers both witliiit and wthout the
■t&te. Nordgard was a brakeman on the
logging railroad, and suffered the injuries
for which he sued wbile engaged in unload-
ing logs from the cars at tidevrater.
The conclusion of tbe court below that,
under these facts, the defendants were not
engaged in interstate or foreign commerce
when the injuries were suffered, was based
upon the decisions in Cos t. Errol, 116 U.
S. 617, 26 L. ed. 715, 6 Bup. Ct. Rep. 47G,
•Old The Daniel Ball, 10 WaU. 667, ID L. ed.
S0S, from which the following quotatlooa
were made;
"When the products of the farm or the
forest are collected and brought in from the
•urrounding country to a town or station
serving as an entrepot tor that particular
region, whether on a river or a line of rail-
road, such products are not yet exports, nor
are they in process of exportation, nor is
■xportation begun until they are committed
to the common carrier for transportation
out of the state to the atate of their destina-
tion, or have started on their ultimate pas-
sage to that sUte." 118 U. 8. 62S.
"But this movement [that ia, Interstate
g commerce movement] does not begin until
* the articles have been 'shipped or started for
transportation from the one state to the
other. The carrying of them in carts or
other vehicles, or even floating them, to the
depot where the journey is to oommence, ia
no part of that Journey. . , . Until ao-
taally launched on its way to another sta.t«,
or committed to a common carrier tor
transportation to such state, ita deatinatlon
is not fixed and certain. It may be sold or
otherwise diaposed of within the state, and
never put In course of transportaUon out of
the state." 10 Wall. 666
After pointing out that these mllngi had
not been modified, but, on the contrary, had
been reaffirmed by the subsequent cases rft-
lied upon by the plaintiff In error (Texas
ft N. 0. R. Co. v. Sabine Tram Co. 227 U.
a. Ill, 67 L. ed. 442, S3 Sup. a. Rep. 229;
Bailroad Commission t, Texas ft P. R. Co.
220 U. S. 33fl, 67 L. ed. 1216, 33 Gup. Ct
Rep. S37; Southern P. Terminal Co. t. In-
terstate Commerce Commission, 219 U. S.
498, 56 L. ed. 310. 31 Sup. Ct. Rep. 270 [
Railroad Commission *. Worthington, 226
U. & 101, 56 L. ed. 1001, 32 Sup. Ct R^.
663), the court saidr
"In the case at bar there was no initial
shipment of the goods. The transportation
of the poles from the forest In which they
were eut to tidewater, where they were sold,
was not a shipment. There was no contract
of carriage; Uiere was no bill of lading;
there was no conaignor or consignee. The
goods were not committed to a carrier. The
defendant Mill Company simply carried ot«'
its own road, on its own ears, its own goods
to a market where it sold and delivered
them. It had no concern with the subse-
quent disposition of them. It was under no
obligation to deliver them to another car-
rier, and no other carrier waa under obliga-
tion to receive them or CArry them further.
The selling of the poles after the first sale
by the Mill Company, or whether they were
going outside of the state, depended upon
chance or the exigencies of trade. The move-
ment of the poise did not become interstate
cominerGe until, by the act of the purchasers^
thereof, ths*poIes were started on their way*
to their deatinatlon in another state or coun-
try. Hie beginning of the transit which con-
stitutes Interstate commerce 'is defined In
Coe T. Errol to be the point of time that
an article is committed to a carrier for
transportation to the state of its destina-
tion, or started on Its ultimate passage.' "
General Oil Co. v. Grain, 20B U. S. 211, S20,
62 U ed. 764, 764, 28 Sup. Ct. Rep. 470."
The conclusion of the court below that
the defendants wert not engaged in inter-
state or foreign commerce when the accident
occurred is, we think, dearly demonstrated
by the reasoning by which it sustained ita
conclusion and the authorities upon which
it relied as above stated, and Its judgment
should be affirmed.
Before concluding we observe that, in view
of the stipulation of the parties in the court
below, agreeing to the substitution as plain-
tiff in error of the administrator of Nord-
gard, who died while ths cause waa there
pending, the motion to dismiss on the
ground that the writ of error was wrong-
fully allowed, and that ths administrator
is not a proper party. Is based upon a msi«
irregularity which waa waived.
Affirmed,
,A_^oogle
876 37 SUFiCJ^lUli: COUUT aEFOUXER.
(241 C. B. «1
AUGUST BAY, Plff. to Err,
OOT. XUH,
MBKRUX ft RING LOGGING COMPANY.
COMtCEBCB «=327(2)— EMFI-OTXBS' LlASOr
111 — Wrkn Bhploxbb IB Bnoaoed in
"Intebstati Gojqikbck" — LoQaise
Baiiaoad.
A logging railroad over which fti
owner carries its own lag* in its own can
from its own timber land within the atata
to a tidetcfttei point, also within the itate,
where euch loga are dumped into tlie water
and Bold, some of them going to points out-
side the state, is not engaged in interstate
commerce within the meaning of the Em-
ployers' Liability Act of April 22, 1008 (35
Stat, at L. 85. chap. 140, Comp. Stat. 1B13,
3 8857), and hence an injured emplojeeon
such railroad cannot maintain an action
under that act.
IBd. Nats.— For oKbmr daBalttoDt. ■«• Word!
Mid PlirsMi, First «Jid Second Sarlas. "- —
CoDunsrcs.]
[No. 165.]
IN ERROR to tht United States Circuit
Court of Appeals for the Ninth Circuit
to review a judgment which atSrmed a
judgment of the District Court for the
Western District of Watihlngton, dismissing
a suit brought under the Federal Employ-
ers' Liability 'Act. Affirmed.
See same case below, 130 C. C. A. 277,
220 Fed. 295.
The facts are stated in the opinion.
Messrs. John T. Casej, George F. Han-
nan, and Charles R. Fierce for plaintilT in
Messrs. E. C. HueI'ci, Maurice Mc-
Micken, Otto B. Rupp, and H. J. Ramsey
for defendant in error.
' 'Mr, Chief Justice White delivered the
opinion of the court;
This case is controlled by the decision In
McCluskey t. MarysTille & N, R. Co. just
dedded (243 tJ. S. 88, 61 L. ed. 578, S7 Sup.
Ct Rep. 374). Aa in that case, the suit was
brought under the Federal Employers' Lia-
bility Act to recover damages for Injuries
suffered while Bay, the plaintiff' In error,
was employed hy the defendant on its log-
ging railroad, ^e accident which gare rise
to his in juries occurred white he was en-
gaged in loading on a flat car on defend-
ant's timber land, lags which had been cut
for carriage on the railroad to tidewater at
Puget Sound. The eaae was tried by the
same court which heard th« McCluskqr
Case, there was a directed verdict for th*
defendant on tha ground that the company
was not engaged in interatet« or foreign
commerce when the accident occurred, and
the judgment thereupon entered dismissing
the suit waa affirmed by the court below on
the authority of the McCluskey Case, 136
C. C- A. 277, 220 Fed. 295.
The facts were thus stated by the court
• "The Logging Company owned extensivs*
tracks of timber in Snohomish county,
Washington, and was Engaged solely in cut-
ting logs on Its own lands and hauling them
over its own road to the waters of Puget
Sound, where it dumped them from the cars
into a boom. At that point it sold the logn
to purchasers who paid for them there, and
there took possession of them and towed
them away by tugs. Tlie most of the loga
were sold to near-by mills on the Sound,
which were engaged in the manufacture of
lumber, and tjiis lumber, when manufac-
tured, was for the most part ultimately dis-
posed and shipped to points outside of tha
stata of Washington. In addition to these
transactions in logs, the Logging Company
had at times taken out some poles, whidt
also it sold and delivered at its boom to the
National Pole Company, a purchaser which
did business at Everett, and which bought
and paid for the poles after they were de-
livered in the water, and thereafter sold
them for shipment to California. The road
is a standard gauge logging railroad, and
is operated as a part of the logging busi-
ness of the defendant in error, and is con-
nected by switches with the Great Northern
and the Interurban roads; but those connec*
tiona are used only for the purpose of bring>
ing supplies to the company's logging campa.
No logs or timber of any kind were at any
time transferred to these other roads. One
shipment of steel rails had gone over the log-
ging road for the Interurban at the time
when the latter was constructing its road.
For that service the actual expense of
operating the locomotive was the only
charge made, and the Interurban assumed
all liability on account of acddenU occur-
ring In the transportation."
As these facts are not substanUally dlf*
ferent from those presented in the M»
Cluskey Case, it follows that the reasoning
and authorities by which the court below
sustained ite raling in that case also dem-fi
onstrate the correctness of Ita'oonclusion*
that In this case, at the time the Injuria
were suffered, the defendant was not ei^
gaged In Interstate or foreign commerca,
Afflnned.
la ft KES-NnUBER in all Ksr-Numbered DtceUs A Index
D,at,z.d>,.'^-.00'^IC
1910.
<M D. S. 4t)
BERNARD B. SELLING, Otto Eirehner,
UeniT M. Campbell, Clarence A. Light-
ner. «nd Sidney T. Miller, t. Special Com-
mittea Appointed by the ABSoeiation of the
Bar of the Citj of Detroit, FetitionerB,
GEORGE W. RADFORD.
Attobney and Client <S=338 — Dibbab-
UENT— I<aSS UF CnABACTBB.
1. The bag by a member of the Bar of
-the Supieme Court of the United States
«f hii fair private and profeMional cliar-
Acter hj wrongful pergonal and professional
«on<luct, no matter where committed, fur-
aiahea adequate reasoD for taking away hia
right to continue to be a member of tuch
Bar in good Itanding.
[Kd. Not*.— For otber casss. »e Attornsy and
<:ilaal. Cant. Dig. It 51, S1-]
ArrosnET and Client ^=i80 — Disbab-
MBBT — LoB8 or Chabacteb — Stwect
or OlSBABUENT BT STATE COUBT.
2. The want of fair private and pro-
ieseional character in a member of the Bar
«f the Supreme Court of the United States,
inherently arising as tlie result of the act
-of the highest court of a state, disbarring
him from practising in the courts of that
state, for personal and professional miscon-
duct amounting to moral wrong, should be
recognized by the Federal Supreme Court
«n motion to disbar unless, from en intrin-
sic consideration of the record of the state
«ourt, it appears (1) that the state pro-
«edure, from want of notice or opportunity
to be heard, was wanting in due process,
«T (2) that there was such an inllrmity of
proof as to give rise to a clear conviction
that '-he conclusion aa to the want of fair
private and professional character should
not be accepted as final, or (3) that some
otlier grave reason exists, Impelling the con-
viction that to allow the natural conse-
Juencea of the judgment to have their ef-
ect would conflict with the duty not to
disbar unless constrained to do ao by prin-
-clples of right and justice.
[Ed. Nota.~For otber cuu. ••• AttorDsy sad
Client, Cent. Dig. { 83.1
Attobmbt and Cr.iEST «=54 — Disbab-
HENT— PboCe d u b R — Uea RIN O .
3. An opportunity should be afforded
to a member of the Bar of the Supreme
Court of the United States, where hia dia-
barment is sought on the ground of a previ-
ous disbarment by a state court, to llle the
record of the state court, and by printed
brief, considering the record intrinsically,
to point out any ground within the limita-
tions prescribed by the Federal Supreme
Court which should prevent that court
from giving effect to the flnding of the state
court establishing the want of fair private
and professional character.
[Ed. Note.— For other casn, see Attomer and
Cllsut. Cent. Dig. | 12.1
tNo. 21, Original.]
BELLING T. RADFORD.
vn
0".
N PETITION to disbar a member of the
Bar of the Supreme Court of the Unit-
ed State* upon the ground of bis previoua
disbarment by a state court for personal
and professional misconduct. Leave grant-
ed to respondent to Ble the record of tha
state court, accompanied hj printed brief.
The facts are stated in the opinion.
Solicitor General Davis for petitioner,
Klessrs. Tbomas A. B. Weadocfc and
Harrison Oeer for respondent.
* Mr. Chief Justice Wlilt« delivered the*
opinion of the court:
George W. Radford waa admitted to
practice Ln the supreme court of the stats
of Michigan on the ISth day of Jons, 1870.
About ten yeara thereafter, on March 18,
1880, upon the representation that he had
been for the three years preceding, a mem-
ber of the Bar of the highest court of tha
stat« of Michigan, and upon the further
assurance, both conformably with rule 2 of
this court, that his private and profession-
al chnracter appeared to be fair, he wb4
permitted to become a memher of the Bar
of this court.
Represented by tha Solicitor General of
the United States, the petitioners, aa a
committee of the Association of the Bar of
the City of Detroit, specially appointed for
that purpose, seek to procure an order strik-
ing Itadlord from the roll of the members of
the Bar of thia court on the ground of hia
personal unworthinesa to continue as a mem-
ber of such Bar. And, in coming to
consider their request, we unselfishly under-
stand their sense of pain at being called
on to discharge the duty which they per-
form. The original petition filed for that
purpose alleged that in a suit brought In
a designated court of original jurisdiction
in Michigan for the purpose of disbar-
ring Radford for professional misconduct
amounting to moriit wrong, he had, after
notice and full hearing, been found to havs
committed the wrongful acta complained of,
and had been disbarred, and that such judg-^
ment hod been approved b,*the supreme court*
of Michigan in a proceeding by certiorari
taken to consider the same. Annexed to
the petition was a copy of tha opinion and
order of disbarment entered by the court
of original jurisdiction, aa well as a copy
of the opinion and order of the supreme
court of the state In the certiorari pro-
ceeding, the same being reported in 1G8
Mich. 474, 134 N. W. 472.
It was alleged in the petition that, not-
withstanding the fact that Radford had,
by the final action of the supreme court of
tha stats of Michigan, been stricken from
the rolls of the courts in that state for the
reasons previously stated, he hod continued
N ume topic * KBT-
In KlI KsT-Numbarad Dlg«U * lod
.gic
S78
37 SUPREME OOUBT BEFOBTER.
Oor. Tmi,
in the city of Detroit to hold himMlf out
aa a practisiiig lawyer entitled to reapAct
and confidence aa ancb becBUae of the fact
that he continued to be a member of the
Bar of tlila court, unalTected by the order
of disbarment by the ccurta of the atate.
After reciting the unBeemly eondltliHi pro-
duced by these circumatancea and the dia-
reapect for the state courts which was
naturally implied, tha prayer wai for a
rule to ahow cause and for the awarding,
on the return to auch rule, of the order
of disbarment which wsa Bought.
An answer was made to the rule to show
can He and a brief filed in support of the
aame, as to which we think it sufBcea to
say for our present purposes that both th«
answer and the brief take a much wider
range than is permissible, and rely upon
much that is here Irrelerant, not to say
in some respects improper to be considered,
as the prayer for the en force ntent of the
judgment of the court of last resort of
Michigan is not to be converted into a trial
of the courts of that state or of the mem-
bers of the Detroit Bar Association on be-
half of which the petition was filed.
Beyond nil question, when admisalon to
the Bar of this court is secured, that right
may not be taken away except by the ac-
tion of this court. While this is true, it
ft is also true that the character and scope
• of the inveetigatitHi to*be made on a prayer
for disbarment, before sanction is given to
it, must depend upon the character of the
acta of misconduct and wrong relied upon,
of the place of their commission, and the
nature of the proof relied upon to estab-
lish their existence.
While, moreover, it is true that the two
conditions — membership of the Bar of the
court of last resort of a state and fair pri-
vate and professional character — are pre-
requisites to admiraion here, there is a
wide difference In the nature and effect of
the two requirements. This follows, be-
cause the first, although a prerequisite to
admission here, is ephemeral in its opera-
tion, since its effect is exhausted upon ad-
mission to this Bsr which it has served
to secure, — a result which becomes mani-
fest by the consideration that although the
memberahip of the Bar of the court of last
resort of a state, after admission here, might
be lost by change of domicil from one state
to another, If so provided by the state law
or rule ol court, or by any other causa not in-
volving unworthineaa, euch loss would be
wholly negligible upon the right to continue
to be a member of the Bar of this court.
The second exaction, on the contrary, is not
ephemeral, and Its influence Is not exhausted
when the admission based upon it is secured,
dnce the continued possession of a fair pri-
vate and professional character la essential
to the right to be a member of this Bar. It
follows, therefore, that the personality of
the member and these inhertmt and prere-
quisite qualifications for membership of this
Bar are indivisible; that is, inseparable.
Tlkey muat, it they exist, follow the person*
ality of one who is a member of the Bar,
and hence their loss by wrongful personal
and professional conduct, wherever oom-
mitted, operates everywhere, and must, in
the nature of things, furnish adequate rea-
son in every jurisdiction for taking away
the right to continue to bt a member of tha
Bar in good atanding.
In the light of theee conclusions, the quea-S
tion is, What,* consistently with the duty'
which rests upon ue, is exacted in dealing
with the situation now presented T
In eoming to solve that question three
thinga are patent; (a) that we have no au-
thority to re-examine or reverse, as a re-
viewing court, tlie action of the supreme
court of Michigan in disbarring a memlier
of the Bar of the courts of that state for
personal and professional misconduct; (h)
that the order of disbarment is not binding
upon us as the thing adjudged in a tMlmical
sense; and (c) that albeit this is the case,
yet, as we ha.ve previously sboivn, the neces-
sary effect of the action of the supreme
court of Michigan, as long as it stands un-
reversed, unless for some reason it is found
that it ought not to be accepted or given ef-
fect to, has been to absolutely destroy the
condition of fair private and professional
character, without the possession of which
there could he no possible right to continue
to be a member of this Bar.
Afeeting this situation, we are of opinion
that, on the case presented, our duty is not
to review the action of the state court of
last resort, — a power wbich we do not pos-
sess,— but wholly to abdicate our own func-
tions by treating its judgment as the thing
adjudged, excluding all inquiry on our part,
and yet not, in considering the right of on*
to continue to be a member of the Bar of
this court, to shut our eyes to the status,
as it were, of unworthiness to be such a
member which the judgment must be treated
as having established, unless for some rea-
son we deem that consequence should not
now be accepted. In other worda, in pasa-
ing upon the question of the right to con-
tinue to be a member of the Bar of this
conrt, we think we should recognize the at>-
sence of fair private and professional char-
acter inherently arising as the result of tha
action of the supreme court of Michigan so
far as we are at liberty to do so consistently
with the duty resting upon us to determin*
for ourselves the right to continue to be ft
member of this Bar. That It to aay, we are
,A_^OOglC
IBW. WYOMINO t
• of oplnlon'tlt&t wa ilunitd r«eo^isa the con-
dition created b; tlie judgment of tbe atate
eourt unleM, from as intriniie considera-
tion of tlie state record, one or all of the
foUoiring conditions Hhonld appear; 1. That
the state procedure, from want ol notice or
opportunitj to be heard, was wanting in
due process i 2, that there waa Buch an in-
firmity of proof SB to facta found to hare
establiBbed the want of fair private and pro-
fessional character as to give rise to a
clear convictiou on oor part that we could
not, consistently with our duty, accept aa
final the conclusion on that subject; or 3,
that some other grave reaaon existed wtaicb
should convince us that to allow the natural
conse^juences of the judgment to have their
cfiect would conflict with tbe duty which
rests upon uB not to disbar except upon the
MUTlctiou that, under the principles of
right and justice, we were constrained so to
do.
In concluding that our duty is to gita
eSect to the finding of the state court «s-
tabtiahing the want of fair private and pro-
fessional character, subject to the limita-
tions stated, we confine ourselves to tbe case
before us, and Uierefore do not in tbe slight-
est degree call in questioi^ tbe ruling in
£x parte Tillinghast, 4 Pet. 108, 7 L. ed.
7 OS, that a mere punishment loi contempt
by an inferior Federal court was not a suf-
ficient ground for preventing admission to
the Bar of tliis court, there being nothing
to indicate that the action of the inferior
court was based upon the doing of acts
which inherently and necesssrily deprived
the applicant of the fair private and profes-
•ionai character essential to admission.
llinB defining what is open to our oon-
aideration, we think we ought not to fore-
close tbe subject on the answer made to the
rule to show cause In the proceeding which
la now before us, but that an opportunity
ahould be afforded the respondent, confin-
ing himself to tbe propositions atated, if
he is ao advised, to file the record or records
c*of the state court within thirty days from
■ this date with* per mission by printed brief,
considering the record intrinsically, to point
out any ground within the limitations atated
which should prevent us from giving effect
to the conclusions established by tbe action
of the supreme court of Michigan which is
now before ns, as ws bava seen, aa part of
tbe petition we are how mnsidortn^
It i> ■» ordered.
COLORADO. «T9
oao. 8.«3»
STATE OP WYOMrtTG, Complainant,
STATB OF COLOBADO, Greeley-Poudre Ir-
rigation District, and Laramie-Poudre
Keservoira ft Irrigation Company.
Messrs. John V. Imccy and X. B. Gor-
thell tor complainant
Mr. Fred Farrar for the state of Colo-
Mr. Delph EL Carpenter for the Greeley-
Foudra Irrigation District.
Mr. JuUua C. Ountlier for the Laramls-
Foudre Reservoirs ft Irrigation Company.^
It is ordered that this case h« restored to *
tbe dodcet for reargument.
1. Counsel are requested to specially di-
rect Uielr attention to tbe rule which they
deem should properly be applied to a Bolu<
tion of tbe controversy for decision: That
is, whether tbe rights asserted are to ha
tested and determined solely by the applica-
tion of the general principles of prior
appropriation, without regard to state bound-
aries, or whether, on the contrary, the gen-
eral principles of prior appropriation ara
subject to be restricted or their operation
limited iu this ease by state lines, and if
BO, by what principles, under that assump-
tion, tiie case is to be controlled.
2. They are moreover requested not mere-
ly by general iiatiouB to state the facts re-
lied upon, but Bpecifically, by careful refer-
ence to the pages of the record, and to
group them under the various propositions
relied upon, including tbe extent of the use
of water In both states when the work com-
plained of was begun and when tbia anit
was oommenced, and the extoit of appro-
priation made or autborieed in either or
both statea since Its commencement.
3. In view of the legislation of CongroBa
concerning reclamation and the extensive
public worlfs which have been constructed
under that legislation and tbe possible eon-
aequencea which may result from tbe rule
to be applied in tbe solution of this con-
troversy, the cleric is instructed to notify
the Attorney General of tbe United State*
of this order lor leargument.
DintizPdbyGoO^le
S80 37 SUPBEME COURT REPORTER.
(Ut U. S-tU)
UNITED STATES, flff. In Err,
W. R. CRESS. (No. 84.)
UNITED STATES, Plff. in Err,
ACHILLES KELLY, Green B. Kelly, Jr.,
Lilli&D Kelly Crawford, at &1. (No. 713.)
Navioabi^ Waters 4=936(4)— Rishtb or
RiPABIAN OWNBBB— SBBVITUDR TO PUB-
LIC Right of NAnoATioN — Natural
COKDITION.
1. Tlie Bervituiie ot privately owoid
lands farming tlie banks and bed of a. atream
to the intereats of navigation ie a natural
servitude confined to such streams as, in
their ordinary and natural condition, are
navigable in fact, and confined to the natur-
al condition of such streams.
[Gd. Nota.— Por otliBr cuet, >m Navlcabl*
WatOTi, Cent. DIs. |1 IW-m,]
BuiNENT DouAiN iSsaQS— Tasiho m Aid
OF Navioation— Necessitt for CoHPXif-
SATIOH.
Z. So inu^^h of the properties of the
owners in Kentui:ky of the beds and shores
ol certain creeks tributary to the Cumber-
land and Kentucky rivers as was thereto-
fore unaffected by the flow of the rivers or
their tributaries could not be overflowed
without compensation by the backwater re-
sulting from the construction and mainte-
nance by the Federal government in aid of
navigation of certain locks and dams upon
those rivers in that state, whereby the level
of those rivers along certain stretches was
raised, rendering them, to tlie extent of the
raising, artilJcial canals instead of natural
waterways,
[Ed. Not*. — For olhar cbh*. sea Bmlnant Do-
main, CaDt. DIK. II lU-KC]
Bmineivt Dohair ^:9S&— What Corbtt-
TDTEB A Taxing — Jupboviho Navioa-
TI O N— O VEKFLO W ,
3. Land situate In KentucVy upon «
ereek tributary to the Cumberland river
cannot be subjected, without compensation to
the owner, to frequent overflows which de-
preciate it to the extent of one half its
value, occasioned by tbe construction and
maintenance by tbe Federal government in
aid of navigation of ». lock and dam upon
that river in Kentucky, whereby the level
of such river along certain stretches is
raised so as to render it, to the extent of
the raising, an artiflcial canal instead of
a natural waterway.
tEd, note.— For citbpr ciaas. see Eminent Do-
msJD, Cent. DlK. 19 2^2- 25£.]
Em SENT Domain «=>98— Taking— Habe-
MEHT— IMPBOVINO NaVIOATION.
4. A private pass way and ford ap-
purtenant to land situated In Kentucky up-
on a creek tributary to tbe Cumberland
river cannot be destroyed, to the damage of
the land, without compensation to the
owner, by the backwater resulting from
the construction and maintenance by the
Federal government, in aid of navigation,
of a lock and dam upon that river in Ken-
tucky, whereby the level of such river along
certain stretches is raised so aa to render
it, to the extent ot the raising, an artificial
canal instead of a natuuJ waterway.
fBd. Nots^-For otbar crms. im Eiiilaa&t I>0-
m«la. Cent. Dig. 11 sa-2Si.]
EuiNENT DoiuiN «=a98— Taking — Di-
straction OF Power OF Milldam— Rais-
TiTO Level— lUFBo VINO Navigation.
S. The power of a milldam, essential
to the value of a mill situated in Kentucky
upon a creek tributary to the Kentucl^
river, cannot be destroyed witliout compen-
sation tn the owner bv tlie raising of the
creek level, due to the construction and
maintenance bf the Federal government in
aid of navigation of a lock and dam upon
that river in Kentucky, wUcreby the level
of BUch river, along certain stretches, is
raised no as to render it, to the extent ol
the raising, an artificial canal instead of ft
natural waterway.
[Ed. Note.— For other casaa, m* Bmlnant Do-
mala. Cant. DlK. |i KI-Bt.]
UiHTED States «=>H7— Cobtb.
S. Costs may be allowed against the
United States In a snlt brought under the
Judicial Code, t 24 (2(», (Act Mard) 3, 1911,
c. 231, 86 Stat. 1098 [Comp. St. 1813.
i 991]}, notwithstanding the repeal by | 2S7
of that Code, of all ot the Tucker Act of
March 3, 1S87, 24 Stat, at L. SOS. chap.
3S9, Comp. Stat. 1913, | 991 (20), with
the exception of certain sectliKia relatinK
to matter* of procedure, since not only Is
the provision of f 2 of the Tucker Act, con-
ferring upon the district courts concurrent
jurisdiction with the court of claims over
certain claims against tbe United Statea,
carried Into | 24 (20) of the Code, but
the provision of | 16 of the Tucker Act,
far the allowance of costs against the gov-
ernment. Is carried in as f 1R2 of the Code,
and while S 24 (20) Is a part of chapter 2 of
the Code, entiUed, "District courta— Jaria-
diction," and | 1S2 is a part of chapter 7,
entitled, "The Court of Clsims" it is de-
clared by H 2d4 and 29S of the Code that
the laws revised therein are to be construed
as continuations of existing laws, and that
no Inference of legislative construction ia
to be drawn from the arrangement and dasa-
iflcation.
[Ed. Nole.— For other eases, sse Ualtad States.
C«Dt. Dig. I 1(8.]
[Kos. B4 and 71S.]
TWO WRITS of Error to the District
Court of the United States for the
Eastern District of Kentucky to review
judgments awarding compensation against
the United States for the taking of landa
and water rights by menns of backwater
resulting from tlie construction and mainte-
nance by the government of certain lo^ki
and dams upon the Cumberland and Ken-
tucky rivers, in aid of navigation. AU
The facta are stated in the opinion.
>For adier CI
la tonic * KEV-NDUBBR In all Kar-Numb«rad Digests * Indaxea (^
+c
ms.
UKTTED STATES t. CRBSB.
Ajuistftnt Attorney General TJiompson
and Meflar». P. H. Cox and Beth Shepord,
Jr., for plaintiff In error ta No. B4.
ABaiBt&nt Attorney General Thompson
for plaintiff in error in No. 71B,
No brief wu filed tor defendant in e
in No, B4.
Mr. 3. F. Winn for defeud&nt in error
k. in No. T18.
• • Mr. JnaticB Pltner delivered the opinion
ri the coujt:
These cases were argued together, iBTolved
similar questiona, and may be disposed of
In a aingts Dpinion. They were actions
■ brought in the district court by the respec-
JJtive defendants in error agtiinat the United
• Sta.tes under'the 20th paragraph of 9 ii.
Judicial Code (Act of March 3, 1911, chap.
231, 3fl Stat, at L. 1087, 1003, Comp. Sfat.
1013, gg S68, gsi(20)), to recover com-
pensation for the tailing of lands and water
rights by means of backwater resulting from
the oonstruction and maintenance by the
government of certain locks and doua upon
the Cumberland and Kentucky rivera, re-
spectively, in the state of Kentucky, in aid
of the navigation upon thoae rivers.
In No. 84 the findings of the district eonrt
are. In substance, that at the time of the
erection of lock and dam No. 21 in the
Cumberland river, the plaintiff woe thu
owner of 180 acres of land on Whlteoak
creek, a tributary of the Cumberland, not
far distent from the river; that by reason
of the erection ot the lock and dam 6A
acres of thia land are aubject to frequent
overflows of water from the river, so as to
depreciate it one half of its value, and a
ford across Whlteoak creek end a part ot
a pass way are destroyed; that the 0^
acres were worth $090, and tlie damage
thereto was $406; that the damage to the
land by the destruction o( the ford was
CCOOi and that plaintiff was entitled to re-
cover the aum of $606. It may be aupposed
that Whit«oak creek was not a navigable
•tream, but there ia no finding on the sub-
ject.
In No. 71S the findings are to the effect
tliat at the time of the erection by the gov-
ernment of lock and dam No. 12 In tiie Ken-
tacky river the plaintiffs, together with
another peraon who was joined as a defend-
ant, were the owners and in possession ot
a tract of land situate on Miller's creek, a
brandi of the Kentacky, containing 6| acres,
upon which there were a mill and a mill
seat; that by reason of the erection of the
lock and dam the mill no longer can be
driven by water power; that the water above
the lock and dam, when it ia at pool stage,
is abont 1 foot below the oreet of the mill-
dam, and thia prevents tha drop in the cur-
rent that la neeessafy t« mn-t&e mill; that *
no part of the land or mill is overflowed or
covered by pool stage of water, nor is the
mill physically damaged thereby; that Mil-
ler's ereelt Is not a navigable stream; that
the damages snstained by the owners of the
mill, representing depreciation of the value
of the mill property by cutting off the water
power, amount to $1,500.
Judgments were entered in favor of the
respective landowners for the sums men-
tioned in the findings, together with inter-
est and the costs of the suits, and the United
States appealed to this court.
{]) A fundamental contention made in
behalf of the government, and one that Kp-
plies to both cases, is that the control by
Congress, and the Secretary of War acting
for it, over the navigation of the Cumber-
land and Kentucky rivers, must alao include
control of their tributaries, and that, in
order to improve navigation at the places
mentioned in the findings, it waa necessary
to erect dams and back up the water, and
the right to do this must include also tha
right to raise the water in the tributary
etrenms.
In passing upon this contention we niaj
assume, without, however, deciding, that tha
rights of defendants in error are no greater
than if they had been riparian owners upon
the rivers, instead of upon the tributary
The states have authority to establish
for themeelves such rules of property as th^
may deem expedient with respect to the
streams of water within their borders, both
navigable and non-navigab)e, and the owner-
ahip of the landa forming their beds and
banks (Barney v. Keokuk, 04 U. 5. 321,
338, 24 L. ed. S24, 228; Packer v. Bird, 137
U. S. 081, 671, 34 L. ed. 819, 821, 11 Sup.
Ct. Rep. 210; Hardin v. Jordan, 140 U. 8.
371, 382, 35 L. ed. 428, 433, 11 Sup. Ct
Rep. 808, 838; Shively v. Bowlbv, 152 U.
e. 1, 40, G8. 38 L. ed. 331, 348, 352, 14 Sup.
Ct Rep. 548; St Anthony Falls Water
Power Co. v. Water Comra. 188 U. S. 349,
358, 42 L. ed. 497, 501, 18 Sup. Ct Rep.
1S7), subject however, in the case of navi-
gable streams, to the paramount authority of
Congress to control the navigation so tar
aa may be necessary for the regulation of JJ
eommercA among the atates and with foreign •
nations (Shively v. Bowlby, 152 U. S. 1, 40,
38 L. ed. 331. 340, 14 Bup. Ct. Rep. 548)
Gibson v. United States. 108 U. S. 260, 272,
41 L. ed. 096, 1000, 17 Sup. Ct Rep. 678;
Scott V. Lattig, 227 U. B. 229, 243, 67 L.
ed. 400, 408, 44 L.R.A.(N.S.) lOT, 33 Sup.
Ct Rep. 242) ; the exercise of this authority
being subject in its turn, to the inhibition
of the 6th Amendment agalnat the taking of
private property for public use without just
A^^OOglC
ssa
ST SUPRBME COUKT RBPOUrER.
Oor. Tmc,
compenution (Uonongalielk Nrt. Co. *.
nnit«d StAtcB, 148 U. S. 312, 33S, 37 L. ed.
4B3, 471, 13 Sup. Ct Bep. 622; United
SUUb t. Lynah, ISS U. S. 44S, 466, 4T1,
47 L. ed. G3D, S4Q, 540, 23 Sup. Ct. Rep. 340.
The state of Kentucky, like mort of the
■tateB of tbe Union, determines the navi-
gsiiilitj of her Htreama, so far u the public
right is concerned, not by the common-law
test of the ebb and flow of the tide, — mani-
festly inapplicable in a state so wholly re-
mote from the Bea, — but by the test of navi-
gability in feet CThunnan t. Morrison, 14
B. Mon. 307; Morrison t. Tlmrman, 17 B.
Mon. 249, eo Am. Dec. 153; Gioodin v.
Kentucky Lumber Co. 00 Ky. 626, 14 S. W.
775; Murray v. Preston, 106 Ky. 561, 664, 00
Am. St. Kep. 232, GO S. W. 10B5; Banks v.
Frazier, 111 Ky. 909, 912, 64 S. W. 983;
Ireland v. Bowman, 130 Ky. 1G3, 161, 113
S. W. 56, 17 Ann. Cas. 786), while sustain-
ing private ownership of the beds of her
streams, both navigable and non-navigable,
according to the common-law rule (Berry
V. Snyder, S Bush, 266, 273, 277, 96 Am.
Dec. 219; Milter v. Hepburn, 8 Bush, 320,
331; Williamsburg Boom Co. v. Smith, 84
Ky. 372, 374, 1 S. W. 765; Wilson v. Watson,
141 Ky. 324, 327. 36 LJl.A.(N.8.) 227, 132
S. W. 563; Robinson y. Wells, 142 Ky. 800,
G04, 135 S. W. 31T), with incidenUl rights
to flow of the stream in its natural state
(Anderson v. Cincinnati Southern R. Co. 86
Ky. 44, 48. 9 Am. 3L Rep. 263, 6 S. W. 4U).
'The genersl rule that private ownership
of property in the bedi and waters of navi-
gable Btreama is subject to Uie exercise of
the public right of navigation, and the gov-
ernmental control and regulation necessary
to give effect to that right, is so fully es-
tablislied, and is so amply illustrated by
^ recent decisions of this court, that a mere
M reference to the cases will suffice. Bcranton
?v. Whceler,*170 U. 8. 141, 163, 46 L. ed.
126, 137, 21 Sup. Ct. Kep. 48; Philadelphia
Co. v. Stimson, 223 U. S. 605, 634, 56 L. ed.
670, 582, 32 Sup. Ct. Rep. 340; United
States V. Chandler-Dun bar Water Power Co.
22B U. S. 63, 62, 67 L. ed. 10B3, 1075, SS
Sup. Ct. Rep, 667; Lewis Blue Point Oyster
Cultivation Co. T. Rriggs, 229 U. S. 82, S5,
88, G7 L. ed. 1083-1085, 33 Sup. Ct. Rep.
670, Ann. Cas. 1916A, 232; Green leaf -John-
son Lumber Co. v. Garrison, 237 U. S. 251,
268, 50 L. ed. 939, 947, 36 Sup. Ct. Rep. 661 ;
Willink V. United States, 240 U. S. 672, 630,
flO L. Id. 803, 810, 36 Sup. Ct. Rep. 422.
Qut this rule, like every other, has its
limits, and in the present cases, which rs-
quire us to ascertain the dividing line be-
tween public and private right. It is im-
portant to inquire what are "natigahle
•treams" within the meaning of the rule.
In Kentucky, and in other state* that
have rejected the eommon-Iaw Ust of tidal
flow and adopted the test of nBTigabllity !■
fact, while recognizing private ownership
of the beds of navigable streams, numerous
cases have arisen where it has been neces-
sary to draw the line between publio and
private right in waters alleged to be navi-
gable; and by an unbroken current of au-
thorities it has become well established that
the test of navigability in fact Is to bs ap-
plied to the stream in itA natural condi-
tion, not as artiliefally raised by dams or
similar stnictures; that the public right is
to be measured by the capacity of the stream
for valuable public use in its natural condi-
tion ; that riparian owners have a right to
the enjoyment of the natural flow witliout
burden or hindrance imposed by artificial
means, and no public easement beyond the
natural one can arise without grant or
dedication save by condemnation, witb ap-
propriate compensation for the private
right. Cases exemplifying these ptoposi-M
tions are cited in a marginal note. 1 Wc^
have found no case to the'contrary. An*
spparent but not a real exception is the
New York case of Canal Appraisers t. Peo-
ple (1836) 17 Wend. 671, where the decisioD
was rested (pp. 600, 612, 624) upon the
ground that the bed of the Mohawk river
was the property of the state; the author-
ity of the case having been limited accord-
MVadsworth v. Smith, 11 Me. 278, 281,
26 Am. Dec. 525; Brown v. Chadbourne, 31
Me. 9, 21, GO Am. Dec. 041; Treat v. Lord,
42 Me. 652, 561, GG2, 66 Am. Dec 298; Pear-
son V. Rolfe, 76 Me. 380, 385; Moore v. San-
bome, 2 Mich. 619, 623, 524, 69 Am. Deo.
20B; Thunder Bay River Booming Co. r.
Speechly, 31 Mich. 336, 343, 346, IB Am.
Rep. 184; Witheral v. Muskegon Booming
Co. 68 Mich. 48, 68, 69, 13 Am. St. Rep.
326, 36 N. W. 768; East Branch Sturgeon
River Improv. Co. v. White ft F. Lumber
Co. 89 Mich. 207, 212, 213, 37 N. W. 182;
Koopman v. Blodgett, 70 Micb. 610, 016, 14
Am. St Rep. 627, 38 N. W. 049; Goodln
T. Kentucky Lumber Co. 90 Ky. 62Q, 627, 14
8. W. 776; Murray t. Preston, 106 Ky.
561, 506, 90 Am. St. Rep. 232, 60 S. W.
1096; Banks t. Fracier, 111 Ky. 909, 012, 04
S. W. 083; Morgan v. King, 36 N. Y. 464,
459, 01 Am. Dec. 68; Chenango Bridge Co.
686, 27 N. Y. Supp. 630; Weiss v. Smith,
3 Or. 446, 449, 8 Am. Rep. 021; Goodwill
T. Police Jury, 38 La. Ann. 762, 7K6; Smith
7. Fonda, 64 Miss. 661, 664. 1 So. 757;
Esst Hoquiam Boom & Logging Co. t.
Neeson, 20 Wash. 142, 146, 64 Pae. 1001;
Stuart V. CHark, 2 Swan, 0, 16, 68 Am. Dee.
49; Irwin T. Brown, 3 Shannon, CHaa. 309;
Webster v. Harris, 111 Tenn. 068, 677, 69
UR.A. 324, 69 S. W. 782; Little Bock, U.
R. ft T. R. Co. T. Brooks, SO Ark. 403, 409^
43 Am. Rep. 277.
.A^iOOglC
leis.
UNITED STAIBa t. CEE68.
Inglf b7 later dedstona of tha Murt of laat
r«aort of that state. Canal Fund ComrH. r.
Keupahall, 26 Wand. 404, 410; Child v.
Starr, 4 Hill, 869, 372; Ft. Plain Bridge Co.
T. Smith, SO N. Y. 44, 63; Smith t. Eocliea-
ter, 93 N. Y. 463, 482, 44 Am. Dec. Se3; Ful-
ton Light, Heat, ft P- Co. t. State, 200 N.
Y. 400, 418, 87 L.R.A.(N.S.) 307, 84 N. B.
lao.
Many atate oourta, including tha court
at appeals of Kentnelcy, have held, alio,
that the legislature cannot, by simple decla-
ration that a stream ihall be a public high-
way, If in fact it be not navigable in ita
natural itate, appropriate to public uae
the private rights therein without compcn-
nation. Morgan v. King, 18 Barb. 277, 284,
35 N. T. 4&4, 459, 461, » Am. Dee. 68;
Chenango Bridge Co. v. Paige, 8S N. Y. 178,
ISS, 3S Am, Rep. 407; Murray v. Preston,
106 Ky. S81, 063, 90 Am. St. Rep. 232, 60
S. W. 10051 Stuart v. Clark, 2 Swan, B,
17, 68 Am. Dec. 40; Walker t. Board of
Public Works, 18 Ohio, 640, 644; Olive
T. State, 88 Ala. 8B, 92, 4 L.R.A. 33,
6 So. 863; People ex rel. Ricks Water Co.
T. Elk River Mill & Lumber Co, 107 Cal.
BSl, 224, 48 Am. St. Rep. 126, 40 Pac. 631.
And eee Thunder Bay River Booming Co.
T. Speeehly, 31 Mich. 330, 346, IS Am. Rep.
184 i Koopman v. Blodgett, 70 Mich. 810,
n«ie, 14 Am. St. Rep. 627, 38 N. W. 840.
g This court has faltowed the same line o(
■ diatinction. 'That the teat of navigability in
fact tliould be applied to streams in tlieir
natural condition was in effect held in Tho
Daniel Ball, 10 Wall. 657, 19 L. ed. 090,—
a ease which turned upon the question
whether. Grand river, in the state of Michi-
gan, was one of the "navigable waters of
the United States" within the meaning of
acts of Congresi that regulated vessels car-
rying merchandise and passe ngers upon such
waters. Mr. Justice Field, speaking for the
eonrt, after showing that the tidal test
was not applicable in this country, said (p.
663] I "A different test must, therefore, be
Applied to determine tiie navigability of our
rivers, and that Is found In their navigable
capacity. Those rivers must be regarded as
publie navigable rivers in law which are
navigable in fact. And they are navigable
la fact when they are used, or are sua-
eeptible of being used, in their ordinary eon-
A'tion, as highways for commerce, over
which trade and travel are or may be con-
ducted in the customary modes of trade and
travel on water." The point was set forth
more clearly in The Montello, 80 Wall. 430,
£2 L. ed. 301, where the question was wheth-
er Fox river, in the state of Wisconsin, was
ft navigable water of the United States with-
in the meaning of the acts of Congress.
There were rapida and falls in th« river.
but the obstructions caused by them had
been removed by artifleial means so as to
furnish uninterrupted water communication
for steam vessels of considerable capacity.
It was argued (p. 440) that although tha
river might now be considered a higliway
for commerce conducted in the ordinary
modes, it was not so in its natural state,
and therefore was not a navigable water of
the United States within the purview of
The Daniel Ball decision. The court, ac-
cepting navigability In the natural state
of the river as tiie proper test, proceeded to
show that, even before the improvements
resulting in an unbroken navigation were
undertaken, a large and successful inter-^
atate commerce had been carried on through^
this river by means of Durliam boats, 'which*
were vessels from 70 to 100 feet in length,
with 12 feet beam, and drawing, when
loaded, from 2 to 8} feet of water. The
court, by Mr. Justice Davis, declared (p.
441) that it would be a narrow rule to hold
that, in this country, unless a river was
capable of being navigated by steam or sail
vessels, it could not be treated as a publio '
higliway. "The capability of use by the
public for purposes of transportation and
commerce alTords the true criterion of the
navigability of a river, rather than the ex-
tent and manner of that use. If it be
capable in ttt nalural state of bein^ used
for purposes of commerce, no matter in
what mode the commerce may be conducted,
it is navigable in fact, and becomes in law
A publio river or highway." And again <p.
443): "There are but few of our fresh-
water rivers which did not originally pre-
sent serious obstructions to an uninter-
rupted navigation. In eome cases, like the
Fox river, they may he so great while they
last as to prevent the use of the beat in-
strumentalities for carrying on commerce,
but the vital and tucittiat point it whether
the nafurol navigation of the river is such
that it affords a channel for useful com-
merce. If this be BO the river is navigabla
in fact, although Its navigation may be en-
compassed with difficulties by reason of
natural barriers, such as rapids and sand
bars." Numerous decisions of state courta
were cited as supporting this view, includ-
ing Bome of those to which we have referred.
Pumpelly t. Green Bay k M. Canal Co.
13 Wall. 188, 20 L. ed. 667, involved tha
right t« compensation for land overflowed
with backwater from a dam erected and
maintained in the Fox river, under author*
ity of the state of Wisconsin, for the im-
provement of navigation, (A permissible
exNclse of state power, in the absence of
action by Congress, although it was an fn-
terstata navigable water. Willson v. Black
Bird Creek Marsh Co. 2 Pet 245, 251, T
A^iOOglC
334
37 SUPREME COURT REPORTER.
Ooi. Tebii,
.L. ed. 412, 414; Gilman t. PMIadelphU, 3
g W»U. 713, 18 L. ed. 96.) The raiaing ol
* the rivtr abave'ite natural stage, hj meana
of mn artificial structure, was the grava-
men of the complaint It tras argued (p.
174) that the state migbt, in the interest
of the public, "erect such works as maj bs
deemed expedient for the purpose of im-
proving the navigation and Increasing use-
fulness of a navigable river, without ren-
dering itself liable to individuals owning
land bordering on such river, for injuries
to their lands reautting- from their over-
flow b; reason of such improvements." This
court overruled the contention, and held
there was a taking without compensation,
contrary to the applicable provision of the
Constitution of Wisconsin.
In United States v. LTnah, 188 U. S. 446,
47 L. ed. 630, £3 Sup. Ct Rep. 349, the
same principle was applied in the case of
an operation by the government of the
Unit^ States. For the improvement ol the
navigation of the Savannah river co'tain
datns and other obatructions vrere placed
And maintained in its bed, with the result
of raising the water above ita natural height
and backing it up against plaintiff's
bonkment upon the river and interfering
with the drainage of their plantation. This
waa held (pp. 465, 471) to b« a talcing of
private property, requiring compensation
under tbe 6th Amendment, notwithstanding
the work waa done by the government in
improving tbe navigation of a navigable
river, llie raising of the water above ita
natural level was held to be an invasion of
the private property thereby flowed.
In several other cases the limitation of
the public right to tbe natural state of the
stream has been recognized. Packer v.
Bird, 137 U. S. 661, 667, 34 L. ed. 819, 820,
11 Sup. Ct. Kep. 210; United States v. Rio
Grande Dam ft Irrig. Co. 174 U. B. 800, 698,
43 L. ed. 1136, 1139, 19 Sup. Ct. Rep. 770;
Leovy v. United States, 177 U. S. 621, 631,
44 L. cd. 914, 918, 20 Sup. Ct. Rep. 70T.
It follows from what we have said that
the servitude of privately-owned lands form*
log the banks and bed of a stream to the
^Interests of navigation Is a natural servi
^tnde, confined to such atreama aa, in their
• ordinary and natural Audition, are naviga-
ble in fact, and conflned to the natural con-
dition of the stream. And, assuming that
riparian owners upon non-navigable tribu-
teries of navigable streams are subject to
such inconveniences as may arise from the
ezerciae of the common right of navigation,
this in like manner muat be limited to the
natural right. The findings make it clear
that the dams in question, constructed b;
the government in tbe Cumberland and Ken-
tuoky rivars, reapectively, are for raising the
level of those streams along certain
stretches by means of backwater, so as to
render them, to the extent of the raisuig,
artificial canals instead of natural water-
ways. In the language of engineering, the
government has "canalized" the rivers. VVe
intimate no doubt of the power of tbe
United States to carry out this kind of
improvement. Nor do we doubt that, upon
the completion of the improvements, these
rivers: the Cumt>erland, iKcause It is an
avenue of communication between two
states; the Kentucky and also the Cumber-
land, because, in connection with the Ohio
and Miasiasippi rivers, they furnish high-
ways of commerce among many states (Gil-
man V. Philadelphia, 8 Wall. 713, 725, IS
L. ed. 96, 69; Tbe Daniel Ball, 10 Wall.
657, 563, 19 L. ed. 999, 1001; South Caro-
lina V. Georgia, 03 U. S. 4, 10, 23 L. ed.
782, 783),— remained navigable waUrs of
tbe United States for all purpoaea of Fcd>
eral jurisdiction and regulation, notwith-
standing the artificial character of the im-
provementa (E« parte Boyer, 109 U. 8.
629, 632, £7 L. ed. 1056, 1067, 3 Sup. CL
Bep. 434) The Bobert W. Paraona (Perry
V. Haines) 101 U. S. 17, 23, 48 L, ed. 73,
78, 24 Sup. Ct. Rep. 8).
But the authority to m^e such improve-
ments is only a branch of the power to
regulate interstate and foreign commerce,
and, aa already stated, this power, like
others, must be exercised, when private
property ia taken. In subordination (o the
5th Amendment. Monongahela Nav. Co. v.
Unit^^l SUtes, 148 U. S. 312, 336, 37 h.
ed. 463, 471, 13 Sup. Ct. Rep. 622; United
States T. Lynah, 188 U. S. 445, 465,. 471, 47
L. ed. 539, 646, 649, 23 Sup. Ct. Rep. 349.
And we deem it clear that so much of then
properties of the respective* defendants in>
error as was unaffected by the flow of the
rivers or their tributaries prior to the con-
struction of the locks and dams in question
was private property, and not subject to be
overflowed, without compensation, in the
raising of the level of the rivers by means
of artificial dams.
These cases have no proper relation to
cases such as Gibson v. United States, 166
U. S. 260, 41 L. ed. 906, 17 Sup. Ct. Rep.
678, where no water was thrown back oa
claimant's land, and the damage waa con-
fined to an interference with the access
thence to the navigable portion of the river;
Scranton v. Wheeler, 179 U. S. 141, :53, 45
L. ed. 126, 133, 21 Sup. Ct. Rep. 48, which
likewise had to do with the interruption
of access friHU riparian land to a navigable
channel; Bedford v. United States, 192 U.
8. 217, 225, 46 Ti. ed. 414, 417, 24 Sup.
Ct. Rep. 238, where the damage to claim-
ant's laud remlted from operation eon-
,A_.OOglC
1«1G.
UNITED STATES v. CBBSB.
dneUd by the govemmeiit B milta farther
up the river; Jackson t. United States, 230
U. S. 1, 23, 57 L. ed. 1383, 13T4, 33 1
Ct. Hep. 1011, where owner* ol Unds on
east bank of the MiBBiHsippl claimed (
pens&tion ai for a taking of tlieir property
bj reason of the effect of levees built <
the west bank opposite their lands U
part of a system of levees designed to pre-
vent crevassea, retain the wat«r in the river,
and thus improve the navigation. In each
of these, there waa no direct invasion of
the lands of the claimants, the damages
were altogether consequential, and the right
to compi.'nsation was denied on that ground.
(2) It is contended, in No. 84, that the
damage to Cress's land by the overflow of
6A acres, because it depreciated its value
only to the extent of one balf, does not
measure up to a taking, but la only a "par-
tial injury," for which the government is
not liable. The findings, however, render it
plain that this is not a ease of temporary
flooding or of consequential injury, but a
permanent condition, resulting from the
erection of the lock and dam, by which the
^land is "subject to frequent overflows of
Mwater Irom the river." Tliat oveidowing
• lands by permanent backwater is a direct
Invasion, amounting to a taking, is settled
bv rumpelly v. Green Bay k M. Canal Co.
13 Wall 16B, 177. 20 L. ed. 557, 660; United
SUtes V. Lynsh, IBS U. S. 445, 400-470,
47 L. ed. 539, S4T-540, 23 Sup. Ct. Eep. 349.
It is true that in the Tumpelly Case there
was an almost complete destruction, and lu
the Lynah Caae a complete destruction, of
the value of the lands, wliile in the pres-
ent case the value is impaired to the extent
of only one half. But it is the character of
the invasion, not the amount of damage re-
sulting from it, BO long as the damage is
substantial, that determines the question
whether it is a taking. As the court said,
■penking by Mr. Justice Brewer, in United
States V. l.jnah, 188 U. S. 446, 470. 47 U
ed. 539, 648, 23 Sup. Ct. Rep. 34S: "Where
the government by the construction of a
dam or other public works so floods lands
belonging to an individual aa to substan-
tially destroy their value, there is a taking
within the scope of the Sth Amendment.
While the government does not directly
proceed to appropriate the title, yet it takes
away the use and value; when that is done
it IB of little consequence In whom the fee
may be vested. Of course, it results from
this that the proceeding must be regarded
as an actual appropriation of the land, In-
cluding the possession, the right of poe-
session, a^d tlie fee; and when the amount
awarded as compensation is paid, the title,
the fee, with whatever right* may attach
thereto, — in thia eas* those at leaat whieh
87 B. &— M.
belong to a riparian proprietor, — pass to the
government and It becomes henceforUi the
full owner." There is no difference of kind,
but only of d^ree, between a permanent
condition of continual overflow by back-
water and a permanent liability to in-
termittent but inevitably recurring over-
flows; and, on principle^ the right to
compensation must arise in the one case
as in the other. If any substantial en-
joyment of the land still remains to the
owner. It may be treated as a partial in-
stead of a total devesting of his property
in the land. The taking by condemnationg,
at an interest less than the fee ia famillarg
in the law of eminent* domain. Where*
formal proceedings are initiated by the party
condemning, It Is usual and proper to
specify the precise Interest taken, where less
than the fee. But where, as in this case,
the property owner resorts to the courts,
as he may, to recover compensation for what
actually has been taken, upon the principle
that the government, by the very act of tak-
ing, impliedly has promised to make com-
pensation because the dictates of justice
and the terms of the Sth Amendment so r«>
quire (United States v. Great Falls Mfg.
Co. 112 U. 8. 645, 068, 28 L. ed. 848, 860,
6 Sup. Ct. Rep. 300; United States v. Lynab,
188 U. S. 446, 405, 47 L. ed. 630, 640, 23
Sup. Ct. Rep. 340), and it appears that lew
tiiau the whole has been taken and is to be
paid for, such a right or interest will be
deemed to pass as la necessary fairly to
effectuate the purpose of the taking; and
where, as in this case, with respect to the
6iS acres, land is not constantly but only
at Intervals overflowed, the fee may be per-
mitted to remain In the owner, subject t«
an easement In the United States to over-
flow it with water as often as necesarily
may result from the operation of the lock
and dam for purposes of navigation.
(S) In No. 84 some question ia mada*-
about the allowance for the damage to the
land by the destruction of the tord acrosa
Whiteoak creek and the pass way, but we
deem the objection unsubstantial. It is
said there is nothing to show bow Cress ac-
quired ownership of the ford, and tliat it
does not appear that he bad a right to pas*
over the adjoining land o( one Brown. It
seems to us, however, that the flndinga,
while meager, sufliciently import tliat Cresa
had a right to a private way and ford aa
appurtenant to his land, and that the dam-
age to the land by the destruction of the
ford was (600. Tliis brings the caae square-
ly within United SUtes *. Welch, 217 V.
S. 333, 33D, 54 L. ed. 787, 78S, 23 LJtA.
[N.B.) 386, 30 Sup. Ct Rep. 027, IS Anm.
Caa. 680, and United States v. Qrisurd, 21*
A^iOOglC
ST SUPSiaiE COURT REPOSTER.
Oor. Tebh,
V. B. 180, 1B4. 183. fiS L. ed. 165-167, 81
L.RJL.(N£.) 113S, 31 Sup. Ct. Rep. 162.
(4) In N«. 718 there is & contention tbst,
^beciuM the backwater is confined to Mll-
SPIer'a creek, it doe* not'smount to a taking
o( land. But the findings render it plain
that it liad the neceuary eSect of raising
tlie crcelc below the dam to such an extent
M to destroj the power of the milldam that
wae essential to the value of the mill) or,
as the flndingB put it: "The water above
the lock and dam, when it ii at pool etaga,
ia about 1 foot below the creat of tha mill-
dam, which prevents the drop in the current
which is neceHsary to run the mill." Under
the law of Kentucliy, owuerahip of the bed
of the creek, subject only to the natural
flow of the water, ia recognized as fully
as ownership of the mill itself. The right
to have the water flow away from tlie mill-
dam unobstructed, except as in the course
of nature, is not a mere easement or ap-
purtenance, but exists by the law of nature
as an inseparable part of tlie land. A dC'
•tructioii of this right is a taking of a
part ot the land. Gardner v. Newburgh, 2
Johns. Ch. ]C2, 100, 7 Am. Dec. 528; Tyler
T. Wilkinson, 4 Mason, 3U7, Fed. Cas. No.
14,312; Johnson v. Jordan, 2 Met. 234, 239,
37 Am. Dec. 85; Wadsworth v. Tillotson,
IE Conn. 366, 373, 39 Am. Dec. SQl; Parker
V. GHswold, 17 Conn. 288, 2B9, 42 Am. Dec.
739; Harding v. Stamford Water Co. 41
Conn. 87, B2; Holsman v. Boiling Spring
Bleaching Co. 14 N. J. Eq. 335, 343; Beach
V. Sterling lion & Ziue Co. 64 N. J. Eq.
69, 73, 33 Atl. S8B; Scriver v. Smith, 100
N. Y. 471, 480, 53 Am. Rep. 224, 3 N. E.
676; Crook v. Hewitt, 4 Wash. 740, 764,
31 Pac. 23; Rigney v. Tacoma Light &
Water Co. 0 Wash. 676, 683, 26 L.R.A. 425,
38 Pac. 147; Benton v. Johncos, 17 Wash.
277, 281, 39 L.R.A. 107, 01 Am. St. Rep.
912, 40 Pac. 496; Lux t. Haggin, 69 Cah
255, 390, 10 Pac. 674; Hargrave v. Cook,
108 Cal. 72, 77, 30 L.R.A. SBC, 41 Pac. 18j
Pine T. New York, 103 Fed. 337, 339, 60
C. C. A. 145, 112 Fed. 98, 103; Wood v.
Waud, 3 Exch. 74S, 776, 154 Eng. Reprint,
1047, 18 L. J. Exeh. N. S. 305, 13 Jur. 472,
10 Eng. Rul. Cas. 220; Dickiason t. Grand
Junction Canal Co. 7 Exch. 2S2, 209, 156
Eng. Reprint, 953, 21 L. J. Exch. N. S.
241, 16 Jut. 200; Stokoe v. Singers, 8 El.
& BI. 31, 30, 120 Eng. RepHnt, 12, 26 L. J.
Q. B. N. S. 257, 3 Jur. N. S. 1256, 5 Week.
Rep. 756 (Erie, J.).
(5) In both caaea It ia urged that there
was error In allowing costs against the
govammenL Section 24(20) of the Judi-
cial Cod«, 36 Stat, at L. 1D03, chap. 231.
Comp. Stat 1013, | 081(20), under whkkH
the Bulti were brought, originated in than
provisions of the so-called Tucker Act'trf"
March 3, 1887, chap. 359, 24 SUt at L.
605, Comp. SUt. 1913, g 991(20), and th«
argument of the government ia that whlli,
under | 15 ot that act, costs were recover-
able against the United States, in the dia-
trict court as in the court of claims, yet
that I 297, Judicial Code, repealed all of
the Tucker Act with the exception of g§ 4,
6, 6, 7, and 10, which relate to matters of
procedure, and that there ia no longer any
authority of taw for allowing costs against
the United States in suits brought in tb«
district court. The fact ia that 3 297, Judi-
cial Code, besides the clause repealing the
Tucker Act, with the exceptions mentioned,
contains in its final paragraph a repeal ot
"all other acts and parts of acts, in so far
as they are embraced within and super-
seded by this act." Now, not only ia the
provision ot § 2 of the Tucker Act, con-
ferring upon the district courts concurrent)
jurisdiction with the court of claims over
certain claims against tlic United States,
carried into g 24(20) of the Code, but the
provision of S 15 of the Tucker Act fur tha
allowance of eosta against the government
is carried in as g 162. It is true tiiat S 24
(20) is a part of chapter 2 of the Code,
entitled "District Courts — Jurisdiction,"
while § 162 is a part of chapter 7, entitled,
"The Court of Claims." But by gg 294 and
2B5 It is declared and enacted aa follows:
"Sec. 294. The provisions of this act, io far
as they are substantially the same as ex-
isting statutes, shall be construed as con-
tinuations thereof, and not as new enact-
menta, and there shall be no implication of
a change of intent by reason ot a change of
words in such statute, unless such change
of intent shall be dearly manifest. Sec.
2BS. The arrangement and classification of
the several sections of this act have beea
mads for the purpose of a mors convenient
and orderly arrangement of the same, and
therefore no Inference or presumption of ft
legislative construction is to be drawn by
reason of the chapter under which any par-^
ticular section is placed." ^
•From this it is plain that g 152 of tha-
Code applies to suits In the District Courta,
aa well as to those in the Court of Claima.
Judgment affirmed.
zsdbyGoogle
UTAH POWER Jt LIGHT CO. T. tmiTED STATES.
1010.
(Ml tj. 8. rat)
UTAH POWER b LIGHT OOUPANT,
Appt.,
UNITED STATES. (No. 202.)
UNITED STATES, Appt,
UTAH POWER & LIGHT COMPANY. (No.
iraiTED STATES. (No. 201.)
UNITED STATES, Appt,
LUCIEN L. NUNN et al., Apple.,
UNITED STATES. (No. 208.)
UNITED STATES, Appt,
LUCIEN L. NUNN et al. (No. 207.)
Public Lands fr=»7— Statbb — Relation
TO Fei'ebal Govebnuent — Exclcbivi-
KBSB OF Fedekai. Coktbol or Publio
1. iiie incluBioD within a Ht&te of landa
of the United States does not take front
CongreBi the power to control their occu-
pancj and use, to protect them from trei-
faaa and injury, and to prescribe the eondi-
ione upon which others may obtain righta
in them, even though this ma; involve the
ezerciBc in aome measure of what ia com-
monly known as the police power.
[Bd. NUs.— For otber cam. Ma Publle liBndi,
C«it. Clt. H T, H.]
Public LaitDS «=>T— States — Relation
TO Fbdsral Oovebnuent — ExcLusivz-
VKSB OF Fedbsal Contbol or Public
Lands — t'sK fob Cohicebcial Bnteb-
2. Ststo lawa, including thou relating
to the exereiee of the power of eminent
domain, have no bearing upon a controversj
over the right to use public landi of the
United Statea within the atate as sites for
commercial enterprise*, except so far as
such laws may have been adopted or made
applicahle by Congress.
[Ed. NMa.— For other caasa, see Public Ijindi,
C«lt. Dll. H T, M.]
Public Lands ^=>7—Vex fob Risht of
Wat fob Electbiu Fowbb— Bjcpeal of
Obaht.
3- So far aa they may have been ap-
?Ucable to righta of way for electric power,
t. S. Rev. Stat ff 2339 and 2340
(Comp. St. 1913, II 4647, 4648), grant-
ing a right of way over the public lands
for ditches, canals, and reaervoirs used in
diverting, storing, and carrying water for
"mining, agricultural, manufacturing, and
otlier purposes," were superseded by the
enactment of the Act of May 14, 1806 (20
Stat, at L. 120, chap. JTO, Comp. Stat. 1013,
■ 4044), emDowerlnr the Secretary of tha
ssr
Interior, "under general regulations to be
flxed by him, to permit the use of right of
way to the extent of twenty-five feet, to-
gether with the use of necessary ground,
not exceeding forty acres, upon the public
lands and for et raservatioi^s of the United
States, by any citizen or association of
citixens of the United States, for the pur-
poae of generating, manufacturing, or dis-
tributing electric power." The omission
from this statute of^ an^ mention of ditches,
canals, and reservoirs is of no signitlcance,
since it Is similarly silent respecting power
houses, transmission lines, and subsidiary
Btructurea.
[Bd. Nola.— For otber casoa, sea Publla Luanda,
Cent. Dll. It T. M.]
Public Lands ^=7— Use fob GenebaT'
INO AND DISTBIBUTING ElLECTBia En-
noz— Conqbebsional Absent.
4. No right to use the public lands as
site* for works employed in generating and
diatributing electric power can be founded
upon the piovisioiis of the Act of March 3,
IS'Jl (28 Stat, at L. 1005, chap. 581, Comp.
Stat. 1813, §3 4034-4037), S§ 18-21, relat-
ing to rights of way for ditches, canals, and
reservoirs for the purpose of irrigation, and
calling for the filing of maps of location
which are to be effective and noted upon
the public records when approved by tiie
Secretary of the Interior, or upon the pro-
visions of the Act of May 11, 18S8 (30
Stat, at L. 404, chap. 202, Comp. Stat. 1013,
H 4M3, 4938). permiUing rights of way "ap-
proved" under the earlier statute to be used
for certain additional purposes, including
the deveLopment of power ''as subsidiary to
the main purpose of irrigation," where no
maps of location have been filed or ap-
proved, the rights of way are not claimed
merely for ditchea, canala, or reservoirs, and
irrigation is neither the sola nor the main
purpose for which any part of the asserted
rights of way is used.
[Bd. Nota.— Far otber aasea. sea Pnbllo Lands,
CeoL QIi. il T, 14.]
PuBuc Lands ^=>7— Use fob Gxherat-
INO and DiBTKiBuiina Bixctbio Er-
IBQY--Coi(OBEB8IOHAL ASSENT.
5. Those who have not conformed to
the requirements of the Act of February 16,
IBOl (31 Stat, at L. 790, chap. 372, Comp.
SUt. 1013, 3 4040) and have received no
permission or license under It, can claim
no right under such statute to uae the pub-
lic iMids as eitea for works employed in
generating or distributing electric power.
[Bd. Nota.— ror other aaea^ saa PabUo L^ndL
CanL Dig. H T. 14.1
Woods and Fobests (t~<8 Use of Pubuo
Lands fob GENEBATiito and Distbibot.
INO DLBCTBIC E.fEBOT— COIfOBBSaiONAL
0. The right to use the public lands fn
forest reservations as sites tor works em-
ployed in generatins and distributing elec-
tric power, some of which is sold in adja-
cent or distant towns, or to those who are
engaged in mining or milling or in redu-
cing ores, was not given fay the Act of Febru-
ary 1, 1006 (33 SUL at L. 628, chap. 288,
Comp. Stat. 1013, § 823), which provides
for rights of way in forest reserves lor^
M sac same topic * KBT-NUUBBB In aU K«r-N*unberad DlgwU t II
87 SUPREaiE COUET REPORIEB.
Oct. Tebk.
ditchea, can&Ia, reservoirs, uid tha
(making no provfiion for power hoiuei,
trail sraisai on lines, or HUbsidiary struc-
tures) ''for municipal or mining purposea,
and for the purpoBea of the milling and —
duction of orcB."
BsTOEPu. «=.G2(2)— Of Ukitbd St4i™
Acts or Officehs and Aqemtb.
7. No underatandiug and agieement with
the officers or agents of the United SUtes
can eatop tlie government from questioning
the right to use the public land in forest
reservations as iites for works employed in
generating and distributing electric power.
oi.^Dri"sT •""' "•" ■- "■"•""■
Estoppel ®=302(2)— Of Unitbd States-
Laches OB KEOLECT of DuTt BY Of-
8. I'hc United States is not estopped to
question tlie riglit to use pul>Iic lands in
forest reservatiuna as eites for works em-
ployed in generating and distributing elec-
tric poiver because tlie agents in the forestry
service, and other government officers ana
employees, with knowledge of wlia,t the power
companies ivere doing, not only did not ob-
ject thereto, but impliedly acquisced there-
in until after the works were completed and
put into operation,
[Ed. Note.— For otlier caie>, ■>• Esloppal,
OdI. D1|. { 153.]
Woona Axn Fohebth e=8— AoMisiBrn *-
TiVE Reoulatio.\s-Who Mat Qoestiow
\ AI.10ITT.
9. Those using tbe public lands in for-
est reservations as sites for works employed
in distributing electric power without seek-
ing a license or permit under the Act of
Febi-uarv 15, 1001 (31 Stat, at L, 700, chap.
372, Comp. Slat. 1013, g 4046), or conform-
ing or offering to conform to all lawful ad-
ministrative TUgulations promulgated under
that statute, are not in a position to com-
plain that some of sucli regulations go be-
yond what is appropriate for the protec-
tion of the interests of the United States,
And are unconstitutional, unauthorized, and
unreasonable.
WooDB AND Forests *=8 — Use of Pcrlic
Lands for Genrratino and Dirtkiuut-
IMO Eleutbio Enerot—Conobesstonal
10. Congressional enactments providing
or reeosnizing (hat rights to the use of wat-
er in streams running through tbe public
lands and forest reservations may be ac-
quired in accordance with local laws huve
no application to a controversy over tlie
right to use the public lands and forest
reservations as sites for works employed in
generating and distributing electric power.
Woods asd Forests ^^8 — U?ii.AWrUL
Use— COUPBNBATtOH TO GOVEHNilEST.
11. .^propri&te compensation to the
tJnIted States for the past use and occu-
pancy of public lands in forest reservations
M sites for works employed in generating
•itid distributing electric power without the
consent oE the United States, and contrary
to its laws, should be included in a dci^ree
enjoining such use, and should be measured
by tbe reasonable value of the occupancy
and use, considering its extent and dura-
tion, and not by the settle of charges fixed
by administrative regulations promulgated
by the Act of February 15, 1901 (31 MtaL
at L. 790, chap. 372, Comp. Stat 1013, {
4046), for use and occupancy under a license
or permit granted undfr that statute.
[Nob. 202-207.]
the United States for the District
of Utah to review decrees enjoining, but
without compensation for prior occupancy
and use, the continued occupancy and use
of public lands in the forest reservations
as sites for works employed in generating
and distributing electric power. Reversed
so far as such decrees deny the government's
right to compensation, and in other respects
afiirmed.
The facts ars stated in the opinion.
Messrs. Graham Sumner and William
V. Hodges for the Uub Power & Ught
Company.
Messrs. Clyde C. Dawson, Frank H,
Short, H. R. Waldo, Frank J. Uustia,
Charles A. Gillette, and Dean F. Brayton
for the Beaver River Power Company.
Mr. Albert R. Barnes, Attorney Ueneral
of Utah, Mr. Fred Farrar, Attorney General
of Colorado, Itlr. J. H. Peteison, Attorney
General of Idaho, Mr. George B. Thachcr,
Attorney General of Nevada, Mr. Willis E.
Reed, Attorney General of Nebraska, and
Messrs. Frank If. Short, Clyde C. Dawson
and S. A, Bailey heard on behalf of tha
slate of Utah and other states.
Messrs. John R. Dixon and William B,
for tlie
* Mr; Justice Van Dcvnulcr delivered the?
opinion of the court;
We are concerned here with three suits by
the United States to enjoin the continued
occupancy and use, without its permissioD,
of certain of its lands in forest reservations
in Utah as sites for works employed in
generating and distributing electric power,
and to secure compensation for such occo-
pntiey and use in the past. The reserva-
tions were created by executive orders and
proclamatiuns with the expre^^s sanction of
Congress. Almost all the lands therein
ilong to the United States, and before tha
iscrvntjona irere created were public lends
ibjcct to disposal and a?i|uisitk>B 1
> 111 Ker-Nufflberad UlsesU A Induss
D,at,z.,i-.,'^-.00'^IC
Ic A KEY
1910,
UTAH POWER * LIGHT CO. v. UNITED STATES.
SS9
the general knd laws. The works in qucs- |
tion consist of diversion dams, rcservoira,
pipe lines, pon-er houses, transmission lines,
and sume subsidiary structures. In the
aggregate these are used in collecting
water from mountain streams, in con-
ducting it for considerable distances to
povrer houses where tlie force arising
from its descent through the pi^ie lines is
transmuted into electric energy, and in
S transmitting that energy to places bejond
• the resei-vations, where it is sold* to who-
ever has occasion to use it for power, light-
ing, or heating. In each case some part of
the works is on private lands, but much
the greater part is on lands of the United
States. Part was constructed before and
part after the reservation was created, but
all after 1800 and nearly all after 1001.
The entire works ars conducted in each in-
stance as a commercial enterprise, and not
as an incident to or in aid of any other
business in which the defendant is engaged.
In occupying and using the government
lands as sites for tlieee works the defendatits
have proceeded upon the assumption that
tliey were entitled so to do without seeking
or securing any grant or license from the
Secretary of the Interior or the Secretary
of Agriculture under the legislation of Con'
gross, and, in truth, they have neither ap-
plied for nor received such a grant or license
from either. But. notwithstanding this,
they assert that they liave acquired and are
Invested with rights to occupy and use
permanently, for the purposes indicated, Vie
government lands upon which the works are
Tlie principal object of the suits, as is said
In one of the briefs, is to test the validity
of these asserted rights, and, if they be
found invalid, to require the defendants to
conform to the legislation of Congress, or,
at their option, to remove from the govern-
inent lands. Tlic district court rn)ed against
the defendants upon the main question, fol-
lowing a decision of the circuit court of ap-
peals in another case (120 C. C. A. STB, 200
Fed. EG4), but refused the government's
prayer for pecuniary relief. Cross appeals
were then taken directly to tliis court.
The first position taken ijy ths defendants
U that their claims must he tested by the
laws of the state in which the lands are
•ituate rather than by the legislation of
Congress, and in support of this position
Jicy say that lands of the United States
within a state, when not used or needed for
S« fort or other governmental purpose of the
fUnited Stales, are subject to the jurisdic-
tion, powers, and laws of the state in the
same way and to the same extent as ar*
aimilnr lands of others. To this we cannot
UMut. Mot only doea the Constitution
(art. 4, S 3, cl. 2) commit to Congress the
power "to dispose of and make all needful
rules and regulations respecting'' the lands
of the United States, but the settled course
of legislation, congressional and state, and
repeated decisions of this court, have gone
upon the theory that the po^vcr of Congress
Is exclusive, and that only through its exer-
cise in some form can rights in lands he-
longing to the United States lie arquired.
True, for many purposes a state hns civil
and criminal jurisdiction over lands within
its limits belonging to the United SUtes.
but this jurisdiction does not e.vtend to any
matter that is not conaistent with full
power in the United States to protect its
lands, to control their use, and to prescribe
in what manner others may require rights
in them. Thus, while the slate may punish
public offenses, such as murder or lart^eny,
committed on such lands, and may t&x
private property, such as live stock, iDcated
thereon, it may not tax the lands them-
selves, or invest others with any right
whatever in them. United States v. Alo-
Bratney, 104 U. S. 021, 024, 20 L. ed. 809,
870; Van Brocklin v. Tennessee (Van Brock-
lin V. Anderson) 117 U, S. 151, 108, 20 L.
cd. B4B, 851, 8 Sup. Ct. Rep. 070; Wisconsin
C. R. Co. V. Price County, 133 U. S. 49C, 5M,
33 L. ed. 037, 600, 10 "Sup. Ct. Rep. 341.
From the earliest times Congress by its
legislation, applicable alike in the states
and teriitories, has regulated in many par-
ticulars the use by others of the lands of the
United States, has prohibited and made
punishable various acts calculated to be in-
jurious to them or to prevent their use in
the way intended, and has provided for and
controlled the acquisition of rights of way
over them for highways, railroads, canals,
ditches, telegraph lines, and the like. Ttie
states and the public have almost uniform-
ly accepted this legislation as controlling,
and in the instances where it has been ques-^
tioncd in this court its validity has bcenO
upheld and'ita suprem.tcy over state enact-*
ments sustained. Wilcox v. Jackson. 13
Pet. 408, 610, 10 L. ed. 204. 273; Jourdan
V. Barrett, 4 How. 160, 135, 11 L. ed. 024,
031; Gibson v. Chouteau, 13 Wall. B2, 93,
20 L. ed. 634, 630; Carafield v. United
States, 167 U. S. 518, 42 L. ed. 200, 17 Sup.
Ct. Sep. 804; Light v. United States, 220 U.
S. 523, 630. B37, 55 L. ed. 570, 574, 31 Sup,
Ct. Rep. 485. And so we are of opinion that
the inclusion within a state of lands of the
United States docs not tnke from Congress
the power to control their occupancy and
use, to protect them from trespass and in-
jury, and to prescribe the conditions upon
which others may obtain rights in them,
even though this may involve the exercise
in some measure of wl '
,A_iOOglC
3S0
87 BUPKEME COURT EEPOETEH.
Ooi. Tau,
IcDOira aa the police pon«r. "A different
rule," as was said in Camfield t. United
States, 167 U. S. B18, 42 L. ed. 280, 17 Sup.
Ct. Sep. 864, "would place the public do-
main of the United States completely at the
mercy of state legislation."
It results that state lavs, indudiog tliose
relating to the exerciBe of the power of
eminent domain, have no bearing upon a
eontroversy such as is here presented, save
OS the; may have been adopted or made
applicable by Congress.
The next position taken by the defendants
is that tlieir claims are amply sustained by
g9 2339 and 2340 of the Revised Statutes,
originally enacted in 1800 [14 Stat, at L.
263, chap. 262, § 0] and 1870 [16 Stat, at 'U
218, chap. 235, g IT, Camp. Stat. 1S13, §}
4S4T, 4648]. By them the right of way over
the public lands was granted for ditches,
canals, and reservoirs used in diverting,
etoring, and carrying water for "mining,
agricultural, manufacturing, and other pur-
poses." The extent of the right of way in
point of width or area wbb not stated, and
the grant was noticeably free from con-
ditions. No application to an administra-
tive odicer was contemplated, no consent or
approval by such an oMcer was required,
■nd no direction was given for noting tho
right of way upon any record. Obviously
tliis legislation was primitive. At that tiras
works for generating and distributing elec-
tric power were unknown, and so were not
In the mind of Congress. Afterwards, when
ethey came into use, It was found that thii
riegislation was at best poorly adapted* to
their needs. It was limited to ditcli
canals, and reservoirs, and did not cot
power houses, transmission lines, or 1
necessary subsidiary structures. In that
situation Congress passed the Act of May 1 i,
181)6, chap. 179, ZS Stat, at L. 120, Comp.
Btat. iei3, § 4944, which related exclusively
to rights of way for electric power purposes,
and read as follows:
"That the Secretary of the Interior be,
and hereby is, authorized and empowered,
under general regulations to be fixed by
him, to pemiit the use of right of way to tlif
extent of twenty-five feet, together with th«
use of necessary ground, not exceeding forty
acres, upon the public lands and forest
reservations of the United States, by any
citizen or association of citizens of the Unit-
ed States, for the purposes of generating,
manufacturing, or distributing electrii^
We regard it as plain that this act auper-
•eded gS 2339 and 2340 in so far as they
were applicable to such rights of way. It
dealt Bpeciflcally with that subject, covered
it fully, embodied some new provisions, and
evidently was designed to be complete in
lti«lt. That it eootolnMi no exprew m«u-
tion of ditches, canals, and reserrolrs is of
no significance, for it was similarly silent
respecting power houses, transmission lines,
and subsidiary structures. What was done
wa* to provide for all in a general way
without naming any of them.
As the works in question were constructed
after gS 233S and 2340 were thus superseded,
the defendants' claims receive no support
from those sections. No attempt was made
to conform to the Act of 1S9G, and nothing
is claimed under It.
Some reliance is placed upon gg 18-21
of tbs Act of March 3, 1801, chap. 561, 20
8Ut. at L. 1005, Comp. Stat 1013, gg 4034-
4037, and the Act of May 11, 189S, chap.
292, 30 SUt. at L. 404, Comp. Stat. 1013, g
4D43. The first relates to rights of wa> lor
ditches, canals, and reservoirs for the pur-
pose of irrigation, and, differing from %i
2330 and 2340, calls for the filing of map^
of location which are to be eHective* and*
noted upon the public records wlien ap-
proved by the Secretary of the Interior.
The second permits rights of way "ap-
proved" under the first to be used tor cer-
tain additional purposes, including tlio de-
velopment of power, "as subsidiary to tlie
main purpose of irrigation." Sut here no
maps of location have been filed or ap-
proved, the rights of way are not claimed
merely for ditclies, canals, or reservoirs,
and irrigation is neitlier the sole nor th»
main purpose for wliich any part of the &•■
serted rights of way is used. So it is ap-
parent that the reliance upon these acts ia
ill-founded.
In the oral and written arguments conn'
sel have given much attention to the Act of
February 16, 1001, chap. 372, 31 Stat, at I.
790, Comp. Stat. 1013, g 4D4e. On the part
of the government It Is insisted that th«
comprehensive terms of the act and ita
legislative historyl conclusively show tbot
it was adapted as a complete revision of tha
confused and fragmentary right-of-way pro-
visions found in several earlier enactments,
including those already noticed, but tills
need not he considered or decided noir
iMyond observing that the act obviously
superseded and took the place of the law of
May 14, 1890, supra. Tlie act empowers tb«
Secretary of the Interior, "tinder general
regulations to l>e fixed by him," to permit
the use of riglits of way through the publio
lands, forest reservations,! etc., for any ona
1 Report Secretary of the Interior, 18S9,
pp. ft-7i House Report, 1850, 5ath Cong.,
Ist Sees.; Cong. Rco. n6th Cong., Ist Sess.,
0762; id., 56th Cong. 2d Sess., 207G.
■ The forest reserves were measureablj
placed under the eontrtd of tbe Secretary of
Agriculture by th« Act of February 1, IflOS,
chap. 288, 33 SUt. at U 628, Comp. StoU
"''■""■ L„,,. . ,^.oogic
mil.
UTAH POWER k UQHT CO. r. DNITBD STATBa
SBl
or more of MTerkl purpoiea, fneluding th*
generation and distribution of electrio
power, carefally deftnea the extent of luch
ri^ta of wAj, and embodiu pTOTiiiona not
^found tn *ny ol the MTlier anactmentg. But
etbe defendants cui claim nothing under the
• act. Thtj have not eonformed'to lt« re-
qniremente and have not receired anjr per-
mietion or license under it.
Another itatute upon whieli the defend-
anta rely ts the Act of Februarj 1, iSOS,
chap. S88, 33 Stat, at L. 628, Comp. Stat.
1913, S 823. But we think it does not help
tiietn. While providing for rights of way
In forest reBervee for ditches, canala, reier-
voire and the lilca "for municipal or mining
purposes, and for the purposes of the mill-
ing and reduction of ores," it makes no pro-
vision for power houses, transmission lines,
or subsidiary structures such as the de-
fendants have. And, in our opinion, the
purpoies nsmed do not include those for
which the works in question are used. It
is not enough that some of the electrio
energy Is sold in adjacent or distant towns,
or ta those who are engaged in mining or
in milling or reducing ores. In an opinion
rendered June 4, 1014, the Attorney General
■aid of this act: "The rights granted are
descrihed with particularity. The riglit of
way for transmitting and distributing elec-
trical power is not included expressly, nor
b it so intimately related to any of the
lights enumerated that a grant of the one
must needs hi implied as essential to the
enjoyment of the other." 30 Ops. Atly.
Oen. 203. We regard this as the correct
In their answers some Of the defendants
assert that when the forest reservations
were created an understanding and agree-
ment was kad between the defendants, or
their predecessors, and some nnmentioned
officers or agents of the United States, to the
effect that the reservations would not be an
obstacle to the construction or operation of
the works In question; that alt rights es-
sential thereto would be allowed and granted
nnder the set of ISOSj that, consistently
with this understanding and agreement, and
relying thereon, the defendants, or their
predecessors, completed the works and pro-
ceeded with the generation and distribution
of electric energy, and that, in consequence,
the United States is estopped to question
Sthe right of the defendants to maintain and
• operate the works. Of this'it is enough to
tay that the United States Is neither bound
nor estopped by acts of its officers or agents
in entering Into an arrangement or agree-
ment to do or cause to be done what the law
does not sanction or permit. Lee v. Munroe,
7 Cranch, 306, 3 L. ed. 373; Filor v. United
BtatM, g Wall 45, 49, IS L. «d. 649, (51;
Hart V. United SUtes, 65 U. S. 316, 24 L.
ed. 4TS; Pine Hiver Logging Co. v. United
Statea, 186 U. S. £79, 291, 46 L. ed. I1Q4,
1170, 22 Sup. Ct. Hep. 920.
Aa presenting another ground of estoppel
It Is said that the agents In the forestry
service and other officers and employees of
the government, with knowledge of what the
defendanta were doing, not only did not ob-
ject thereto, but impliedly acquiesced there-
in until after the works were completed and
put In operation. This ground also must
fall. As a general rule, laches or neglect
of duty on the part of officers of the govern-
ment is no defense to a suit by it to enforce
a public right or protect a public interest.
United States v. Kirkpatrick, 0 Wheat. 720,
73S. 6 L. ed. 199, 203; Steele v. United
States, lis U. 6. 128, 134, 2B L. ed. 052, 054,
5 Sup. Ct. Rep. 306; United States v. Beebe,
127 U. S. 338, 344, 32 L. ed. 121, 124, 8 Sup.
Ct. Rep. 1083; United States v. Insley, 130
U. S. 263, 266, 266, 32 L. ed. S68, 060, 0 Sup.
Ct. Rep. 485; United States v. Dalles UiH-
Ury Boad Co. 140 U. S. 699, 632, 33 L. ed.
MO, 671, II Sup. Ct. Eep. OSB; United
SUtes V. Michigan, 190 U. S. 370, 405, 47
L. ed. 1103, 1112, 23 Sup. Ct. Rep. 742;
State ei rel. Lott v. Brewer, 64 Ala. 287,
208; People v. Biown, C7 111. 433, 438; Den
ex dem. Candler v. Lunsford, 20 N. C. 542 (4
Dev. A B. L. 407); Humphrey v. Reg. 2
Can. Exch. 386, 300; Reg. v. Black, 6 Can.
Exch. £36, S63. And, if it be assumed that
the rule is subject to exceptiOTts, u'e find
nothing in the cases in hand which fairly
can be said to take them out of it, as hereto-
fore understood and applied in this court.
A suit by the United States to enforce and
maintain Its policy respecting lands which
it holds in trust for all the people stands
upon a different plane in this and some
other respects from the ordinary private
suit to regain the title to real property or
to remove a cloud from it. Causey v. Unit-
ed States, 240 U. S. SOD, 402, 00 L. ed. Til,
713, 30 Sup. Ct. Kep. 3S5. ,
By their answsrs the defendants assert^
tliat some of the'adm in i strati ve regulations*
promulgated under the act of February IS,
190], go beyond what is appropriate tor the
protection of the interest of the United
States and are unconstitutional, unauthor-
ised, and unreasonable. The regulations
occupy many printed pages and the answers
do not adequately show which regulations
are Msailed, or the grounds upon which
the invalidity of particular ones is asserted-
Tbat CongreSB intends there shall be some
administrative regulations on the subject
is plainly shown io the act, and that Its
discretion in the matter is not narrowly
confined is shown by our decisions in United
States V. Orlmand, 2S0 U. S. 606, 65 L sd.
D,at,z.,i-.,'^-.00'^IC
8»2
37 SUFBEUE COURT BEPORTER.
Oct. Tebk,
063, 31 Sup. Ct. Rep. 480, «nd Light t.
United SUte«, 220 U. S. 523, 55 L. ed. 670.
81 Sup. Ct. Rep. 435. 1/ any of tlie regu-
lations go beyond what Congress can author-
ize, or beyond what it Iiaa authorized, those
regulatioua are void and may be diaregerd-
•d; but not so of euch aa are thought mere-
ly to be illiberal, inequitable, or not con-
ducive to the beat results. In tbe nature ol
things it hardly can be that all are invalid,
and tills was conceded in argument. The de-
fendants Iiave not complied with any, or
really oITered to do so, but have proceeded
upon the theory that the act and alt the
regulations are without application to their
situation. In this they bave been mistaken,
and BO are occupying and using reserved
lands of tbe United States without its per-
miasion and contrary to its laws. Not until
they seek a license or permit under the act
and conform, or appropriately offer to con-
form, to all lawful regulations tliereundcr,
nill they be in a position to complain tliat
some of the regulations ate invalid. As we
interpret the decrees below, they enjoin tbe
defendants from occupying and using the
lands of the United States until, and only
until, they aciuire rights to do so by com-
plying with some applicable statute and the
lawful regulations. 0( course, we do not
imply that any of the regulations are in-
valid, but leave that question entirely open.
- Much is laid in the briefs about several
■ congi'essional*enactmcnts providing or recog-
nizing tliat rights to the use of water in
streams running through tbe public landa
and forest reservations may be acquired in
accordance with local laws, but these enact-
ments do not require particular mention,
tor this is not a controversy over water
rights, but over rights of way through lands
of the United Statea, which is a different
matter, and is so treated in the right-of-way
acts before mentioned. See Snyder v. Colo-
rado Cold Dredging Co. 104 C. C. A. 138,
181 Fed. 62, 60.
As the defendants have been occupying
and using reserved lands of the United
States witliout its permission and contrary
to its laws, we think it is entitled to have
appropriate compensation therefor included
in the decree. The compenaation ahould be
measured by the reasonable value of the
occupancy and use, considering Its extent
and duration, and not by the scale ol
chargea named in the regulations, as prayed
in the bill. However much this scale ol
chargea may bind one whose occupancy and
use are uoder a license or permit granted
nnder tbe statute, it cannot be talien as con-
trolling what may be recovered from an
occupant and user who has not accepted or
assented to the regulations in any way.
It follows that the decre«B are right and
roust be afGrmcd, save as they deny tha
government's right to compensation for th«
occupancy and use in the past, and in that
respect they must be reversed.
It is M ordered.
(M Q. B. 4m
CHICAGO & ALTON RAILROAD COll.
PAUr et «!., Plffs. in Err,
WILLIAM J. MoWHIBT.
CowarmjTioNAL I^w «b133, 245. 301—
Railroadb <S=>6— Iwpaibino Costbact
Oblioatiokb— Dub Pbocess or Law —
Dqual Protection of thb Laws— Lia-
BiLTTT OF Lessor Rail wax CouifAXT.
1. Applying to a domestic railway
company which ha* exercised its authority,
under a charter amendment (Mo. Laws
1870, p. 93), to lease its road to a non-
resident railway company, "upon such
terms as may be mutually atreed upon,"
the general provisions of Mo. Laws 1870,
p. 91, I 2, rendering any such leasing com-
pany liable jointly with the leasee for any
actionable tort of the latter, committed in
the operation of the road, does not impair
the obligation of the charter contract of
the lessor company, nor deprive it of it»
property without due process of law, nor
deny to it the equal protection of the laws,
where the subject is not dealt with in the
charter, and the statute was in force when
the lease was nmde.
[Ed. Note.— For otbor cues, sea Conitltntlanal
Law. Cent. DIk. H m, M. Tt». Mg-E53. S37; Kail-
roult. Cent. Dig. | 1.]
BowovAL or Cadsbs «=>4W3)— Separablk
CONTBOVEBSI— Fbacdhlknt Joihdbr.
2. A nonresident operating railway
company joined as party defendant with
its lessor, a resident railway company, in
ction for a tort committed in the opera-
tion of the road, may not remove the cause
to a Federal court as presenting a separa-
ble controversy between it and the resident
plaintiff, where, under the local law, the
case stated in plaintiff's pleading was one
of joint liability oQ tbs part of the defend-
ants, and there was no showing that the de-
fendants were fraudulently joined tor tha
purpose of preventing the removal.
lEd. Note.— For atbsr caaas, see Removal o(
Causes. Cent. DlB. t tl.)
[No. 714.]
IN ERROR to the Supreme Court of
the State of Missouri to review a judg-
: which affirmed a judgment of the
Circuit Court for Ralls County, in thak
state, in favor of plaintiff In a personal-
injury action In which both lessor and
lessee railway companies were joined as par-
ties defendant. Affirmed.
I* topic * KBT-NUUBSR In oil K*r-Namb*red Dlsests ft Indexsa
L',aii..,-)-,.*^-.OOglC
igjB.
CHICAGO 4 A. E. CO. t. v. MoWHIKT.
303
See ume cue below, — Mo. — , 187 B. |
W. S30. I
The facts are itaUd in the opinion. |
Meesn. Elliott H. Jones, William C.
Scnrritt, and Chaile* U. MUler for plain-
Uff* Id error.
Meatra. Futrlck Henry Cnllen, Thomat
T. Fauntlerof, and Charlea M. Hay for de-
teudant in error.
• * ill. Jufltice Tail Deranler delirered the
opinion of the court:
lliia was an action to recover for peraon-
al injuries caused, as wai alleged, by negli-
gently baching an engine and cars across a
public street in Vandal ia, Missouri, with-
out taking any preeautiona for the safety
of persons using the street at the time. The
action was against two railroad companies,
one incorporated in Misaouri and the other
in Illinois. The former had constructed
and still owned tlie railroad, and the latter
was operating it under a lease. A trial re-
sulted in a judgment for the pluintifT, and
this was alTirmed. — Mo. — , 187 S. W.
83Q.
The Missouri company was created by a
■pecial act in ISeO, Laws 1860, p. 40D,
which waa amended, with the company's
consent, by special acta in 18QS and 1370,
Laws 186S, p. 07; Laws 18T0, p. 93. A gen-
eral and older statute provided that all
subsequent corporate cliarters should be
"subject to alteration, Buspenaion, and re-
peal, in the discretion of the lef^slature,"
Rev. Stat. 1855, p. 371, § 7; but these spe-
cial acta declared that this provision should
have no application to them or to the Mis-
souri company. After the Act of 1350,
and before it was amended, the state adopt-
ed a new Constitution containing a provi-
sion Uiat corporations, other than for mu-
nicipal purposes, could be formed only
under general laws and that tliese miglit
be altered, amended, or repealed; but,
under the local dec] si one, it is doubt-
ful at least that this provision was ap-
plicable to subsequent amendments of char-
ters previously granted (State ex rel. Cir-
cuit Atty. v. Cape Girardeau & S. L. It.
Co. 4S Mo. 408; St. Joseph & L R. Co. t.
Shambaugh, 108 Mo. 557, SOO, 17 S. W. 681;
Callaway County v. Foster, 03 U. S, 687,
570, S3 L. ed. Oil, 012), and so it may be
put out of view. The amendment of 1S7D,
which took effect on March 20tb of that
Syear, authoriFcd the Missouri company to
■ lease its road'for a period of years to any
other railroad company "upon such terms
•■ may be mutually agreed upon." March
24 of the same year a geii^ral atatute waa
enacted which, aa locally interpreted, ren-
ders any railroad company of that state
leasing its road to a company of anothi
state liable jointly with the lessee for any
actionable tort of the latter, committed 1m
the operation of the road. Laws 1870, p.
01, § 2; Brown v. Louisiana & M, River B.
Co. 258 Mo. 522, 534, 105 S. W. lOSO. Fal-
lowing this enactment tlia Missouri com*
pany leased its road to the IlllnoU com-
pany, and It was under this lease that th«
latter vras operating the road when the
plaintiD' was injured. In the lease the leasee
agreed to pay off and satisfy all lawful
claims tor damages arising out of its neg-
ligence or dereliction of duty while operat-
ing the road.
The general sUtute of Mardi 24, 1870,
DOW embodied in Rev. SUt. 1900, % 3078,
was applied in tlils case over the Missouri
company's objection that it could not be
BO applied without bringing it in conflict
witli the contract clause of the Constitu-
tion of the United States and with the due
process and equal protection clauses in the
14th Amendment, like overruling of thia
objection and the denial of a petition for
removal to the Federal court are the mat-
tera to be reviewed here.
In invoking the contract clauae the Mis-
souri company goea upon the theory that
tlie special acts constituting its corporate
charter broadly aulliori^ud it to lease ita
road to any oilier railroad company upon
any terms whicli might be ajtreeable to
both, and that, in the absence of a reser-
vation of power to alter, amend, or repeal
the charter, a later statute qualifying the
authority to lease, or attaching any condi-
tion to its exercise,— >as by making the
company liable for the torta of tlie lessee
committed in conducting the road, — neces-
sarily impairs the obligation of tbc charter
contract While not doubting tliat any^
lawful contract contained in the charter isM
wttliin the* protect! OR of the clause invoked*
(Stone v. Mississippi, 101 U. S. 814, 616,
817, 26 L, ed. 1070), we find notliing in tha
charter respecting the liability of tlie Mis-
souri company for torts committed by an-
other company to which it commits tha
operation of its road under a lease. That
subject is not dealt with in the (barter in
any way. The provision that the leasing
may be upon such terms aa are mutually
agret^ablc to the partiea ia not tn point, for
it obviously relates to matters which ap-
propristcly can be left to the lessor and
icBsce, such as their rights and duties aa
between tliemselvcs, and not to matters ol
public concern, such as the rights of third
persons to recover for injuries sustained
through the negligent operation of the road
under tlie lease. Aa to the latter, we think
it is plain tliat no contract was intended
or made by the state, and that the matter
remained open to legislative action whoi
,A_.oogle
8M
87 SUPREME COURT KBFORIEE.
the proTlgloTi In tbe Act of Ibrch 24, 1870,
«M adopted. Texas £ N. 0. R. Co. r. Mil-
ler. 221 U. S. 408, 6S L. ed. 78S, 31 Sup.
Ct. Rep. G34i St. Louis & 8. F. R. Co. r.
Mathews, 165 U. 6. 1, 41 L. ed. 611, 17
Sup. Ct. Rep. 243; Chicago & A. R. Co. t.
I^anbarger, 23S U. S. 67, 76, 69 Ii. ed.
1204, 1210, 36 Sup. Ct. Rep. 678.
That prorisian was in force when the
lease was made. It Is Dot Inherently arbi-
trary, is found in the taws of other state*,
and applies to all railroad companies of
Missouri which lease their roadi to com-
panies of other states. In these circum-
stances It neither deprives the Missouri
company of its property without due pro-
cess of taw, nor denies to it tlie equal pro-
teetlou of the laws.
The plaintiff was a citizen of Mieaourt,
Mid, as before stated, one of the defendant*
was en Illinois corporation. The latter
sought to remove the case against It into
the Federal court upon the ground that the
same involved a distinct and separable con-
troversy between citizens of different states.
But the petition for removal was denied,
and rightly so. Under the local law the
ease stated in the plaintiff's pleading waa
one of joint liability on the part of the de-
(Jtendants, and, for the purpose of passing
^Dpon the'petition for removal, this was de-
cisive of the nature of the controversy,
there being no showing that the defendants
were fraudulently Joined for the purpose of
preventing a removal. Alabama O. S. R.
Co. Y. Thompson, 200 U. S. 200, 213 et eeq.,
SO L. ed. 441, 445, 20 Sup. Ct. Rep. 161, 4
Ann. Cts. 1147; Chesapeake ft 0. R. Co. v-
Cockreli, 232 V. 8. 146, 152, S8 L. ed.
«44, 647, 34 Sup. Ct. Rep. ZT8.
Judgment afBrmed.
OoTTSTs «=i394<7)— Bbbob to Statk Coobt
— Decision of E^dbeai. Qdestion —
RiOHTS AeSEBTED UNDEB FEDESai, EjAWS
— COHTROLLIBQ EFTICT OF DECISION,
reservation were subject to condemnation
fcy a water company is reviewable In the
Federal Supreme Court, where the opinion
of tte state court shows that U. S. Rev.
Stat, gg 2276, 2276, giving tbe right to
select other lands in lieu of school sections,
rrere considered, and that Immunity from
condemnation under them upon the ground
that the lands in equity belong to the Unit-
ed States was asserted by the state and
dsnied, and where the controlling affect of
the Federal statutes was conceded bj the
stat« court, and necessarUy follows from
the nature of the rights with which thev
deal.
TOa. Note.-ror dUmt o
off. 1 WBS.]
Public Lands ^=53— School S
Waiter ht Statr— Lma Lands.
2. A state was authorized to waive Ita '
right to a school section which was in-
cluded In a forest reservation proclaimed
after survey, i. e^ after title had vested in
tbe state, by tha provisions of U. 8. Rev.
Stat. § 2276, as amended by the act of Feb-
ruary 28, 1891 (26 Stat, at L. 707. chap.
384, Cotap. SUt. 1B13, | 4860), which,
after giving the right to select lands in
lieu of such school sections as were settled
upon with a view of pre-emption or home-
stead, and the same right where such school
sections are mineral or are included in an
Indian, military, or other reservation, or
are otherwise disposed of by tha United
States, adds a proviso that where any state
is entitled to said school sections, or where
said sections are reserved to any territory,
notwittistanding the same may be mineral
land or embraced within an Indian or other
reservation, the selection of such lands in
lieu thereof by said state or territory shall
be a waiver of its right to said aectiona.
[Bd. Kate.— For otbar casea, ••• Pafalle I^ads,
Caot. DlB. H 1U-14SJ
(No. 1
9.J
JN ERROR to the Supreme Court of the
State of California to review a judg-
ment which affirmed a judgment of the Su-
perior Court for the County of Mono, in
Uiat state. In favor of a water company in
proceedings by it to condemn certain echool
sections within a foreat reservation. Ro-
versed and remanded for further proceed-
See same case below, 167 Cal. 147, 138
Fac. S81.
The facts are stated in the opinion.
Mr. John T. Nonrse and Mr. U. S.
Webb, Attorney General of California, tor
plaintiff in error.
Messrs. Oliarles P. Coneanl and A. H.
Riokets for defendant in error.
Messrs. Charles D. MahafQe, C. Edward
Wright, and Oscar W. l«nge aa amiei
* Mr. Justice Day delivered the opinion of*
the court;
The Deseret Water, Oil, & Irrigation
Company brought a proceeding In condem-
nation in the superior court of Mono coun-
ty, California, against the state if Cali-
fornia, to appropriate by rl^t of eminent
dcanaJn certain lands in that itate^ for tha
M MM sama tople ft KBT-NUVBER In all Ker-M
A^^OOglC
1916.
CALIFORNIA t. DESEBET WATER, OII^ k ntRIGA. 00.
pnrpoM of preserving and m&intalning
water rigbta, •quipping and operating
canalB, «tc., to b« Uied in iuppl^lng wster
and power to minei, fanning neighborhood!,
cities, and towns ajid villagea, and to cor-
porations and individiiali, drtuning, reclaim-
ing, and irrigating lands, equipping, opsrat-
- ing, and maintaining ditches, reservoirs,
ete^ and for the operation and maintenance
of pnmps and pumping plants, electrical
lighting and powar plants, and electrio and
power lines.
The Tight to make such appropriation
was sustained In the superior court, but
upon appeal this judgment was reversed by
the district court of appeal for the tbird
appellate district. Thereupon, upon motion
to the supreme court of Californis, the
canse was transferred to that court for
bearing and decision, and, upon considera-
tion, the judgment of the superior court
was affirmed. 167 Cal. 147, 138 Pac. 981.
The supreme court held that the lands be-
longed to the state, and that bj certain
statutes of the state it had l)een provided
that, notwithRtanding the ownership of the
state, the lands miglit be appropriated to a
public use such as the Water Companj- was
lawfully proposing to make of them, and
that as to such matters the state had con-
sented to be sued in tjie same manner as
any private proprietor might be. A writ
of error brings the case to this court.
Tlie land in question is a sixteenth sec-
tion, passing to the state by virtue of the
Federal grant for achool purposes (Act of
1863, 10 Stat, at L. 244, eliap. 143) Act of
leee, 14 Stat. at L. sis, chap. 219, Comp.
etat. 1D18, S 4878). Afterward, a national
reservatitm, known as the Mono Forest
^Reserve, was established by proclamation
7ot the Preeident. *Thia reservation included
this section IS within Its boundarisa.
It was shown at the trial that the lands
in question were withdrawn from sale by
the state by an act of the legislature, and
It wae contended they could only be used
as bases for lieu selections. The surveyor-
general of the state offered the lands as
bases tor such selections, except 40 acres,
for which the state had sold an indemnity
certificate entitling the purchaser to sur-
render that land, and apply for unappro-
priated public land in lieu thereof. All the
remainder had been offered for lieu selec-
tions, which ara pending In the Qoieral
Xdnd Office.
The supreme court of California held that
the title to the lands was completely vested
in the state, and subject to condemnation
»t the instance of the Water Company.
A motion to diimias for want of jurisdic-
tion has been submitted. Aa we shall have I
oeoasion to see In the further discussion of
the case, its disposition depended upon the
construction of statutes of the United
States, and the opinion of the state court
shows that these statutes were considered
and Federal rights asserted under them
denied. Nor can we agree that there was
a local ground of decision broad enough to
sustain the judgment of the state court
independently of the oonstmctlon and effect
given to the Federal statute. The control-
ling effect of the Federal statutes Is conceded
in the opinion of the state court, and must
necessarily follow In view of the nature of
the rights dealt with. In this situation
this court has jurisdiction. Mtedreich v.
Lfluenstein, 232 U. S. 236, 242. 58 L. ed.
RB4, GB9, Si Sup. Ct. Eep. 309; Korth
Carolina E. Co. v. Zachary, 232 U. S. 248,
267, 68 L. ed. 591, S96, 34 Sup. Ct. Kep.
SOS, Ann. Cas. 1914C, 169, 9 N. C. C. A.
lOB; Rogers v. Hennepin County, 240 U.
8. 194. 188, SO L, sd. 694, 097, 36 Sup. CL
Rep. 265.
The Federal statutes inrolved are S3 S275
and 2278 of the Revised Statutes of the
United States, as amended in 1891 (20 Stat.
at L. 706, 79T, chap. 384, Comp. SUt. 1913,
SS 4860, 48B1). They are found in the
margin.i ^
* A* we have already stated, the state hna?
elected hi surrender this section 16 to the
United States, asking compensation In other
lands for the same under the provisions
contained in the sections of the Federal^
statutes just referred to. It is the conteu'''
tion of liie state that, because of such^ac-*
tion, the lands in question in equity belong
to the United States, and that consequently
tliey could not be condemned for the uses
of the Water Company,
The controversy reduces Itself to the pr^
else question whether, when a forest reser-
vation, subsequently proclaimed, includes
within ite limits a school section surveyed
before the establishment of the reservation,
I "'Sec. 2276. Where settlements with a
view to pre-emption or bomestead have been,
or shall hereafter be made, before the survey
of the landa in the field, which are found to
have been made on sections sixteen or
thir^-six, those sections shall be subject to
the claims of such settlcrsi and if such seo-
tions, or either of them, have been or shall
be granted, reserved, or pledged for the use
of schools or colleges in the state or terri-
tory In which they lie, other lands of equal
acreage are hereby appropriated and grant-
ed, and may be selected by said state or
territory, In lieu of such eui may be thus
taken by pre-emption or homestead settlers.
And other lands of equal acreage are also
hereby appropriated and granted, and may
■ected by said stale or territory where
sections sixteen or thirty-six are mineral
land, or are Included within any lodlaii.
D,at,z.d-,.'^-.OOt^lC
7 SUFRKUE COUKT REPORTER.
Oct. Tnu,
the state maj, under S 2276, BevUcd Stat-
utes of the United States, u amended in
1801, waive its right to such Mctlon and
select Qther lands in lieu thereof.
The first part o( the section, giving the
right to select lands in lieu of such as were
settled upon with a view to pre-emption or
homestead, is cicarlj limited to settlements
made before aurvoj of lands in the field,
and under tlie following provision, giving
the right of selection to the state vehere the
lands are mineral or are included in an
Indian, military, or other reservation, or
are otherwise disposed of by the United
States, it well may be that, in the absence
of the proviso, the right of selection would
Mbe confined to iostances where the lands
■ were un surveyed 'when found to be mineral
or included in a reservation, and this be-
cause if the lands were unreserved and not
known to be mineral when surveyed, the
title would then vest in the state (Sherman
V. Buick, 03 U. S, 209, 23 L. ed. B49; Hey-
dunfedt V. Eancy Gold 4 S. Min. Co. 03 U.
8. 634, 23 L. ed. BOS, 13 Mor. Min. Rep.
204; United Slates v. Morrison, 240 U. S.
1D2, 204, 207, GO L. ed. 509, 606, 60B, 3B
Sup. Ct. Rep. 320), and because lieu selec-
tions are usually, although not always, per-
mitted where the right to the'place lands'
ts cut off before the time for the title to '
wise disposed of by tiie United Slates:
Provided, where any state Is entitled to said
sections sixteen and tliirty-sii, or where said
sect ion 8 arc reserved to any territory, not-
withstanding the came may he mineral land
or embraced within a military, Indian, or
other resprvaticn, the selection of such lands
in lieu thereof by said state or territory
sbail be a waiver of its right to said sec-
tions. And other lands of equal acreage are
also hereby appropriated and granted, and
may be selected by said state or territory
to compensate deneieneies for school pur-
poses, wliere sections sixteen or thirty-six
are fractional in quantity, or where one or
both are wanting by reason of the town-
ship being fractional, or from any natural
rauso whatever.' And it shall be the duty
of the Secretary of the Interior, without
awaiting the extension of the public surveys,
to ascertain and determine, by protraction
or otliei-wise. the number of townsliips that
will be included within such Indian, mili-
tary, or other reservations, and thereupon
the state or territory shall be entitled to
select indemnity lands to the extent of two
sections fur each of said townships, in lieu
of sections sixteen and thirty-six therein;
but such selections may not be made with-
in the boundaries of said reservations: Pro-
vided, however, That nothing herein con-
tained shall prevent any state or territory
from awaiting the extinguishment of any
such military, Indian, or other reservation
and the restoration of the lands therein em-
become vested. But tha proviso, which was
not originally in the statute, is an import-
ant part of It, and, according to a familiar
rule, must be given some effect It reads:
"Where any stat« is entitled to said sec-
tions sixteen and tliirty-eii, or where said
sections are reserved to ajiy territory, not-
withstanding the same may be mineral land
or embraced within a military, Indian, or
other reservation, the selection of such
lands in lieu thereof by said state or terri-
tory shall be a waiver of its right to said
sections." This language, while not as dear
as it might be, operates, as we interpret It,
to give to the state a right to waive Its
right to such lands where, as in this case,
the same are included in a forest reserva-
tion after survey, tliat is, after the title
vests in the state. Untcas this proviso rs-
fers to lands the title to which has passed
to the state, it adds nothing to the statute
and performs no office whatever. This con-
struction preserves the integrity of forest
reservations, and permits the state to ac-
quire other lands not surrounded by large
U-acIa In such reservations which are with-
drawn from settlement.
It is true that the interpretation of ths
statute has not been uniform in the Depart-
ment of the Interior, and it has been other-
wise construed in at least one of the Federal
braced to the public domain, and then tak-
ing the sections sixteen and thirty-six in
place therein; but nothing in this proviso
shall be construed as conferring any right
not now existing.
"See. 227Q. That the lands appropriated
by the preceding section shall be selected
from any unapprojiriated, surveyed public
lands, not mineral in character, within the
state or territory where such losses or de-
fieieneies of school sections occur; and whers
the selections are to compensate for ds-
fleiencies of school lands in fractional town-
ships, such selections shall be made in ac-
cordance with the following principles of
adjustment, to wit: For each townsoip, or
fractional township, containing a greater
al township, containing a greater quantity
of land than one half, and not more than
three quarters of a township, three quarters
of a section; for a fractional township, con-
taining a greater quantity of land than one
quarter, and not more than one half of »
township, one-half section; and for a frac-
tional township containing a greater quan-
tity of land than one entire section, and not
more than one quarter of a township one-
quarter section of land: Provided, That the
states or territories which are, or shall bs
entitled to both the sixteenth and thirty-
sixth sections In place, shall have the rigfit
to select double the amounts named, to com-
fiensate for deflcienciea of school land ia
ractional townshipa."
,A_.OOglC
1DI6
LEHIOH VALLEY R. CO. t UKITED STATES.
99T
conrta. Bibberd t. Slftck, (U. 8. C. G. 8.
D. Cal.) 84 Fed. 071. But tbe inUrpnta-
tloQ for which the stkte iniista has hMo
long given to tt by the Int^or Departmant.
Sit wae more than enggeated in Qrrgg
rColorado, 15 Land Dec. 101, 104, and Hiee
T. California, 24 Land Dec 14, 16, wai
adopted upon full conslderfttioa In Re Call-
fomla, 2B Land Dee. 67, and hae been uni-
formly followed ever lince. Re New Mexico,
Sg Land Dec. 304; Re School Land Opinion,
30 Lund Dec. 43S; Dunn t. California, SO
I«nd Dec. 608; Re New Mexico, 34 Land
Deo. 599; Re California, 34 I^nd Dec B13.
In the brief presented by leave of court
on behalf of the United SUtea it !■ eet forth
that the rule laid down in Re California,
28 Land Dec. supra, la atlU adhered to hj
the Land Department; that lelectiona aggre-
gating man; thousands of acres have been
made in reliance upon it, and that no doubt
large espendituree of money have been made
in good faith upon the selected lands. It
ia therefore urged that such construction
baa become a rule of property. In this
situation we should be slow to disturb a
mling of the department of the goTemment
to which is committed the administration
of public lands. McMichael v. Murphy, IDT
V. S. 304, 40 L ed. TS6, 26 Sup. Ct. Bep.
460.
Furthermore, the reasoning upon which
the departmental interpretation is founded
eommrads itself to our judgment as best
calculated to carry out the purposes intend-
ed to be accomplished by the statute in ques-
tion.
It follows that the Supreme Court of Cali-
fornia erred in its dectsion of the Fedtfal
queation Involved. With the state ques-
Uons we have no concern, their ultimate
solution being a matter for that court. The
judgment is reversed and the cause remand-
ed to that court for further proceedings not
inconsittent with tbia opinion.
Beversed-
I2a u. & 4U)
LEHIGH VALLEY RAILROAD COM-
PANY, Appt.,
CoMMEBCE 4=»96— Oedbrs of CojrMisBion
— Injunction— Negative Actios.
A court of equity is without juris-
diction to enjoin the enforcement of an or-
der of the Interstate Commerce Commission
refusing, on the ground of real or possible
competition, to grant an extension of time
for compliance with the provisions of the
Panama Canal Act of August 24, 1012 (37
8Ut. at L. sue, chap. 300, Comp. Stat. IB13,
9 8007), ; II, which prohibited after July
1, 1014, any ownership by a railroad Ln an
common carrier by water when the rail-
road might compete tor traffic with the
water carrier, ana empowered the Commia-
sion to determine questions of fact as to
such competition, and to extend Uie time
if the extension would not exclude or re-
duce competition on the water route, since
the order of the Commission was negative
in substance as well as form, and the rtak
to which the railway company waa left sub-
ject did not come from the order, but from
the statute.
lEd. Note.— For other cans.
Cent. DIk. 1 1«.]
[No. 733.]
APPEAL from the District Court of the
United States for the Eastern District
of Pennsylvania to review a decree dismiss-
ing the bill Id a suit to enjoin the enforca-
ment of an order of the Interstate Com-
merce Commission retuaing to grant an ex-
tenaion of time for compliance with the
provisions of the Panama Canal Act, pro-
hibiting any ownerahip by a railroad in any
common carrier by water when the rail-
road might compete for traffic with the
water carrier. Affirmed.
See same case betow, 234 Fed. 862.
The facta are stated in the opinion.
Messrs. Richard W. Barrett. John G.
Johnson, and Edgajr H. Boles for appelUnt.
Mr. Blackbnrn Eaterllne and Solicitor
General DavU tor the United State*.
Mr. Joseph W. Folk for the Interstata
Commerce Commission.
Mr. Justice Holmes delivered the opinion
of the court:
This it a bin to i^event the enforcement
of an order of the Interstate Commerce
Commission. On December 2, 1913, the
Commission issued a circular calling atten-n
tion*to the tact that the Act of August 24,7
1012 (chap. 300, g 11, 37 BUt. at L. 000,
566, Comp. SUt. 1013, gg 10,037. B,56T},
known as the Panama Canal Act, prohibit-
ed, after July 1, 1014, any ownership by a
railroad in any common carrier by water
when the railroad might compete for traffic
'th the water carrier; and that the Com-
isaion was authorized to determine ques-
>nl of fact as to such competition, and to
extend the time beyond July 1, 1014, if the
extension would not exclude or reduce com-
petition on the water route Notice was
given that applications for extension of
time should be filed by March 1, 1914.
Thereupon, In January, 1914, the appellant
filed a petition praying for a hearing m
r-NUUBIIB In an K*r-Nambsr«d Dlceata * ladn
.A^^OOglC
S7 BUFBEUS COURT REPORTER.
Ooi. Tebh,
to whatlier the MrricM of « «te«iiiboftt line
uwned by it would be in noUtion of the
■bore lection and for ui exteniion of time.
It la tlie order iwned upon thU petition
mgalnat wliieh relief ia aought.
Tta fecte otiier than the question whether
they warrant the coaclaaion that the rail-
road and the ateamboat line do or may com*
pete ara not disputed, ^e railroad ax-
tende from Jersey City to Buffalo, and
there connects with the line of the Lehigh
Valley Transportation Company, which
runs Tcssela between Buffalo and Chicago
and Milwaukee. He railroad company
owns all the itock of tbe Transportati
Company, but, with the exception of the
ioterchange port of Buffalo, serves no point
in common with the boats ol the latter. It
is, however, a party to certain fast-freight-
Hne arrangements and all-rail routes and
joint rates to the ports lerred by its
aeb. The effect of these connections and
of the railroad's membership of the I«ke
Lines Association was held by the Commia-
slon to put the railroad in a position Inimi-
cal to the beat interests of the boat line, to
deprive the latter of Its initial rate-making
power, and to determine by outside author-
ity whether freight ahall move by all rail
or by lake and rul routes, and if by the
flatter, by which lake line. It was held
"jthat, by virtue of these arrangements, the
■ railroad'did or might compete with ita boat
line, and upon that decision the petition of
the appellant was dismissed. 33 Inters.
Com. Rep. 699, 706, 716; 87 Inters. Com.
Rep. 77.
Three judges sitting In the district court
denied the injunction asked and dismissed
the biU. EM Fed. 682. Altfaont;h th^
proceeded to discuss the merits of the oaw,
they intimated at the outset a strong doubt
whether, in any evoit, an InjunotioD could
be granted. If this doubt was well found,
ed, there is nothing more to be said, since
the ground of jurisdiction is gone. We as-
sume that the queetlon whether the facts
found by the Commission present a case of
real or possible oompetltion within the
meaning of the statute is a qneatlon of law
that could not be conclusively answered by
the CommieBion; but still there ia nothing
for a court of equity to enjoin if all that
the Commission has done is to decline to
extend the time during which the railroad
can keep its boat line without risk.
The order of the Commission was nega-
tive in substance as well as in fomi. Froe.-
ter & G. Co. v. United SUtea. 225 U. S. 282,
292, 293, se L. ed. 1091, 109G, 32 Sup. Ct.
Bep. 761. The risk to which the railroad
was left subject did not come from the
order, but from the above-mentioned section
of the Panama Canal Act (amending | 6
of the Act to Regulate Commerce [2i Stat.
at L. 380, chap. 104, Comp. Stat. 1013, |
8GS7]), making each day of violation ft
separata offense, and the proviaion of the
latter act, % 10, whieh imposes a possibly
large fine. This risk is the same that it
wsa before the order, or that it would have
been if appellant had not applied to the
Commission, except so far as tbe findings
establish facts that we believe there is do
desire to dispute. Without going further
it appears to ns plain that the decree of
the Dlatriet Court, dismiaaing the bill. ««a
right.
Deeras afflnued.
>v Google
FOLLOWING AUE MEMORANDA
CASES DISPOSED OF AT OOIOBEB TEEM, 1916,
t VLSIVHSBI OH OTHH&iriSa
Kx parhc: Ik tux Mattib or Saicdbl
WiNTMKB, Petitioner. [No. — , Origino).^
Motion for leave to fll« Petition for Writ
Hr. HftTold Bemington for petitioner.
No appearance for Teepondent.
Uarch 6, 1617. Denied.
March 0, 1917. I>enied.
DBTBon Rock Salt CoicPAirr, Petitioner,
T. Swut t CouPAin. [No. 88B,]
Petition for a Writ of Certiorari to tho
United States Circuit Court of Appeals for
tlie Sixth Circuit.
MessTS. John B. CorliH and Paul B.
Mood7 for petitioner.
Mr, William L, Cu-pentar for reapondeat.
March 6, 1917. Denied.
A. 5. CoHiT, Petitioner, r. B. A. Malon^
Trustee, etc [No. 852.]
Petition for Writ of Certiorari to the
United States Circuit Court of Appeals for
the Fifth Circuit.
Mr. George S. Jone* for petltii
MesHTH. Alexander Akerman, Charles
Akennan, and John D. Pope for respond-
•nt.
Samuei. C. Cohew, as Trustee, eto„ Peti-
tioner, T. EuAB W. Saucklb. [No. 856.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
ths Second Circuit.
Mr. Lawrence B. Cohen for petitioner
Messrs. Irving I* Ernst and Samuel
Bturts for respondent.
March 6, 191T. Denied.
Uu. M. S. jKNniHOS et al.. Petitioners, t.
L. P. SKfTH. [No. 868.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Fifth Circuit.
Messrs. Edgar T. Braekett and John J.
Strickland for petitioners.
Messrs. S. H. Siblej, Aler. C. King, H.
M. Holden, Hamilton McWhorter, and E.
9. Noel for respondent.
March e, 1917. Denied.
Washinotoh Loan i
Trattee, Petitioner, i
[No. 877.]
Petition for a Writ ot Certiorari to the
Court of Appeals ot the District of Colum*
bla.
Messrs. Daniel W. O'Donoghue, Arthur A.
Alexander, William C. Woodward, and
Charles H. Merillat for petitioner.
No appearance for respondent.
March e, 1917. Denied.
Sauuel B. Chaubebuh, etc. Petitioner, t.
John B. Molunos. [No. 881.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Second Circuit.
Messrs. William J. Larkln, Jr., and
Paul A. Blair for petitioner.
Mr. Lawrence L. Lewie for respondent.
March 6, 1917, Denied,
Hdoh O. Maovoixiak, Petitioner, t. Pbksi-
DKNT SUSPEfBBB CoUPAmT. [No. 8B8.]
Petition for a Writ of Certiorari to tha
United States Circuit Court of Appeals for
the Second Circuit.
Mr. W. P. Preble for petitioner.
Mr. Odin Boberts for respondent
March e, 1017. Denied.
,A.iOOgle
400
87 SUPREME COURT REPORTER.
Jacob B. Hatdht, Petitioner, ▼. Blle
Datib et al. [No. B89.]
Petition for «, Writ of CertlorBri to Uie
United States Circuit Court of Appeals for
the Fourth Circuit.
Messrs. H. F. Stambaugh and John M.
Freeman for petitioner.
Messrs. Charles McCamie, James Morgan
Clarke, Melvin G. Bperry, and George M.
Hoffheimer for rcspondcnta.
Uarch e, lOIT. Denied.
Gehisal Elboibio Coiifaht, Petitioner,
Nkw Yobk Cektkai. k HunsoH Riv£b
Railboas Compact. [No. 914.]
Petition for a Writ of Certiorari to thi
Supreme Court of the State of New York.
Mr. Richmond Moot for petitioner.
Ur. William L. ViBscher for respondent.
Uareh 0, 1017. Denied.
R. 8. Howard Compaki, Petitioner, v. Bald-
wm CoHFAnx. [Ko. Old.]
Petition for a writ of Certiorari to the
United States Cireuit Court of Appeals for
the Second Circuit.
Ur. Samuel S. Watson for petitioner.
Messrs. Lawrence Maxwell, Edmund Wet-
more, Oscar W. JeSery, and John E. Cross
for respondent.
Maxch 6, 1017. Denied.
MEXICO- WTouraa Psfroleuu Coupant et
al., Petitioners^ t. W. L. Valbntini et
al. [Ko. 917.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Eighth Circuit.
Ur. Henrj E. Lutz for petitioners.
Ur. William S. Metz for respondents.
March 6, 1917. Denied.
Eliot A. na Pass et al.. Appellants, t.
United States. [Ko. 23.]
Appeal from the Court of Claims.
Messrs. Henrr M. Ward and Henry W.
Van Dyke for appellants.
Mr. Assistant Attorney General Warren
for appellee.
March 8, 1017. Per Curiam: Judgment
affirmed upon the authority of; Dooley v.
United Statefi. 182 U. S. 222, 4S L. ed. 1074,
21 Sup. Ct. Rep. 76Z; Armstrong y. United
States. 182 U. S. 243, 45 L. ed. 1086, 21
Sup. Ct. Rep. 827) Fourteen Diamond Rings
T. United SUtes. 383 U. S. 178, 48 L. ed,
138, 22 Sup. Ct. Rep. 50; De Lima t. Bid-
well, 182 U. S. 1, 46 L. ed. 1041, 21 Sup.
OL Rep. 743.
BovrBXB.li SuBETT CoHFANT, PlaintlfT 1b
Error, t. Boabd of Coobtt Cohuissiok*
IBS or Oklahoma Coumtt, etc. [No.
238]
In Error to the Supreme Court of the
State of Oklahoma.
Mr. Arthur G. Uoseley for plaintiff in
Mr. Charles J. Eappler for defendant in
March 6, 1017. Per Curiam: Dismissed
for want of jurisdiction, upon the authority
of: (1) Waters-Pierce Oil Co. t. Teiaa,
212 U. S. 112, lis, 63 L. ed. 430, 434, 29
Sup. Ct. Rep. 220, 227; Konssa City South-
ern R. Co. y. Henrie, 214 U. 8. 401, 53 I*
ed. 1057, 29 Sup. Ct. Rep. 697; Appleby r.
Buffalo, 221 U. S. 524, 65 L. ed. 838, SI Sup.
Ct. Rep. 690; Manhattan L. Ins. Co. y.
Cohen, 234 U. S. 123, 134, 58 L. ed. lUa,
1254, 34 Sup. Ct. Rep. 874; (8) Consoli-
dated Tump. Co. V. Norfolk ft 0. V. R. Co.
228 U. S. S06, 800, 57 L. ed. 082. 033, 33
Sup. Ct. Rep. 600; Deming y. Carlisle Pack-
ing Co. 228 U. S. 102, 105, 57 L. ed. 140,
142, 33 Sup, Ct. Rep. 80; Stewart v. Kan-
sas City, 239 U. 8. 14, 60 L. ed. 120, 36 Sup.
Ct Rep. 16.
Chesafeakk ft Ohio Railwaz Coufant,
Plaintiff in Error, t. JoBn B. 8baw.
[No, 454.]
In Error to the Court of Appeais of the
State of Kentucky.
Messrs. E. L. Worthington, W, D, Coch-
ran, and Lewright Browning for plaintiff in
Mr. Allan D, Cote for defendant in error.
March 6, 1917. Per Curiam: Judgment
alarmed with costs upon the authority of
Chicago Junction R. Co. t. King, 222 U. 8.
222, 58 L. ed, 173, 32 Sup. Ct. Rep. 70;
Seaboard Air Line R. Co. v. Padgett, 236 U.
S. 608, 59 L. ed. 777, 35 Sup. Ct. Rep. 481 j
Louiarille ft N. R. Co. y. Parker, 242 U. 8.
14, 61 L. ed. 119, 37 Sup. Ot. Rep, 4; Balti-
& O. R, Co. y. WhiUere, 242 U. S. 160,
61 U ed. 228, 37 Sup. Ct. Rep. 33.
Timothy Healt, Petitioner, y. Saucel W.
Backus, as CommisBioner of Immigra-
tion at the Port of San Francisco. [No.
Z72.]
On Writ of Certiorari to United States
Circuit Court of Appeals for the Ninth Cir-
Woodworth for petl-
Mr. Marshall :
Mr. Solicitor General Dayis for reapond-
March 6, 1017. Decree rerersed with
costs upon confesaion of error, and causa
remanded for further proceedings, on no-
tion of counsel for the respondoit.
,A_^OOglC
IBU.
USHORAMDA CASES.
EsuKi P. Uaxshau, Petitioner, t. Sam-
uel W. Bacbub, CommiieioDer of Immi-
^tktion at the Port of San FnmcUco.
fNo. 803.]
On Writ of Certiorari to the United
SUtcB Circuit Court of Appeals for the
Ninth Circuit
Hr. Benr; Acb for petitioner.
Mr. Solicitor General Davi* for rcspond-
•nt.
Haroh fl, 1017. Decree reversed with
coit* upon confenlon of error, and oauie re-
manded for farther proceedings on UOtloQ
of couuael for the
UissoiTBi Pacific Railwat Coufaht,
Plaintiff in Error, t. J. F. Duosan. [No.
233.]
In Error to the Supreme Court of tiie
State of Kanias.
Mewra. B. P. Waggener, W. P. Waggener,
«nd A. E. Crane for plaintiff in error.
Ur. E. O. Brandenburg for defendant in
March 0, 1S17. Diamiased with coete, on
notion of counsel for tlie plaintiff in error.
DuiTOAir L. Thompboit, Auditor of Public
Accounts of the State of Uiesissippi, et
a1., Appellants, t. Mobile t Ohio Raii.-
KOAD Co»iP4tir. [No. 237]
Appeal from the District Court of the
United State* for the Southern Diatrict of
MiuiBSippi.
Messrs. William H. Watkins and James
N. Flowers tor appellants.
Messra. S. R. Prince and Oarl Fox for
motion of counsel for the appellants.
DuHCAK L. Thompson, Auditor of Publio
Accounts of the State of MlsBlsaippi, et
al. , AppeUants, r. SoiiTRisit Railwat
GoMFANT iR Mississippi. [No. 258.]
Appeal from the District Court of the
United States for the Southern District of
Uiesissippi.
Messrs. William H. Watkins and James N.
Flowers for appellants.
MesBTS. S, E. Prince and Carl Fox for
appellen.
March 6, 1917. Dismissed with costs, on
notion of oonnsel for the appellants.
37 S. C— 28.
401
LoAiT & ExcnAifOB Bare or
(^BENWOOD et al.. Plaintiffs in Error, t.
AsoifUDS W. Joms et al.. Constituting
the South Carolina Tax Commission, et
al. (No. 34Q.]
In Error to the Supreme Court of the
State of South Carotins.
Mr. F. B. Grier for plaintiffs in error.
No appearance for defendants in error.
March 0, 1017. Dismissed with costs, on
motion of counsel for the plaintiffs in error.
People's Nationai, Bank of Gbeehtill^
South CaroUna, Plaintiff in Error, t. A.
W. JoNBB et al.. Commissioners, etc
[No. 350.]
In Error to the Supreme Court of tho
State of South Carolina.
Mr. P. B. Grisr (or plaintiff in error.
No appearance for d^endants in error.
March 6, 1B17. Dismissed with costs, on
motion of counsel for the plaintiff in error.
LomSTtufl ft Nabhtilix Ratlroas Com*
PANT, Plaintiff in Error, v. GBEEKSBOa
DlBTIUJNC COICPAKY. [No. 602.]
In Error to the Court of Appeals of the
State of Eentuckj'.
Mr. Charles H. Moorman for plaintiff in
No counsel appeared for defendant in
March 8, 1617. Dismissed with costs, oa
motion of counsel for the plaintiff in error.
Nashville, Chaitanoooa, & St. Loots
RAILVar, Plaintiff In Error, v. TOT
Be:<bt. [No. 466.]
In Error to the Court of Appeals of the
State of Kentucky.
Messrs. D. E. Hughes and Charles S.
Wheeler for plaintiff in error.
Mr. Samuel A. Anderson for defendant In
March 12, 1917. Per Curiam: Judgment
affirmed with costs and 5 per cent damages,
upon the authority of Chicago Junction K.
Co. T. King, 222 U. B. 222, 68 L. ed. 173, 32
Sup. Ct Rep. 7B; Seaboard Air Line R. Co.
T. Padgett, 236 U. S. 668, 68 L. ed. 777, 3S
Sup. Ct Rep. 481; Baltimore A 0. R. Co. v.
Whitacre, 242 U. 8. 189. 61 L. ed. 228, 87
Sup, Ct, Rep. 33.
A^iOOglC
402
ST 8UPREUE COURT REPOKTXB.
Oct. Tmic,
Nashville, Chattaroooa, k St. Louis
Railwat, Plaintiff in Error, t. Qvobm
Banks. [No. 467.]
In Error to the Court of Appe&la of the
State of Kentucky.
MesBTs. D. E. Hughes and Chnxlea K.
Wheeler tor plaintiff in error.
Ur. gunuel A. Anderaou for defendant in
March 12, 1SI7. Per Curiam: Judgment
affirmed wiUi coats and 6 per cent dam-
ages, upon the authority of Chicago Junc-
tion R. Co. V. King, 222 U. 8. 222, 59 L.
ed. 173, 32 Sup. Ct. Hep. TDi Seaboard Air
Une R. Co. v. Padgett, 236 U. S. 608, SB
L. ed. 777, 3& Sup. Ct Rep. 481; Baltimore
4 0. R, Co. T. Whitacwt, 242 U. a 169, 81
L. ed. 228. 37 Sup. Ot Rep. S3.
R&UQN Paotob DiAY, FlaintifT In Error, t.
Pboplb of Pobto Rico [No. 381] ; and
Luis Abixla and Pedro Q. Goloo, Platn-
tiffa in Error, v. Peoflk ot Pobto Rioo
[No. 3821-
In Error to th« Supreme Court of Porto
March 12, 1917. Per Curiam: DlsmlHed
for want of jurisdiction, upon the authorltj
of: (1) Montana ex rel. Baire t. Riee, 204
U. S. 291, 51 L. ed. 480, 2T Sup. Ct Rep.
281; Thomas v. Iowa, 209 U. S. 258, 52 L.
ed. 782, 28 Sup. Ct. Rep. 487; Mailer* t.
Commercial Loan ft T. Co. 216 U. B. 613, 64
L. ed. 638, SO Sup. Ct. Rep. 438; Apidebj
T. Buffalo, 221 U. S. 624, 629, 6S h. ed.
838, 840, 31 Sup. a. Rep. SOS; (2) Deming
r. Carliele Packing Co. 226 U. 8. 102, 106,
ST L. ed. 140, 142, 33 Sup. Ct Rep. 80;
Overton t. Oklahoma, 236 U. S, 31, GO L.
•d. 112, 35 Sup. Ct Rep. 14; Stewart v.
Kansas City, 239 U. S. 14. 60 L ed. 120,
S6 Sup. Ct Rep. IB.
Ex PASTE: IW THB MATm OF Pabbis
Princb, Petitioner. [No. — , Original.]
Motion for leave io die petition for Writ
of Mandamus.
Mr. George E. Sullivan for petiUoner.
No appearance for respondent.
March 12, 1917. Denied.
Tsmonojts B. Roseit et al.. Petitioners, t.
UnrrED Statkb. [No. 868.]
Petition for Writ of Certiorari to the
United States Circuit Court of Appeals for
the Second Circuit.
Mr. Meier Bteinbrinic for peUtioner*.
Mr. Solicitor General Davis and Ur.
Aaaiatant Attomej General Wallace for n-
spondent.
March 12, lOlT. Granted.
WiLLiAv CftAUP ft Soira Ship ft ENoim
Boiu>iN« CoupAHT, Petitioner, v. Iettk^
NATIONAL Gums Maukx TiOBBim Cou-
PAirr et aL [No. 919.]
Petition for Writ of CerUorari to the
United States Circuit Court of Appeals for
the Third Circuit
Messri. Clifton V. Edwards and Abraham
M. Beitler for petitioner.
Messra Charles Neave and WUliam Q,
McKnight for respondents.
March 12, 1917. Granted.
NoBTH Gebuait laato. Claimant of ths
Steamship Kronprinzeesin Cecilie, Peti-
tioner, V. QnABANTT Tbust Cdmpabt ot
New Yobk et al. [No. 922.]
Petition for Writ of Certiorari to the
United State* Circuit Court of Appeals
for the First Circuit
Messrs. Walter C. Nojes and Joseph
liarocque tor petitioner.
Messrs. John A. Garver, J. Parker Elr-
lin, Charles R. Hickoz, Edward E. Bhidgttt,
and James U. Beck for respondenta,
March 12, ISIT. Granted.
Pkaiku Oil ft Oas Coufaiit et al.. Plain-
tiffs in Error, t. Annie CASnot. [No.
840.]
Petition for Writ of Certiorari to the
Supreme Court of the State of Oklahoma.
Messrs. Joseph W. Bailej, George S. Bam-
aej, and Ylllard Martin for plaintiffs la
Ur. B. W. Hayes for defendant in error.
March 12, 1B17. Denied.
Cbaxlbs Jebouc Edwabds, Petitioner, T.
Hetibi p. Keith, a* Collector of Internal
Revenue, eto. [No. 866.]
Petition for Writ of Certiorari to the
United States Circuit Court of Appeals tor
the Second Circuit.
Mr. Meier Steinbrink for petitioner.
Mr. Solicitor General Davis and Ur.
Assistant Attorney General Wallace for n-
ipoudent
Uarch IE, 1917. Denied.
Thouas R Shesidak, Petitioner, ▼. UiRIBi
States. [No. 873.]
Petition for Writ of Certiorari to the
United States Circuit Court of Appeals (or
the Ninth Circuit.
Mr. John L. UcNab for petitioner.
Mr. Solicitor General Davis for rMp«ad*
Uardi 12, 1017. Denied.
L'.atiz.dbyGoOgle
IBIS.
MEUOBASDA CASES.
J. H. Hnnoolf et al., PttiUonuv, t. T. B.
SloBn et al. pHa. 8B1.]
PvtEtion lor Writ of CctUotmI to tha
United Stat«a Circuit Conrt of Appeala for
the Fifth Circuit
MoHTB. Ban B. Cain and Cons Johnson
for petHiontra.
No AppaaiuDcc for ra^ondant.
Mareh 12, 1917. Denied.
R. B. SiMFBOiT, as Truitee, etc, at al.. Peti-
tioner*, T. Thoicas W. Bbbht et aL [Not
892. ;i
Fatitloo for Writ of Certiorari t« tlia
United States Cirentt Court of Af^Mala for
the Fifth Circuit.
Mr. William H. Wataon for petiUoners.
Heaira. A. C. Blonnt, W. A. Blount, and
V, B. Carter for reapondento.
March IS, 1817. Denied.
P. W. WiujAiEB, Petitioner, t. Horn In-
BTiRAsoK CoiCPANT or New Toik. [No.
920.]
Petition (or Writ of Certiorari to the
United States Circuit Court of Appeals for
the Fifth Circuit.
Ur. Alexander C. Birch for petitioner.
iir. B. P. Crnm (or respondent.
March 12, 1917. Denied.
Abtbdi a. Boitvili.ui(, Petitioner, ▼. H.
B. Hovnoi, TrUBtee, etc. [No. 903.]
Petition (or a Writ o( Certiorari to the
United States Circuit Court o( Appeal! (or
the Fi(th Circuit.
Mr. H. Oeneres I>u(our (or petitioner.
Mr. B. A. O'SullIvan for respondent.
March 12, 1917. Granted.
PuiTonoo Massau Zataslu, PlabtifT In
Error, ▼. EMAiraxLA NoruBAsnxA. [No
226.]
In Error to the Supreme Court ot the
State of Louisiana
Messrs. Henry Lk Lazarus, David Seaaler,
and Haunis I^ylor (or pIidntifT in error.
Messrs. W. B. Spencer and Charlea Payne
Feaner (or defendant in error,
March 19, 1917. Per Curiam: Dismiseed
for want of jurisdiction, upon the anthoritj
of Enstis r. Holies, ISO U. 5. 361, 37 L^ ed.
nil, 1* Sup. a. Hep. ISl; Leatlie t.
Thomas, 207 U. 8. 93, 62 L. ed. 118, 28 Sup.
Ct. Rep. 30; Qaar, S. ft Co. v. Shannon, 223
U. 8. 468, 60 U ed. 610, 32 Sup. Ct. Bep.
2S«: Eolden Land k Live Stock Co. t. Inter-
state Trading Co. 233 U. 8. 636, 641, 68
L. ed. 10S3, lose, 34 Snp. Ct Rep. OSl;
Mellon Co. t. MeCBflrerty, 2S9 U. S. 1S4, M
L «d. 181, » Sup. CL Kep. 94.
E«nsur Euzbias et al., Appellants, T.
Joel V^zqn^ Momxa, as Warden of tbe
IKstrict Jail of Homacao. [No. 303.]
Appeal from the Supreme Court of Porto
Rleo.
Mr. Jackson H. Balaton for appellants.
Mr. Samuel T. Ansell for appellee.
March 19, 1917, Per Curiam: Judgement
affirmed with coata, upon the autiiority o(
Flemuter v. United States, 207 U. S. 37S,
62 L. ed. 262, 28 Sup. Ct. Rep. 129 j Gav-
leraa v. United States, 220 U. 8. 33S, 65 L.
ed. 4B9, 31 Sup. Ct Rep. 421; Mor^n v.
Devine, 237 U. 8. 632, 041, 69 L. ed. 1163,
11G6, 36 Snp. Ct. Rep. 712.
EuQEino KiuiTco, Plaintiff in Error, t.
Uinrm States. [No. B90.]
In Error to the Supreme Court at the
Philippine Islands.
Messrs. Newton W. Qilbert and H. W.
Tan Dyke (or plaintiff in error.
Mr. Assistant Attorney Oeneral Warren
for defendant in error.
March 19, 1917. Per Curiam: Judg-
ment affirmed upon the authority of Schick
T. United States, 196 U. 6. 66, 71, 72, 49
L. ed. 99, 102, 103, 24 Sup. Ot. Rep. 826,
1 Ann. Cas. ESS; Mullati t. United States,
212 U. 8. 616, 620, 63 L. ed. 632, 034, 29
Sup. Ct Rep. 330.
FiAiTK W. TiuJNOHABT, Leonard L. Barber,
and Sam A. Fenner, Appellants, t, Johk
J. RiOHABDS, Marshal of the United
States for the DIstrtot of Rhode Island.
[No. 662.]
Appeal from the District Court of the
United States for the District of Rhode I»
land.
Mr. Percy W. Gardner for appellants.
Mr. Solicitor Oeneral Davis for appellee.
March 10, 1917. Per Curiam: Dismissed
for want a( jurisdiction upon the authority
of Franklin r. United States, 21B U. S. 669,
670, 64 L. ed. 616, 619, SO Sup. Ct. Rap.
434; Brolan t. United SUtes, £36 U. 8.
216, 69 L. ed. 644, 35 Ehip. Ct. Rep. 286;
Lamar t. United States, 240 U. 8. SO, 60
L. ed. 626, 36 Sup. Ct Rep. 266.
Ex Parix: Iit the Mait^ or Eimab F.
Hathavat and Charlea Lea, Petitionera.
[No. — , Ordinal.]
Motion for leave to ille a petition for a
Writ of Mandamus harein.
Messrs. Charlea D. Laoning, William G.
Johnson, and Irving U. Townsend for p^
tit loners.
No appearanea for respondent.
March 19. 1917. Denied.
..Google
37 SUFREUE COUBT REFORTER.
Oct. Tnii,
B3S.]
Petition for Writ of Certiorari to th«
Court of Appeals of the State of Kentncky.
Meflsra. Charle* H. Qibton and Wiaiam
G. Crawford for petitioncTB.
No appearance for reapondenb
March IS, 1SI7. Granted.
IirrasBOBO Bbewing Coupaht (Ine.) Pe-
titioner, y. Standabd Bbkwsbt Computt
or Baltimobb Citt, [No. 950.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Second Circuit.
Messri. Warren H. Small and George
Ramie; far petitioner.
No appearance for respondent.
March ID, 1017. Granted.
B, J. Ltnob, Collector, etc., Petitioner, t.
Hekbt Tuitusn. [No. se4.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Eighth Circuit.
Mr. Solicitor General DstIs for petl-
Messrs. H. Oldenburg, Mewel H. Clapp,
and A. W. Clapp for respondent.
March 10, 1917. Granted.
E. J. Lttcb, Collector, etc., Petitioner, t.
H. C. HoBKBV. [No. 985.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Eighth Circuit.
Mr. Solicitor General Davb for peUtloner.
Messrs. H. Oldenburg, Newel H. CIi^p,
and A. W. Clapp for respondent.
March 19, 1917. Granted.
W. T. Hesdbickboh, Judge, etc. Petitioner,
T. iJEWis Afpersok. [No. 974.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Sixth Circuit.
Mr. Helm Bruce for petitioner.
Mr. W. Overton Harris for respondent.
March 19, 1917. GranUd.
W. T. HENDBiCESon, Judge, etc.. Petitioner,
T. Elizabktr Cbeager. [No. 975.]
Petition for a Writ of Certiorari to the
Mr. Helm Bruce for petitioner.
Mr. W. Overton Harris for respondent.
March 19, 1S17. Granted.
W. T. HrnnBioKOOir, Jndge^ Mc, PetitJcmar,
T. HiMH 8. Gaedhb. [No. 07S.]
Pstitfon for a Writ of Certiorari te the
United States Circuit Court «rf AppeaJs for
the Sixth Circuit.
Mr. Helm Brnoe tor petitioner.
Mr. W. Overton Harris for respondent.
March 1», 1917. Granted.
W. T. Hbmmicxbok, Judge, ete., Petitioner,
T. MnJ>itpi E. HooK^ [No. 97T.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Aiqiesla for
the Sixth Circuit.
Mr. Helm Bruce for petitioner.
Mr. W. Orerton Harris for respondent
March U, 1017. Granted.
W. T. Hbnimiorsor, Judge, etc., Petitioner,
T. STKBUNa 1-um k InvtsmBrr Cou-
PAjfT. [No. »7e.I
Petition for a Writ of OerUorari to the
United States Circuit Court of Af^teals for
the Sixth Circuit.
Mr. Helm Bmoe for petitioner.
Messrs. A. E. Richards and W. Orerton
Harri* for respondent.
MaKh 19, 1917. Granted.
Hbla Tait THTif et al., Fetittonen, t.
Ralph Wou, Receiver, ete. [No. 983.1
Petition for a Writ of Oerti<»arl to the
United States Circuit Court of Af^ieals for
the Second Circuit.
Messrs. Samuel P. Goldman and M. L.
Heide for petitioners.
Mr. John B. Stanehfleld for i
Mardi 19, 1917. Denied.
CLKVELANn, CiNOiNHATi, Chicaso, ft St.
Louis Railvwat Coupakt, Petitioner,
T. EnmsT H. Ohiu et al. [No. 932.]
Petition tor a Writ of Certiorari to the
United State* Circuit Court of Aj^>eai« for
the Seventh drcait
Messrs. Franlc L. Littleton and George B.
Gillespie for petitioner.
Messrs. Alexander Britton and Erana
Browne tor respondents.
March 19, 1917. Denied.
Meboenthaleb LiNDTrPB CouPAST, Peti-
tioner, V. InTEBNATIONAI. TTPESETTUia
Machine Coupart et al. [No. 933.]
Petition for a Writ of Ceriuorari to the
United States Circuit Court of AppeaJs tor
the Second Circuit.
Messrs. Frederic D. McKennej and Bob-
ert Fletcher Rogers for petitioner.
Mr. Edmund Wetmore tor reqtondmta.
March 10, 1017. Denied.
dbyGoogle
1914.
MmQENTHALa UlTOTTTB COVPAITT, 1
tioner, v. Iktxbtytx Cobpokatioh,
S34.]
Petitinn for a Writ of Certiorari ta tha
United Statn Circuit Court of Appeal! for
the Secoad Circuit
Mestrs. Frederic D. HcKennej and Bob-
ert Fletcher Rogcra for petitioner.
Ur. Edmund Wetniore for respondeat.
Uarch 19, 191T. Denied.
UEHORANDA CASES.
WiimELD S.
405
Fkitoixtoit, PetiUonar, t.
WjLBEHonsx k TkADina Coif-
PUTT et al. [No. D61.]
Petition for a Writ of Certiorari to th*
United States Circuit Court of Appeal! for
tlie Second Circuit.
Mr. Avery F. Cushmsn for petitioner.
Mr. John W. Griffin for respondenta.
March 10, 1917. Denied.
Idtxi E. Siva et al. Petitioners, t. W. H.
Stabk et al. [No. 939.]
Petition tor a Writ of CerUorari to tlie
lAiited States Circuit Court of Appeals for
the Fifth Circuit.
Mr. E. E. Townes for petitioners.
No appearance for respondents.
March 19, 1917. Denied.
Paul A. EwmT, Petitioner, t. 0. W. Bbck.
[No. 940-1
Petition for » Writ of Ceriiorari to the
United Statea Circuit Court of Appeals for
the Eighth Circuit.
Messrs. Paul A. Ewert and Henry Lewis
for petitioner.
Mr. W. H. Komegay for respondent
March ID, 1917. Denied.
Obicaoo Great Wkbtksh Eaiuoad Cou-
puiT, Petitioner, v. John ItAttmna. (No.
ec8.]
Petition for a Writ of Certiorari to the
Supreme Court of Oia State of Minnesota.
Messrs. Asa Q. Briggs and Johu Brerall
for petitioner.
Mr. Harlow B. Leach for respondent.
March 19, 191T. Dsuied.
Gkokoia Coast t Puduoht Railsoad Cdv-
PAKT, Petitioner, t, David Ldewenthu.
[No. 067.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Fifth Circuit
Messrs. Bobert M. Hitch, Samuel B.
Adams, and Henry V. Poor for petitioner.
Messrs. C Henry Cohen, Alex C. King,
Max Isaac, and Jade J. SpaJding for T»
spondent
March 10, 1017. Denied.
En) Jacktt, Jb., Coai. Coupakt et al. Pe-
titioners, T. Unim> Thaok^ Coai, Com-
PAJtr. [No. 971.]
Petition for a Writ of Cerlaorari to the
United States CIrcnit Court of Appeals for
the Fourth Circuit
Messrs, E. Spenoer Miller and John H.
Holt for petitioners.
Messrs. Malcolm Jackson and C. W.
Campbell for respondent.
March 19, 1917. Denied.
Lbc Libk arEAwms, FeUtloner, t. Atlab
TBANBPOniTIOIt COICFAHT. [No. 063.]
Petition for a Writ of Cerid«ari to the
United States Circuit Court of A|q«als for
the Eighth Circuit
Mr. John F. Green for petitioner.
Meesra George A. Mahan and Dulanj
Mahan for respondent
March 10, 1917. Denied.
AimioAiT Bank Note Cohpaht, Petition-
er, T. Blue Ruke Electbio Coupakt.
[No. 072.]
Petition for a Writ of Co^orari to the
United States Circuit Court of Appeals for
the Fifth Circuit.
Mr. Henry A. Alexander for petitioner.
Mr. BoI>ert C. Alston for respondent.
March 10, 1017. Denied.
Glaboow NATiQATion CouPAUT, Ltd., Pe-
titioner, r. MoNSon SrEAuamp Ijm.
[No. 930.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Af^teals for
the Second Circuit
Messrs. J. Parker EIrlitt and Charles
Hlckox for petitioner.
Mr. John W. Griffin for respondeat
March 19, 1017. Denied.
JORtT A. Oabdit^ Petitioner, '
Unior Teiixosapb CaofFAjrr. [No. 686.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Eighth Circuit.
Mr. Charles A. Loomis for petitioner.
Messra Bush Tbggart and Frands Ba;,
mond Stark for respondent
Ibrch 19, 1017. Denied.
dbyGoogle
4M
KOBEBT H. Okeu, Petitioner,
SrawAOT «t tl. [No. 9E6.]
Petition for a Writ of CerUorari to tlie
United States Circuit Court of Appeals for
the Sixth Circuit.
Messrs. Peeve lie wis sud Hslcolm Mc-
Avay for petitioner.
Uegsre. Oscar W. Kuhn, Alfred M. Cohen,
EoBEBT A. Wo<»e, etc. Petitioner, t. At-
LARTio CoasT Lura Railboad CouPAny.
[No. 980.]
PeUtion for a Writ of CerOorari to the
United States Circuit Court of Appeals tor
the Fourth Circuit.
Mr. W. Boyd Evans for petitioner.
No appearance for respondent.
March ]9, 1917. Denied.
J. SoHUEUOi et al., Petitioners, r. Maniron
SFxinoa Munui. Water Coupakt. [No.
987.]
Petition for a Writ of CerUorari to the
United States Circuit Court of Appeals for
the Eighth Circuit.
Mr. Charles W. Waterman for petitioners.
Mr. Balph Hartzeil for respondent.
March 19, ISIT. Denied.
Cbntbal Fobtuva, PlaintiS in Error,
PiOPLX OT PoBTo Eioo. [No. 1«7.]
In Error to the Supreme Court of Porto
Pico.
Mr. Francis E. Neagle for plaintiff in
Mr. 8. T. Ansell for defendant in error.
March 20, 1917. Dlsmiased with costs,
on motion of counsel for the plaintiff in
Geattot Coobtt Statk Baitk, Petitioner,
T. D. Lloid Johkson, as Trustee, etc.
[No. BSE.]
Petition for a Writ of Certiorari to the
Supreme Court of the State of Michigan.
Mr. William !<. Carpenter for petitioner.
Meosra. Edward J. Molnet and William
A. Bafcike for respondent.
March 20, IS17. Granted.
Mbb. W. H. Itx, etc, et al., PeUtioners, t.
FCWT WOBTH SAVnTGB BAits A Tkubt
CoUFAirr. [No. 9&4.]
Petition for a Writ of Certiorari to the
TAilted States Circuit Court of Appeals for
the Hfth Circuit.
Mr. D. T. Bomar for petitioners.
Mr. R. W. Floumoj for reapondent
March 20, 1917. Denied.
37 SUPREME COURT REPORTER.
JiTLIA O.
Oct. Tom,
SouTHUM Railwat CouFATir, Petitioner,
T. Mas. Vniira; Bdtlib. [No. 984.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Fifth Circuit.
Mr. Millard Reese for petitioner.
No appearance for respondent.
March 26, 1017. Denied.
CUBA KsLLT, Executrix, etc., Petitioner,
T. PBKKSYI.TASIA RAIUOAD CbltPAMT.
[No. 991.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Third Circuit-
Mr. John B. Brooks for petitioner.
Mr. P. D. McKenney for respondent,
March 26, 1917. Denied.
Eujon FsiDeatCK, Trustee, ete., Petitloii>
er, T. USTBOPOLITAN I^X iNaUBANCn
CoKPAiTT OF Nbw Yobk. [No. 993]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals f«
the Third Circuit.
Mr, Lounie C. Barton for petitioner.
Mr. W. K. Jennings for reapondent.
March 20, 1917. Denied.
STAnsABn Fasbioit Cokpawt, Petitioner, t.
JoHir J. KiTHir, as Trustee, etc. [No.
094.]
Petition for a Writ of CerUwari to the
United Statea Circuit Court of A[^>eals for
the Second Circuit.
Mr. Herbert Noble for petitioner.
Mr, Jacob J. Lesser for respondent.
March 26, 1917. Denied.
Natioital Cirr Bark of CHtoAOo, Petition-
er, T. Kalamazoo Cm Satinos Bank.
[No. 1006.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Sixth Circuit.
Ueasrs. F. D. MoKeuney and 3. S. Flan-
neiy for petitioner.
Mr. Dallas Boudemon for respondent.
March 20, 1017. Denied.
>v Google
UNITEO STATES t. QBASWELL.
KATHEW T. QRADWELL «t «I. (No. 883.)
UNITED STATES, PUT. in Err,
CHARLES HAMBLY et aL {No. fiS4.)
UNITED STATES, PUT- la Err,
EDWARD OrrOOLE ot ti. (No. 776.)
UNITED STATES, Plff. in Err,
EDWARD O'TOOLB et al. (No. 778.)
GoifBPtsiCT «S938— To Defsaod DHrrEn
Sr^na— B&iubbt ob lLixa.Ai. VoTino at
STATI ELICtlONS.
1. A conspiracy to bribe electori at a
congresBional election, or to cause them to
Tot« ill^Ily at a primary election for the
nomination of cindidateB for tha United
States Senate, cannot be regarded aa one
to defraud the United Btatei, within tha
neanlni of U. S. Orlm. Ood^ I 87,* pun-
iahing criminally a aonapiracjr to defraud
the United States in any manner for any
{lUrpoBc," in view ol the origin, claaaifica-
ion, and use made of thla aection, which
ma originally a part of an act for the pro-
tection of the revenue, and now appear* in
ft chapter ol the Criminal Code devoted t«
"Offeneea against the OpcraUon of the Qov-
ernment," rather than in the oliapteT whld
deala with the "OlTensee against the Eleotive
FranchiM and Civil Righta of CltiMna,"
and of the history of the conduct and policy
of the Federal government in dealing with
Mngreesional election*.
(Bd. Note.— Tor ether [«sis. sM Oonnlracr,
Cent. Dl>. I K.
For othor dsllnltloDi, Me Words end Phrase*,
VIrtt and Saoood Sari**, Oonaplracr.]
ConspiHAOT #=>S4 — AoAinn Civil
RioBTB — Ii.u:oAi. ToTTNa AT Statx
Prikakt BiATnoii — "Ihjtjb*"— "
for United State* Senator by causing illegal
voting for an opposing party candidate at a
nominating primary election cannot be laid
to "injure" or "oppie**" them in the free
axereiie or enjoyment of rigltte or privilege*
aecnred to them by the Federal Constitution
or laivB, or because of their bavinr exercised
Uie same within the meaning of U. S. Crim.
Code, I 19 (originally enacted for the pro-
tection of the civil right* of the then lately
enfranchised negro), even if, in general, a
nominating primary should be treated a* an
•lection within the meaning of the Federal
Constitution, where, by the local law under
which the primary in question wae held,
only candidates for Congress belonging to a
political party which polled 8 per cent ol
the vote of the entire state at the last pre-
ceding general election could be voted for,
and, after the nominating primary, can-
didatee, even penons who had failed at th*
primary, eould be nominated by certillcat*
■igned by not less than 6 per cent of tlie
Hidre vote polled at the laat preceding elec-
tion.
(Ed. Note.— For other eessa, **■ Oonsplraey,
Cant. Dig. 11 ei-S7.
Pot athsr dednltlons. *•• Word* and Pbiase^
First and Bocond Series, Inlure.1
ULxonoNs #=>317— State Feuubt Laws
^Adoption b< Cohobess.
3. All the primary law* of a *tate ap-
Slicable to nominations for United State*
enator were not in effect adopted by Con-
gres* by the enactment of the Corrupt Prao-
ticea Act of June 25, IQIO (36 Stat, at L.
S22, chap. 392, Comp. StaL IBIS, S 18S),
and the amendment* of August lU, IBll
<37 Stat, at L. 26, chap. 33. Comp. Stat
1B13, i 1D2), and August 23, 1912 (37
SUt. at L. 3S0, chap. 349, Comp. SUt. 1013,
I ISG), reeognitiog primaiy election* and
EkxoTioNB C=>120— <}0RaBEBBioirAi, Bnou-
UTions— NoHiNATion aud Elxotion or
SKnATOBS—STATC Pbhiabt.
4. The temporary measure enacted by
Congres* for the conduct of the nomination
and election of United Statea Senator until
other provisions should be made by state
legislation (Act of June 4, 1914, 8S SUt. at
L. 384, chap. 103) wa* auperseded by a
atate primary election law upon the effective
date of Buch law.
[Mo*. <S3, 684, 770, and 77S.]
TWO WRITS OF ERROR to the District
Court of the United States for the Dl*-
trlct of Rhode leland to review judgments
RUBt*Jning demurrer* to Indictment* diar-
ging conspiraclea to defraud the United
States by bribing voters at a congresilonal
election. Affirmed. Also
IN ERROR to the District Court of ths
United States for the Southern District
of We*t Virginia to review a judgment sna*
tuning a demurrer to an indictment d>ar-
ging a conspiracy to defraud the United
States by causing iil^al voting at a pri-
mary election for the nomination of can-
dIdHt«a for the United SUte* Senata. Af.
firmed. Also
IN ERROR to the District Court of the
United State* for the Southern District
We*t Virginia to review a judgment sna-
talnlng a demurrer to an Indictment char-
ging a conspiracy to injure or oppress can-
didates for the nomination of Senator of
the United States by causing lll^;a1 voting
for an opposing party candidate at a state
primary nominating election. Affirmed.
~ t same ease below, in No. BBS, 234 Fed.
44Q; In Nos. 77B, 778, 23S Fed. 9B3.
The facts are stated In the opinion.
Assistant Attorney Qeneral Wallace for
plaintiff in error.
Ur. Alexander Ii. ChnrclillI for defend-
ants in error in No. 883.
Messrs. Alexander L, Chnrcbill, John
W. CummlhKs, James T. Cummlnga, and
37 SUPREME COURT BEFORTER.
Oct. Tbic,
John J. Eltzger«ld for defenduita in (nor
Id No. 684.
McBsra. Jolin H. Holt uid Luther C;
Anderson for defendants In error in Not.
I.77& and 7TS.
■ *Mr. Justice Clarke delivered tbe opiiiit
of the court:
These four cases were argued to^thi
because the Indictmeuts in the first three
must be justified, if at all, under the same
Kction IS 37) of the Criminal Code of the
Unitid SUtes [35 Stat, at L. 1006, chap.
331, Comp. Stat. 1913, g 10,201], while the
fourth iuvoives the application of S 10 ol
that Code to tbe saDie state of facts which
we have in the third case.
In the Gradwell Case fSo. 683) and In
Sths Hamblj Case (No. 684) the fourteen
^defondsnta Kre cliarged in the* indictments
with having conspired together "to defraud
the United States," and to commit a wilful
fraud upon the laws of the state of Rhode
Island, bj corrupting and debauching, bj
briberj of voters, the general election held
on the 3d of November, 1914, at which a
KeprcsentatiTa In Congress was voted for
and elected in the second congreisional dis-
trict of Rhode Island in the Gradwell Case,
and in the first congreBSional district in the
Hamlly Caec, tUereb7 preventing "a fair
and clean" election.
No. 775 relates to the conduct of a pri-
mary election held in the state at West
Virginia on the 6th of June, 1016, under a
law of that state providing for a state-wide
nomination of candidates for the United
States Senate. In the indictment twenty
defendants are charged with conspiring "to
defraud the United States in the matter of
its governmental right to have a candidate
of ths true choice and preference of the Re-
publican and Democratic parties nominated
lor said ofSce and one of them elected," by
causing and procuring A large number of
persons who had not resided in the state
a sufScient length of time to entitle them
to vote under the state taw, to vote at the
primary for a candidate named, and also
to procure four hundred of such persons to
vote more than once at such primary elec-
The indictment in No. 776 charges that
the same defendants named in No. T75 con-
spired together to "injure and opprett"
White, Sutherland, and Rosenbloom, three
candidates for the Republican nomination
for United States Senator who were voted
for at the primary election held in West
Virginia on Juna Sth, 1916, under a law
of that state, by depriving them of the
"right and privilege of having each Re-
publican voter vote, and vote once only,
tor some one" of the Republican candldaua
for end) nomination, and of not having any
votea counted at such election except such,
as were cast by Republican voters duljR
qualified * under the West Virginia law.*
The charge i* that the defendants con-
spired to accomplish this result by pro-
curing a thousand persons, who were not
qualifled to vote under the state law, be-
cause they had not resided in that state a
aufficimt length of time, to vote for an
opposing candidate, William F. Hite, and
many of them to vote more than once, and
to have their votes cast, counted, and r»
turned as cast in favor of aucb candidate.
A demurrer to the indictment by each of
the defendants in each case, on the ground
that it fails to set forth any offense under
the laws of the United States, was sus-
tained by the district court of the district
of Rhode Island in tlie first two cases and
of the soutliem district of West Virginia
in the third. The cases are here on error.
It is plain from the foregoing statement
that tbe indictments in the first three cases
are based solely upon tbe charge that the
defendants conspired "to defraud tbe United
States," in violation of § 37 of tiie Crimi-
nal Code, and that the indictment in No.
T7S is based upon the charge that three
canilidatca for the nomination for Senator
of the United States were "injured and op-
pressed" within the meaning of g 19 of the
Criminal Code, by a conspiracy on the part
of the defendants to compsss their defeat
by causing illegal voting for an opposing
party candidate at the primary election.
The applicable portions of gg 37 and 19
are as follows:
"Section 37. If two or more persons coo-
spire either to commit any ofl'ense against
the United States, or to defraud tbe United
States in any manner for any purpose,
. each of the parties to such conspiracy
shall be fined not more than ten thousand
dollars, or imprisoned not more than twa
years, or both.
"Section IS, If two or more persons con-
spire to injure, oppress, threoten, or intim*
idate any citizen in the free exercise ofg
enjoyment of any right or privilege securedS
to'him by the Constitution or laws of the*
United States, or because of his having so
exercised the same, . . . they shall be
fined not more than five thousand dollar*
and Imprisoned not more than ten yean,
and eball, moreover, be thereafter ineligible
to any office, or place of honor, proBt, or
trust created by the Constitution or lawa
of tbe United States. **
The argument of counsel for plaintiff iu
Tor in the first three cases is that the
United States government has the right to
honest, free, and fair elections, that a con-
spiracy to cormpt electors by bribery haa
,A_.OOglC
isie.
UNITED STATES t. GRADWELL,
4DB
<or ita olijcet the denial and defeat of this
right, and that it therefore la a. scheme to
defi'aud the United States witliin the mean-
ing of i 37. This preseuta for deelaion the
Is g 37 of the Criminal Code applicable
to congreasionxl elections, and, If it is, '
-the United SUtes such an interest or right
in tlie result of such election! that to brllie
«lectoi'B conaLitutea a fraud upon tlie gov-
ernment wiltiin ttie meaning of this seo-
Tu admit, as it must be admitted, that
-tlie people of the United Statca, and so
their government, considered aa a political
«utity, have an interest in and a right to
honest and fair elections, advances us
little toward determining whether i 37
«nacted to protect that right, and whether
« conspiracy to bribe voters is a violatio
of it. Obviously tlie government tnaj hav
this right and jet not have enacted thi
law to protect it. It may be, as is claimed,
tliat Congress intended to rely upon state
laws and the administration of tliein by
state odiciali to secure honest elections,
that this section was enacted for purpoees
wholly apart from those here claimed for
It.
To answer the question s presented re-
quires that we look to tiie origin and liis-
tory of § 37, and tliat we coiislilcr what
has been, and is now, tlie policy of Con-
egress in dealing with the regulation of elec-
ntions of Representatives in Congress.
-• 'Section 37 first appears as g 30 of "An
Act to Amend Existing Law Relating to In-
ternal Revenue, and for Other Purposes,"
an&cted on March 2, ISGT (14 Stat, at L.
p. 471, chap, 1S9, Comp. Stat 1013, S 6806),
and, except for an omitted not relevant
provision, the section has continued from
that lime to this, in almost precisely ita
present form. It nas carried into the re-
vision of the United States Statutes of
1873-74 as § 6440 of chapter 6, the title
«f which is "Criiues against Operations of
the Government," while another chapter,
«hapteT 7 of the revision, deals with
"Crimes agninat tlie Elective Franchise and
Civil Rights of Citizens." Forty-two years
After its first enactment tlie section was
carried into the Ciiminal Code (in force
«n and after January let, 1910), where it
DOW appears ea g 37, again in a diapter,
DOW chapter 4, devoted to "OfTenBes against
the Operation of the GovernmeDt," while
chapter 3 of the Code deals with "Offenses
against th« Elective Franchise and Civil
Eights of Citizens."
The section has heen widely applied In
the prosecution of frauds upon the revenue,
in land cases, and to other operations of
the Rovernment, and while no inference or
presumption of legislative construction is
to be drawn from the chapter headings
under which it is found in the Criminal
Coda (3 33B], nevertheless the history of
the origin, elasaificntion, and use made of
the section, which we have Jnst detailed,
are not without significance, and taken with
the fact that confessedly this is the first
time that it haa been attempted to extend
its application to the conduct of elections,
tliey GUggcst strongly that it was not in*
tended by Congress for such a purpose.
Further aid in determining the applica-
tion and construction of the section may be
derived from the hietory of the conduct
and policy of the government in dealing
with congressional elect lone.
The power of Congress to deal with tha^
election of Senators and Representatives is^
derived from § 4, article ],*of the Constitu-*
tion of the United States, providing that:
"Tlie times, place* and manner of hold*
Ing elections for Senators and Representa-
tives shall he prescribed in each Btat« by
the legislature thereof; but the Congress
may at any time by law, make or alter such
regulations, except as to tlis places of choos-
ing Senators."
Wliatever doubt may at one time hava
existed as to the extent of the power which
Congress may exercise under this const)*
tutioual sanction in the prescribing of reg-
ulations for the conduct of elections for
Representatives in Congress, or In adopting
regulations which states have prescribed for
that purpose, has been settled by repeated
decisions of this court, in Ex parte Siebald,
100 U. S. 371, 391, 26 L. ed. 717, 724
(1870); Ex parU Clarlc, 100 U. S. 300, 25
L. ed. 715 (1879); Ex parte Yarbrough,
110 U. S. esi, 28 L. ed. 274, 4 Sup. Ct. Rep.
1D2 (1SS4); and in United States v. Mos-
ley, 23B U. S. 333, 69 L. ed. I3oS, 35 Sup.
Ct. Rep. 004 (1015).
AlthoiigU Congress has had this power of
regulating the conduct of congressional
elections from the organization of the gov-
ernment, our legislative liistory upon the
BUbject shows that except for about twenty-
four of the one hundred and twenty-eight
years since the government was organized,
it has been its policy to leave such regula-
tions almost entirely to the states, whose
representatives Congressmen are. For mora
than fifty years no congressional action
whatever was taken on the Bubject until
1842, when a law was enacted requiring
that Representatives be elected by districts
(6 SUt. at L. p. 401, chap. 4T), thus doing
away with the practice which had prevailed
in some states of electing on a single state
ticket all of the members of Congress to
which the state was entitled.
Then followed twenty-four years more
before further action was taken on the aub-
jeet, when Congress provided to* tha.tiiM|.:>
87 SUPBBME COURT REPORTEB.
OOT. Tmi,
uid mode of electing United St&tes Sena-
tors (14 Stat, at L. 243, chap. 245), and it
WBt not until four years later, in 1870,
Sthat, for the first time, & compTeheDEiva
JifStem for desling*with congTeseionol eleo-
tions was enacted. This Byitem was com-
prised in §§ 19-22 of ths act approved Ma;
Slst, IS70 <I« SUt. at L. p. 144, chap.
114), in S§ 6 and 0 of tlie act ai^roved
Julr 14, 1670 (1« Stat, at L. p. 264, chap.
254), and in the act amending and supple-
menting these acts, approved June 10, 1872
<17 Stat, at L. pp. 347-349, chap. 416).
These lawB provided extensive regulations
for the conduct of congressional elections.
They made unlawful false registration, brib-
ery, voting without legal right, making
fsjse returns ot votes cast, interfering in
liny manner wEth officers of election, and
the n^lect by any such officer of an^ duty
Tequired of him by state or Federal law;
they provided for appointment by circuit
Judges of the United States of persons to
attend at places of registration and at elec-
tions, with authority to challenge any per-
son proposing to register or vote unlaw-
fully, to witness the counting of votes, and
to identify by their signatures tlie regis-
tration of voters and election tally sheets )
and they made it lawful tor tiie marshals
of the United Statea to appoint special
deputies to preserve order at such elections,
with authority to arrest for any breach of
the peace committed in their view.
These laws were carried into the revision
Of the United Statea Statutes of 1873-74,
under the title, "Crimes against the Elec-
tive Franchise and Civil Rights ot CiU-'
sens," Rev. Stat. g§ 6606 to 6532, inclusive.
It will be seen from tliis statement of the
Important features of these enactmenta that
Congress by them committed to Federal
officers a very full participation in the
process of the election of Congressmen,
from the registration of voters to the final
oertifying ot the resulto, and that the con-
trol thus established over Ruch elections
was comprehensive and complete. It is a
matter of general as of legal history that
Congress, after twenty-four years of ex-
perience, returned to ita former attitude
K toward such elections, and repealed all of
• these laws with the eiception'of a few sec-
tions not relevant here. (Act approved
February 8, 18S4, 28 Btat. at L. p. 30,
chap. 25, Comp. Stat. 1913, § ]0]6.) This
repealing act left in efl'ect, as apparently
relating to the elective franchise, only the
provisions contained in the eight sections
of chapter 3 of the Criminal Code, %% 19 to
26, inclusive, which have not been added
to or substantially modified during the
twcuty-tUrec years whIcU have since elapsed.
Tht policy of thus intrusting the eon-
duct of elections to state laws, adminis-
tered by state officers, which has prevailed
from the foundation of the government to
our day, with the exception, as we bava
seen, of twenty-four years, was proposed by
the makers of tho Constitution, and waa
entered upon advisedly by the people who
adopted it, as clearly appears from the
reply of Hadison to Monroe In the debat«a
in the Virginia Convention, saying that:
"It was found impossible to fix the time^
place, and manner ot election of Represen-
tatives in the Constitution. It was found
necessary to leave the regulation of thes^
in the first place, to the stata govemmenta
as being but acquainted with the situa-
tion of the people, subject to the control of
the general government, in order to enabla
it to produce uniformity and prevent it*
own dissolution. . . Were they ex-
clusively under the control of the state gor-
ernments, the general government might
easily be dissolved. But if they be regu-
lated properly by the state legislatures th»
congressional control will probaby never
bo exercised. The power appears to ma
satisfactory, and as unlikely to be abused
as any part of the Constitution." Records
ot the Federal Convention. Farrand, vol.
3, p. 311.
And, in Essay Ko. T.TT ot the Federalist,
Hamilton writes:
"They (the oonvention) hare submitted
the regulation of elections for the Federal
government. In the first instance, to the^
local administrations; which in ordinary^
taaea, and when no Improper views prevail,*
may be both more convenient and more
satisfactory; but they have reserved to
the national authority a right to inter-
pose, whenever extraordinary circumstances
might render that interposition necessary
to its safety."
With it thus clearly established that the
policy of Congress for so great a part of
our constitutional life has been, and now
is, to leave the conduct ot the election of
its members to stata laws, administered by
stata officers, and that whenever It has as-
sumed to regulata such elections it has done
so by positive and clear ststutes, such as
were enacted in 1870, it would be a strained
and unreasonable construction to apply to
such elections this S 3T, originally a law
for the protection of the revenue, and for
now fifty years conflned in tta application
to "Offenses against the Operations ot the
Government," as distinguished from the
processes by which men ore selected to con-
duct such operations.
When to all this we add that there ore
no common-law oETenses against tlie United
,A_^OOglC
iBie.
UWlTED STATES t. GEADWBLL.
411
Statea (United SUt«a t. HudBon, T Cruich,
3i, 3 L. ed. 259; United St&tw v. Eftton,
144 U. S. 677, 3e L. ed. 681, 12 Sup. Ct.
Hep. 764), that before » man can be pus-
Uhed ai a criminal under the Federal law
bis case muet be "plaiulj and unmistak-
ablj" within the proviaiou of some statute
(United States v. Lacker, 134 L'. S. (124,
628, 33 L. ed. lOSO, 1083, 10 Bup. Ct. Rep.
6ZG], and that Congresa has alwaya under
its control the means of defeating frauds
in the election of its membere b; enacting-
appropriate legislation and bj resort to the
eonatitutional grant of power to judge of
the elections, returns, and qualificationB of
Its own members, we cannot doubt that the
district court was right in holding tliat the
section was never intended to apply to
•lections, and that to bribe voters to vote
at such an election is not such a fraud upon
the United States or upon candidates or
the laws of Rhode Island as falls within
^either the terms or purposes of the section.
Jf There remains to be considered the sec-
• ond West'Virginia case, No. 776. The in-
dictment in this case charges that the
defendants conspired to procure and did
procure a large number of persons, not legal
voters of West Virginia, to vote, and a
Dumber of them t« vote more than once,
favor of one of the four candidates for the
Republican nomination for United States
Senator at a state primsrjr. The claim Is
that such illegal voting "injured and op-
pressed" the three other party candidates,
within the meaning of | IS of the Criminal
Code of the United States, bj depriving
them of a right which It Is argued thej
had "by the Constitution and laws of the
United States," to have only qualified Re-
publican voters of the state vote, not more
than once, for some one of the candidate*
of Uiat partj for Senator at such election.
Here again, confessedlj, an attempt is be-
ing made to make a new application of an
old law to an old tjfpe of crime; for | 10
has been In force, in substance, since 1870,
but has never before been resorted to as ap-
plicable to the punishment of offenses com-
mitted in the conduct of primary elections
or nominating caucuses or conventions, and
the question presented for decision is:
Did the candidates named in the indict-
ment have such a right under the appli-
cable West Virginia law that a conspiracj
to corrupt the primary election held under
that law on the 6th day of last June "in-
jured and oppressed" them within the
meaning of g IB of the Federal Criminal
CodeT
That this g IB of the Criminal Code Is
apidicable to certain consplraidefl agiUnst
the elective franchise Is decided by thla
court in United States v. Mosley, 238 U 8
383, G9 L. ed. 136fi, SB Sup. Ct. Rep. 904,
but that decision falls far short of making
the section applicable to the conduct of a.
state nominating primary, and does not ad*
vance us far toward the claimed conclusion
that illegal voting for one candidate at
such a primary so violates a right secured,
to the other candidates bj the Unitedn
States Constitution and laws as to'consti-*
tute an offense within the meaning and pur-
pose of the section.
The constitutional warrant under whieh
regulations relating to congreseional eleo-
tiona may be provided by Congress is in
terms applicable to the "times, places, and
manner of holding elections (not nominat-
ing primaries) for Senators and RepreseU'
tatives." Primary elections, such as it is
claimed the defendants corrupted, were not
only unlinown when the Conatitution was
adopted, but they were equally unknown
for many years after the law, now § 19,
was first enacted. They are a development
of comparatively recent years, designed to
take the place of the nominating caucus or
convention, as these existed before the
change, and even yet the new system must
be considered in an experimental stage of
development, under a variety of stats laws.
The claim that such a nominating pri-
mary, as distinguished from a final electiqn,
is included within the provision of the Con-
stitution of the United States, applicable
to the election of Senators and Represen-
tatives, la by no means IndiBputable. Many
stal« supreme courts have held Uiat simi-
lar provisions of state Constitutions relat-
ing to elections do not include a nominat-
ing primary. Ledger wood v. Pitts, 122
Teun. 670, 126 S. VV. 1036; Uontgomery r.
Chelf, 118 Ky. 700, 82 B. W. 388; eut«
es rel. Von Stade v. Taylor, 220 Ho. 619,
lis S. W. 373; State ex rel. Zent v. Nioh-
ola, 60 Wash. 608, B7 Pac 728; Gray v.
SeiU, 162 Ind. 1, 09 K. K. 460; StaU ex
rel. Nordin v. Erickson, IIB l^inn. 162, 137
N. W. 386.
But even if It be admitted that, in gen-
eral, a primary should be treated as an
election within the meaning o( the ConsU-
tution, which we need not and do not de-
cide, such admission would not be of value
in determining the case before us, because
of aome strikingly unusual features of the
West Virginia law under which the pri-
mary was held, out of which this prosecu-
tion grows. By its terms this law providedgg
Uiat only candidates for Congress belong-S
ing'to a political party which polled 3 per
cent of the vote of the entire state at the
lost preeeding general election could be
Toted for at this primary, and thereby, it
,A_^OOglC
ST SUPREME COURT REPORTER.
Oct. Tsbh,
b Miid at the bar, only DemocratiB and Re-
publicaa candidates could be and were
Toted for, while candidatA* of the Frohibl-
tion and Socialist |>artiea were excluded, at
were also Independent votera wtio declined
ta make oath that tfaey were "Tegular and
qualified members and voters" of one of
the greater parties. Even more notable la
th* proviaion of the law that, after the
nominating primary, candidates, even per-
sons who have failed at the primary, may
be nominated by certificate signed by not
less than 5 per cent of the entire vote
polled at the last preceding election. Acta
West Va. 1916, chap. 2B, pp. 222, 240.
Such provisions a* these, adapted though
they may be to tbe selection of party can-
didates for ofGce, obviously could not be
lawfully applied to a final election at which
ofRcera are cbosan, and it cannot reasonably
be said that rights which candidates for
the nomination for Senator of the United
States may have in such a primary under
aucb a law are derived from the Constitu-
tion and UWB of the United States. They
are derived wholly from tbe state law, and
nothing of tlie kind can be found In any
Federal statute. Even when Congrees as-
sumed, as we have seen, to provide as elabo-
rate system of supervision over congres-
sional elections, no action was taken
looking to tiie regulation of nominating
caucuses or conventions, which were the
nominating agencies In use at the time such
laws were enacted.
What power Congress would have to
make regulations for nominating primaries,
or to alter such regulations when made by
a state, we need not inquire. It is sufficient
to say that aa yet It has shown no diaposi-
tion to assume control of such primaries or
to participate in them in any way, and
^tbat it ia not for the courts, In the absence
JBof aucb legislation, to attempt to supply
■ It by atrctching old statutes to new uses,
to which they are not adapted and for
which tliey were not intended. In this case,
as in the others, we conclude that the sec-
tion of the Criminal Code relied upon,
originally enacted for tbe protection of tbe
civil rights of the then lately enfranchiaed
QSgro, cannot be extended so as to make It
an agency for enforcing a state primary
law, such as this one of Weat Virginia.
He claim that the effect of the Federal
Corrupt Practiees Act (June 26, 1010, 36
Stat, at U chap. 392, p. 822, Comp. Stat
1913, 3 188, aniended August 19, 1911 [37
Stat, at L. ZQ, clisp. 33, Comp. Stat. 1913,
I 192], and August 23d, 1912 [37 SUt. at
L. seO, chap. 349, Comp. Stat. 1913,
I IBS]), recognizing primary elections and
limiting the expenditures of eondidatea for
senatoT In connection with them, is, In
(feet, an adoption by Congress of all stat«
primary laws, la too unsubstantial for di»
eusaioD; and the like claim that tbe tem-
porary measure (Act of June 4, 1614, 38
Stat, at L. p. 384, chap. 103), enacted fa;
Congress for the conduct of the nomination
and election of Senators until other pro-
vislona should be mode by state legislation
cannot be entertained, because tliis act was
superseded by the West Virginia primary
election law, passed February 20th, 1914,
effective ninety days after its passage.
It results that the judgments of tlie Dis-
trict Caurt in each of these cases must b»
affirmed.
The illegal function of controlling tha
price at which a patented maciiine may ba
resold after the manufacturer has been paid
therefor, and after it has passed into the
hands of dealers and the public, is the sole
purpose that can be attributed to the at-
taching of a notice to eucli machine which
states that such machine is liceniied for the
term of the patent having the longest time
to run, and that it msy not be delivered to
any unlicensed member of the general publie
until "the full license price" stated in tii*
notice Is paid, since this notice is not faa-
tended as a security for any further pay-
ment, OS the fuli price, called a "royalty,"
is paid before the manufacturer parts with
the possession of the macliine, aud is not
to be used as a basis for keeping the manu-
facturer Informed as to the condition or
use of the machine, as no report of any char-
acter ia required from the "ultimate user"
after he has paid the stipulated price, and
since such notice, notwithstanding its ap-
parently studied avoidance of the use of
the word "sale," and ita frequent reference
to the word "use," omits the most obvioua
requirements for securing a bona fide en-
forcement of the restrictions of the notice
as to "use," and under it, even by ita own
terms, the title to the machines ultimately
vests in the "ultimate ueets'' without any
further payment or action on their part
upon the sxplration of patents wliicb, so far
as the notice shows, may or may not be in-
corporated in the machine.
[Ed. Nota.~ror otbsr eaaea, ■•• PaUSU, Cent.
!S.l
[No. 374-1
1* topic * KBY-NUUBER In all Kajr-Numliered Dlwats *
'«ST?gic
I014.
, STRAUS T. VICTOB TALKDCG MACHINE CO.
4U
o-^
-vN WRIT of Certiorari to the United
' State* Circvlt Court of AppeaU ioi tbe
Second Circuit to review a decree which,
on a second appeal, reTsrsed a decree of tbi
District Court of the United States for the
Gouthern District of New York, dismisalng
the bill in a suit charging tbt Tiolatioa of
a license reatriction made by the owner of
a patent. Reversed, and decree of District
Court affirmed.
See same case below, on first appeal in
140 C. C. A. SIS, 225 Fed. S3S; on second
appeal in 144 C. C. A. E91. E30 Fed. 449.
The tact* are stated in the opinion,
Mesars. Edmond E, Wise and Walter
C Nof es for petitioners.
UcBsrs. Hector T. Fen ton and Frederick
A. Blount for respondent.
Ueoari. Elisha E. Camp, Daniel N. Eirby,
J and Taylor E. Brown as anici curie.
• * Ur. Jostle* Clark« delivered the opinion
of the court:
It will contribute to brevity to designate
the parties to this proceeding a« they were
in the trial court, — the respondent as plain-
tilT and the petitioners as defendants.
The plaintiff in Its bill alleges: that It is
a corporation of New Jers^; that for many
years it has bc«n manufacturing sound-
reproducing machine* embodying various
features covered by patent* of which it is
the owner, and tiiat, for the purpose of
■narbeting these machines to the best advan-
tage, about August 1st, 1013, it adopted a
form of contract wliich it calls a "License
Contract" and a form of notice called a
"Licenae Notice," under which it alleges
all of it* machine* have, since that date,
been furnlghed to dealers and to the public.
Tbia "License Notic«," which la attached
to each machine and Is set ont in full In the
bill, declares that the machine to which It
1* attaohed la manufaetured under patents,
^ia licensed for the term of the patent nnder
^which it is licensed having tbe longest time
• t« run, and may be ^ised only with sound
records, sound boxes, and needles manu-
factured by the plaintiff; that only the
right to use the machine "for demonstrat-
ing purposes" i* granted to "distributors"
( wholesale dealer*), hut that these "dis-
tributors" may assign a like right "to tha
publio" or to "r^ularly licensed Victor
dealers" (retailers) "at Um dealer's regular
discount royalty;" that the "dealers" may
eonrsy the "licenia to use tha machine^' only
when a "royalty" of not le** than $200
shall have beat paid, and upon tba "con-
rideratloa" that all of the oonditiona of tha
■Umm" Aall hava bMB obaarradt that
ilie title to tbe machine shall remain in
Uie plaintiff, whioh aball have tha right to
rspoBseaa it nptm breach «f any ol the eon-
ditions of the notii^e, by paying to tha user
the amount paid by him, lee* 5 per cent for
eaoh year that tbe machine has been used.
The notice in terms reserves the right to
the plaintiff to inspect, test, and repair the
maohine at all times and to instruct tha
user in its use, "but it assumes no obliga-
tion to do so;" it provides that "any ex.
cessive uee or violation of the conditions
shall be an infringcnent of plaintiff's pat-
ent," and that any erasure or removal of
the notice will be considered as a violation
of the license. Finally, it provide* that at
the expiration of tbe patent "under which
it Is licensed" having the longest time to
run tbe machine shall become the property
of tbe licensee provided all the oonditiona
recited in the notice shall have been com-
plied with, and the acceptance of the ma-
chine i* declared to b* "an acceptance of
these conditions."
The contract between the plaintiff and it*
dealers is not set out in full in the biU, but
it is alleged that since August 1st, 1913,
tbe plaintiff lias had with each of its 7,000
licensed dealers a written contract in which
all the terms of the "License Notice" are in
*ub*tanoe repeated, and in addition it is
alleged that each dealer, "if be ha* signed
the assent thereto," is authorized to dia-^
pose of any machines received from "ths*
plaintiff directly or through a^paramount*
distributing dealer," but subject to all of
the conditions expressed in tbe "License
Notice." It is alleged that this contract
contains the provision that "a breai^h of
any of the conditions on the part of a dis-
tributor will render him liable, not only for
an infringement of the patent, but to an
action on tbe contract or other proper rem-
edy."
As to the defendants, the bill allege*
that they conduct a large mercantile busi-
ness in New York city; that with lull
knowledge of the terms of tbe contract, as
described, between the plaintiff and its dis-
tributors, and of the "License Notice" at-
tached to each machine, the defendants,
"being members of the general unlicensed
public," and having no contract relation with
tbe plaintiff or with any of it* licensed dis-
tributor* or licensed dealers. Induced "cov-
ertly and on various pretenaes," one or mors
' plaintiff's licensed distributors or deal-
to violato bis or their contracts with the
plsJntifl, providing that no macliines should
be delivered to any unlicen^^d memijer ot
the general public until "the full license
price" stated In the "License Notice" affixed
to each machine was paid, and thereby ot»-
tained possession of a large number of sueh
machines at much less than the prices stated
the "License Notice;" that under the
t«nu al th* aatd license agreemant and
L',oiii,j-,<^-.OOglC
«u
ST SUFBEME COUKT REPOBTEB.
aotice, thej have no title to Uie aame, «iid
that they have Bold large numbers thereof
to the public, and are propoEing and threat-
ening to diapose of the remainder of those
which they have acquired to "the unlicenaed
general public," at much less than the price
stated In the notice aSsed to each machine.
The prayer is for an injunation restrain'
Ing the defendants from selling anj of the
machines, poaBesBioQ of which tiiej have ac-
quired, from other and further violation of
plaintifTa righta under its letters patent,
and for the usual accounting and for dam-
^iges.
a The district court regarded the transaction
• described'ln the "License Notice" as in
ataiics a sale which exhausted tlie Interest
of tbe plaintiff in the machine, except
to the light to have it used with records
and needles as provided for therein, and
this right not being involved In this case,
it dismissed the bill. 223 Fed. 024,
On appeal, the circuit court of appeali
affirmed this judgment and remanded the
case, but with instructiona to allow the
plaintiff to amend its bill "if it be so ad-
vised." 140 C. C. A. B19, 225 Fed. 035.
The bill was thereafter so amended as to
allege that the defendants bad in thwr
possession a large number of machines
which the; bad obtained from plaintiff's
distributors and dealers at much less in
each case than the price stated in the
"License Notice," and that they ware pro-
posing to dispose of these machines to the
"unlicensed general publio'* at less than the
prices stated in the "License Notice," In
disregard of plaintiff's rights.
Again, the district court, on the same
ground as before, sustained a motion to dia-
mias the bill, but the circuit court of ap-
peals reversed this holding (144 C. C. A.
BBl, 230 Fed. 44B) and the case is here for
The abstract of the bill which we have
given makes it plain: That whatever righta
the plaintiff has against the defendants
must be derived from the "License Notice"
atlaclied to each machine, for no contract
rights existed between them, the defendants
being only "members of the nnliceneed gen-
eral public;" and that the sole act of In-
fringement charged against the defendants
is that they exceeded the terms of the li-
cense notice by obtaining machines from the
plniiitilT's wholesale or retail agents, and
by exiling them at less than the price fixed
by tbe plaintiff.
It is apparent from the foregoing state-
ment tliat we are called upon to determine
wlietlicr the system ado[>ted by the plaintiff
was selected as a means of securing to the
owner of the patent that exclusive right to
Oor. Tkbi^
the patent law, or whether,* under color of*
such a purpose, it is a device unlawfully
resorted to in an effort to profitably extend
the scope of its patent at the expense of the
general public. Is It the fact, as is claimed,
that this "License NoUce" of the plaintiff
is a means or agency designed in candor
and good faith to enable the plaintiff t«
make only that full, reasonable, and exclusive
use of its invention which is contemplated
by the patent law, or is It a disguised at-
tempt to control the prices of its machine*
after they have been sold and paid fort
First of all, it is plainly apparent that
this plan of marketing, adopted by the plain-
tiff. Is, in substance, the one dealt with by
this court In Dr. Uiles Medical Co. v,
John D. Park k Sons Co. 220 U. S. 373, 55
L. ed. S02, 31 Sup. Ct. Hep. 376, and in
Bauer v. O'Donnell, 228 U. 8. 1, 57 L. ed.
1041, 60 L.R.A.(N.S.) 1185, 33 Sup. Ct.
Bep. 616, Ann. Cas. 1B15A, 150, adroitly
modified on the one hand to take advantage,
if possible, of distinctions suggested by
these decisions, and, on ths other hand, fat
evade certain supposed effects of them.
If WB look through the words and forms
with which tbe plaintiff has most elaborate-
ly envelc^ed Its purpose, to the subatance
and realities of the transaction contem-
plated, we shall discover several notable
and significant features. First, while, as if
looking to the future the notice, in terms,
imposes varioua restrictions as to title and
as to the "use" of tbe machines by plaintiff's
agents, wholesale and retail, and by the
"unlicensed members of the public," (or It-
elf, the plaintiff makes sure that the
future ahall have no risks, for it requires
that all that it asks or expects at any
time to receive for each machine must be
paid In fnll before it parts with the posses-
Second, while in terms the "use" of each
machine Is restricted, and forfeiture for
failure to strictly comply witb the many
conditions and requirements of the notice
is provided for, this system, elaborate to
the extent of confusion, faUa utterly to pro-
vide for entering any evidence of a qualified,
title In any public office or in any publisa
Veeord, and no requirement is found in it*
for reporting by usera or licensees, who
may remove from one ptaoe to another,
the machine with them, as would
very certalDly be required If the plaintiff
Intended to enforce the rights so elaborate-
ly asserted In this notice, — if the system
were really a genuine provision deaigned to
protect through many years to come the
restricted right to "use" and the seemingly
qualified title which It purports to grant to
dealers and to the public, from being ex-
which is granted through eeeded or departed from.
A^iOOglC
ISll
STRAUS T. TICrOR TAUOMa UACHIMB CO.
41S
TUrd. The fact that imder th]a ajitem
"at different times" "large numbers" ol
machinea, as i« alleged in the plaintiff's
bill, have been "covertly" iotd to the defend-
ants bj the plaintiff's wholesale and retail
agenta at leu than the price fixed for them,
is persuaalve evidence that the transaction
ia not wliat it purport* on ita faoe to be.
If it were a reasonablj guarded plan, reftllj
Intended to keep the plaintiff In touch with
each of ita machinea until the expiration
of the patent of latest date, for the purpose
of iatistlng upon ita being used In ths man-
ner provided for in the "License Notice,"
the plaintifTs prompt and sufficient remedy
for such an invasion of ita right as is
claimed in thia case would be found in Its
aales department, or rather in its "license"
department, and not in tlie courte. That
the plaintiff comes into court with « bill
to enjoin the defendants from reselling ma-
chines secretly sold to them in large num-
bers I7 the plaintiff's agents indicates very
dearly that at least until the exigency out
ol which this ease grew arose, the scheme
was regarded by the plaintiff Itself and by
Its agents simply as one for maintaining
prices by holding a patent infringement suit
in terrorem over the ignorant and the timid.
And finally, while tlie notice permits the
use of the machines, which have been fully
paid for, by ths "unlicensed members of the
egeneral public," signiflcantly called in the
?bm "the ultimate users," until "the'eKpIra-
tion of the patent having the longest term
to run" <which, under the copy of the no-
tice set out Id the bill, would be July 22d,
1930), it provides that if the licensee shall
not b«T« failed to obeerre the conditions of
the license^ and the Victor Company shall
not have preriously taken possession of the
machine, aa in the notice provided, then,
perhaps sixteen years or more after he has
paid for it, and In all probability long after
tt haa been worn out or become obsolete and
worthleas, "it shall Income the property of
the licensee. "
It thus becomes clear that this "License
Notice" is not intended as a security for
any further payment upon the machine, lor
the full price, called a "royalty," was paid
before the plaintiff parted with the posses-
sion of it; that It ia not to be used as a
basis for tracing and keeping the plaintiff
informed aa to the condition or use of the
machine, for no report of any character is
required from the "ultimate user" after he
has paid the stipulated price; that, not-
withstanding its apparently studied avoid-
ance of the UM of the word "sale," and ita
frequent reference to the word "use," ths
most obvious requirements for securing a
bona fide enforcement of tha restrictions ef
the notice as to "nae" are omitted) and
that, even by Its own terms, the title ta
the machines ultimately vests In the "ulti-
mate users," without further payment or
action on their part, except patiently wait-
ing for patents to expire on inventions
whidi, so far aa this notice shows, may or
may not be Incorporated In the machine.
There remains for this "License Notice,"
so far as we can discover, the function only
of fixing and maintaining the price of
plaintiff's machines to its agents and to ths
public, and this, we cannot doubt, is the
purpose for which It really was designed.
Courts would be perversely blind if they
failed to look through such an attempt as
this "License Notice" tbua plainly is to
sell property for a full price, and yet toe
place'restraints upon its further alienation,?
such as have been hateful to the law from
Lord Coke's day to ours, because obnoxious
to the public intereat. The scheme of dia-
tribution is not a system designed to secura
to the plaintiff and to the public a reason-
able Dse of its machines, within the grant
of the patent laws, but is In aubstance and
in fact a mere price-fixing enterprise, which,
U liven effect, would woi^ great and wide-
spread injnatlcs to Innocent purchasers, for
It must be rec(«nized that not (me pur-
chaser In many wonld read anch a notice,
and that not one In a much greater num-
ber. If he did read it, could understand Ita
involved and intricate phraseology, which
bears many evidences of being framed to
conceal rather than to make clear its re»l
meaning and purpose. It would be a per-
version of terms to call Uie transaction In-
tended to be embodied In this system of
marketing plaintiff's machinea a "license to
use the invention." Bauer v. O'Donnell, Z29
V. S. 1, 18, 67 L. ed. 1041, 10t6, 50 L.R_i.
(N.8.) 118G, 33 Sup. Ct lUp. 616, Ann. Caa.
1D16A, 160.
Convinced, as we are, that the purpose
and effect of this "License Notice" of plain-
tiff, considered aa a part of its scheme for
marketing lis product, is not to secure to
the plaintiff any use of its machines, and
as Is contemplated by the patent statutes,
but that Its real and poorly-concealed pur>
pose is to restrict the price of tliem, after
the plaintiff had been paid for them and
after they have passed into the posBesHion
of dealers and of the public, we conclude
that it falls within the principles of Adams
V. Burke, 17 Wall. 4G3, 45S, 21 L. ed. TOO,
703; and of Bauer v. O'Donnell, 229 U. S.
1, 67 L. ed. 1041, 60 L.R.A.(N.S.) 1185, 33
Sup. Ct Hep. aiG, Ann. Cas. 1015A, ISO;
that it is, therefore, invalid, and that tha
district court properly held that the biM
must fail lor want of equity.
,A_.OOglC
ST SUPREME OOUBT REPORTER.
It twuUb thftt tlia decree of the Circuit
Court of Appeals will be reveraed uid Uiat
«f the District Court affirmed.
B everted.
<M U. a. u»
MOnON PICTURE PATEaTTS COMPANY,
Petitioner,
Patents «=b216— RKSTBimona on Un —
Sfecifio SurFLiBB— BMtobb Oohditkjhi
i. The owner of k patent may not, nn-
in V. S. Rev. Stat. | 488* (Comp. Stat
]fll3, S 0428), giviog him the excluelve
right to UM the invention, restrict its use
hy a purchaser, by a notice attached to Uie
machine embodying the patent, to specific
materials necesBsr; to its operation, but
which are no part of the patented machine,
and are not themselvei patented, nor can
he, by such notice, males tlie use of the ma-
chine BuTiject to further conditions as to
use or royalties that may be Imposed there-
«(t«r in his discretion.
[Bd. Not*.— Pot ottasr caMs, ■•• Patnb^ OsBt.
Patents ^=>20S — RismicTioita on Use —
&i>ec1p1c supfuks— putuxe cokditiorb
—Notice.
2. The exclusive right to use the inven-
tion or discovery granted by U. S. Iter.
Stat § 4aS4 (Comp. Stat 1913, | B428),
to the patentee, bie heirs or assignees, did
not invest the assignee of the Latham pat-
ent No. 707,934, who had licensed another
to make and sell a motion picture exhiCit-
ing machine emboilying the invention, with
the power to limit, by a notice attaclied to
the machine, its use by a purchaser or the
latter's leasee to (ilins containing the inven-
tion of the reissued Edison patent No.
12,192, so long as the assignee continues to
own such patents, nor by such notice to con-
dition the use upon other terms to be fixed
by such assignee and oomplied with by the
user while the machine is in use and while
the taaigaee owns the patents.
[Bd. Note.— ror ottier cuo; MS PatuiU, Oent
IMf. II m-S4.1 ,
[No. 71B.]
Argued January 12 and 15, 1B17. Decided
April B, 1917.
ON WRIT of Certiorari to the United
States Circuit Court of Appeals for
the Second Circuit to review a decree which
Affirmed a decree of the District Court for
the Southern District of New York, die-
On. Teuc.
I restriction oa
M'-i'"g the bill in k suit to enjoin the tIo- give* only the right t
ietavi* * KET-NVHBHK l> all Kir-M
lation «f on allq^ed !
the use ol a patented machine
See same esse Iwlow, 236 Fed. 398.
The facts are stated in the opinion.
Mr. Melville Chnrtdi for petitioner.
Messrs. Oscar W. JelTery, Edmund Wet*
more, and John B. Stonehfleld for reepond-
*Mr. Justice Clarke delivered the opinion*
of the court]
In tills suit relief is sought against tlir«e
defendant corporations as Joint infringer!
of claim number 7 of United States letter*
patent No. 707,934, granted to WoodvllI*
Latham, assignor, on August 20, 1902, for
improvements in projectiog-lcinetoscopea.
It is sufGolent description of the patent to
say that it covers a port of the mechanism
used in motion picture exhibiting machine*
for feeding a film through the machine with
a regular, uniform, and accurate movement,
and so a* not to expose the 91m to exce*-
sive strain or wear.
The defendant*, fn * joint answer, do notS
dispute the titl**of the plaintiff to the pat-IP
ent but they deny Uie validity of It deny
infringement, and claim an implied license
to use the patented machine.
Evidence which is undisputed shows that
the plaintilT, on June 20, 1912, in a paper
styled "License Agreement," granted to th*
Precision Machine Company a right and
license to manufacture and sell machine*
embodying tho inventions described and
olsimcd in tlie patent in suit, and in other
patents, throughout the United States, it*
territories and possessiona This agreement
contains a covenant on the part of tb*
grantee thst every machine sold by It, ez>
cept those for export, shall be sold "under
the restriction and condition that sueb
exhibiting or projecting machine shall b*
used solely for exhibiting or projecting mo-
tion pictures containing the inventions of
reissued letters patent No. 12,192, leased by
a (toensee of the licensor toAiI« it oum» said
patents and upon other terms to be fixed
by the licensor and complied with by th*
user while the said mschine is in uss and
while the Uofnsor oicn* said patenU
(which other terms shall onl/ be ths pay-
ment of a royalty or rental to the licensor
while in use)."
The grantee further covenants and agree*
that to each machine sold by it except for
export it will attach a plate showing plain-
ly not only the dates of the letters patent
under which the machine is "licensed," but
also th« following words and figures:
Serial No. .
Patented No.
The sale and purchase of this macblM
Bolelj 1
Wl«. MOTION PICrtTHB PATENTS CO. T. IJNIVEESAL VnM MFO. Ca
417
^ noring pii^turea contBintng the InveDtlon
g of retasurd jinfent No. 12,192, leased bj ft
* licensee of tlie Motion Pi ctunP Patents Com-
pany, the owner of tbe above patents and
reissued patent, while it owns laid pat-
ents, ftnd upon other terms to b« fixed by
the Motion Pieture Patents Company and
complied with by the user while It Is Id
nsa and while the Motion Picture Patents
Company owns said patents. The removal
or defacement of this plate terminates the
right to use this machine.
The agreement furtlier provides that the
grantee shall not sell any machine at lees
thao the plaintiff's list price, except to
jobbers and others for purposes of resale,
•nd that it will require sueh Jobbers and
others to sell at not leu thao plaintiff's
list price. The price fixed in the license
eontract for sale of maclnnes after May
Ist, 1900, is not less than SIEO for each
machine, and the licensee agrees to pay a
royalty of tH on some inacliines and a per-
eentBge of the selling price on others.
It is admitted that the machine, the use
of which is charged to be an infringement
of the patent in suit, was manufactured
by tbe PreclBioa Machine Company, and
was sold and delivered under its "License
AgTeement" to the Seventy-second Street
Amusement Company, then operating a
playhouse on Seventy- second street, in New
York, and that when sold It was fully paid
for and hod attached to it a plate with the
inscription which we hare quoted as re-
ared by the agreement.
Beissued patent 12,102, referred to in
the notice attached to the machine, ex-
pired on August 31, 1B14. The defendant
Prague Amusement Company, on November
8, 1914, leased the Seventy-second street
playhouse from the Seventy-second Street
Amusement Company, and acquired tbe
alleged infringing machine as a part ot the
equipment ol the leased playhouse. Subse-
quent to the expiration of reissued patent
12,192, the defendant Universal Film
Manufacturing Company made two Alms or
reels, which, between March 4th and ITth,
leiS, were sold to the defendant the Uni-
versal Film Exchange, and on March 17,
191S. were supplied to the defendant
Prague Amusement Company for use on
tiie machine, acquired as we have stated,
and were used upon It *t the Seventy-
. fecond Street playhouse on March 18th,
g 1915.
* *0n January IS, 1916, the plaintiff sent
a letter to the Seventy-second Street Amuse-
ment Company, notifying it in general
terms that it was using without a license
ft machine embodying the invsitlon ot pat-
37 S. C— 27.
ent No. 707,934 and warning it that audi
use constituted an infringement of the pat-
ent, and on the same day the plaintiff ad*
dressed a letter to the defendant Universal
Film Exchange, notifying it that it also was
infringing tlie same patents by supplying
films for use upon the machine of the
Seventy- second street playhouse and else-
where. The bill in this caae was filed on
March IS, lOlS.
The district court held that the limita-
tion on the nse of the machine attempted
to t>e made by the notice attached to it after
It had been sold and paid for, was invalid,
and that the Seventy -second Street Amuse-
ment Company, the purchaser, and itt
lessee^ the Prague Amusement Company,
had an Implied license to use the machine
OS it bad been used, and it dismissed the
bill witliout passing on the question raised
in the pleadings ae to the validity ot the
patent. The circuit court of appeals
affirmed the district court 0-48 C. O. A. 660,
235 Fed. 308), and the case is here for re-
view on certiorari.
It was admitted at the bar that 40,000
of the plaintiff's msuihines are now in use
in this country, and that the mechanism
covered by the patent in suit is the only
one with which motion picture films can
be used successfully.
This state ot facte preaeuta two ques-
tions for decision:
First: May a patentee or his assignee
license another to manufacture and sell *
patented machine, and by a mere notice
attached to it limit Its use by the purchaser
or by the purchaser's lessee, to films which
are no part ot the patented machine, and
which are not patented T
Second. May the assignee of a patent,
which has licensed another to make and
tell the machine covered by it, by a meres
notice attached to such machine, limit theg
^ise ot it by the purchaser or by the pui^*
chaser's lessee to terms not stated in the
notice, but which are to be fixed, alter aah^
by such assignee. In its discretion t
It is obvious that in this ease we have
presented anew the inquiry, which is aris-
ing with increasing frequency in recent
years, as to the extent to which a patentee
or his assignee is authorized by our patent
laws to prescribe by notice attached to »
patented machine the conditions of its use
and the supplies which must be used in
the operation of it, under pain of infringe-
ment of the patent.
The statutee relating to patents do not
provide for any such notice and it can de-
rive no aid from them. Rev. Stat S 490D,
Comp. Stat 1S13, g 9446, requiring that
patented articles shall t» marked with the
,A_.OOglC
4M
S7 SUPREUB COURT RBPOBTSa
Got. Tnii,
word Ta.teuted,'* affects onlj tha dunagea
rceoTerabls for infrlsgemeDt {Dunlap T.
Sohodeld. 1S2 U. 8. 244, SS L. td. 420, 14
Bnp. Ct. Rep. S7St i aad Bev. Stat g 49C1,
Comp. Stat iei3, I 9447, proUeta bj ita
penftltle* the Inventor, but neither one con-
tempUtea the lue of auidt » "LJeenM No-
tice" aa we have here, and whatarer Talid-
It; it ha* muat be derived from tiia general,
ftnd not from the patent, law.
The extent to which the nte of the pat-
anted machine may validlj be reatrleted to
■peciSc auppliea or otherwise by apeclal
contract between the owner of a patent and
the purchaaei' or licensee is a question out-
side the patent law, and with it we are not
here □oncerned. Eeeler t. Standard Fold-
ing Bed Co. 157 U. S. 659, S9 L. ed. 843, IS
Sup. Ct Kep. 738.
The inquiry presented by this record, aa
we have atated it, is important and funda-
mental, and it requires that we shall de-
termine the meaning of Congress when, in
Rev. Stat S 48S1, Comp. Stat 1913,
I 942S, it provided that "every patent shall
contain , . , a grant to the patentee,
hla heirs or assigns, lor the term of seven-
teen years, of the gxctuaiva right to make,
iM0, and vend Iht invention or diioovery
throughout the United States, and the terri-
toriet thereof." We are eoncerned only
4 with the right to "use," authorised to be
5 granted by this statute, for it is under war-
* rant of thls'rlght only that the plaintiff
can and does claim validity for ita warning
The words used In the statute are few,
simple, and familiar, they have not been
changed aubitantially since they were flrst
used in the act of ITSO (1 Btat at L.
chap. 7, p. 109), Bauer v, O'Donoell, 229
U. S. 1, 9, 67 L. ed. 1041, 1043, SO UKJL
(N.S.) 1185, 33 Sup. Ct Rep. 818, Ann.
Css. 1015A, 160, and their meaning would
lesm not to be doubtful if we can avoid
reading into them that which they really
do not contain.
In interpreting this language of the stat-
nte it will be of service to keep in mind
three rules long established by this court,
applicable to the patent law and to the
eonstruction of patents, viz.:
1st The scope of every patent is limited
to the invention described in the claims con-
t^ned in tt read in the light of the specifl-
eation. These so mark where the progress
claimed by the patent begins and where it
ends that they have been aptly likened to
tha description in a deed, which seta the
bounds to the grant which it containa It
k to tJie claims of every patent therefore,
that we must turn when we are seeking to
determine what the invention is, the ex-
clualTe use of whldi !• given to the inventor
by the grant provided for t^ the statute^-
"He can claim nothing beyond them."
Keystena Bridge Co. v. Phceniz Iron Co. 95
U. S. 274, 24 L. ed. 344; Lehigh Vall^
B. Co. T. Mellon, 104 U. S. 112, 118, 20
L. ed. 639, 641; Tale Lock Mfg. Co. r.
Qrecnleaf, 117 U. 8. 664, 669, 29 L. ad. 962,
953, 6 Sup. Ct. Bep. 846; UcClaln v. Ort-
mayer, 141 U. S. 419. 424, 35 L. ad. 80(^
802, 12 Gup. Ct. Bap. 76.
Zd. It has long been settled tiiat the pat-
entee receives nothing from the law which
he did not have before, and that the only
effect of his patent is te restrain others from
manufacturing, using, or selling that which
he IkSJ invented. The patent law simply
protects him in tha monopoly of that which
he has Invented and has described In tha
claims of his patent. United States v,
American Bell Teleph. Co. 167 U. S. 224,
239, 42 L. ed. 144, 164, 17 Bup. Ct Rep.
809; Continental Paper Bag Co. v. Eastern
Paper Bag Co. 210 U. 8. 105, 424, 52 L.
ed. 1122, 1130, 28 Sup. Ct Rep. 748; Bauer
T. O'Donnell, 229 U. S. 1, 10, 67 L. ed. 1041,
1043, 60 IULA.(N.S.) 1186, 33 Sup. Ct
Rep. 616, Ann. Cas. 1916A, 160. h
Sd. Since Pennock v. Dialogue, 2 Pet 1, TS
L. ed. 327, was decided in*lS29, this court*
haa consistently held that the primary pur-
pose of our patent laws is not ths creation
of private fortunaa lor ths owners of pat-
ents, but Is "to promote the progress of
science and tha useful arte" (Constitution,
art. 1, i 8), — an object and purpose au-
thoritatively expressed by Mr. Justice
Story, in that deciaion, saying:
"While one great object [of our patent
laws] was, by holding out a reasonable re-
ward to inventors and giving them an
ezolusive right to their inventions for a
limited period, to stimulate ^a efforte of
genius, the main object was 'to promote Uie
progress of science and useful arta' "
Tbiitj years later this court, returning
to tha subject in Kendall r. Winsor, 21
How. 322, 18 L. ed. 186, again pointedly and
aigniflcantly eaya;
"It la undeniably true^ that tha limited
and temporary monopoly granted to invent-
ors was never designed for their ezclusiva
proQt or advantage; the benefit to the pnblle
or communis at large was another and
doubtless the primary object in granting
and securing that monopoly."
This court has never modified thia state-
ment of the relative importance of tha
public and private interests Involved in
every grant of a patent, even while declar-
ing that in the construction of patente and
the patent lawa, inventors flhall be fairly,
even liberally, treated. Qrant r. Baym<md,
A^iOOglC
UlS. MOnOH PIOTTTBE PATENTS CO. r. UHZVEBSAL FILU HTQ. Ca
4U
< Pet. 2ia, 241, 8 L. cd. 378, 884; Wfnan*
T. Denmead, 15 How. 330, 14 L. ed. 717;
Wftlker, Patents, S 18S.
These rules of law make tt vtirj clear
tiiat the scope of the grant which may be
made to an inventor in a patent, pureuant
to the statute, must be limited to the inveD'
tlon described in the oiaime of his patent
(104 U. E. 118, supra); and to determine
what grant may lawfully be so made we
must hold fast to the language of the act
of Congress proriding for it, which is found
In two sections of the Revised Statutes.
M Section 4886 (Comp. SUt. 1913, j 9430)
2 provides that "anj person who baa inTented
■ or discovered any new and useful art,*nia-
flhioe, manufacture or composition of mat-
ter, or any new and useful improvement
thereof, . . . may . . . obtain a
patent therefor;" and § 48B4 (Comp. Stat.
1B13, I S428}, provides that such patent
when obtained "shall contain ... a
grant to the patentee, hie heirs or assigns
... of the exclusive right to . . .
use . . . the invention or discovery."
Thus, the inventor may apply for, and. If
be meets the required conditions, may ob-
tain, a patent for the new and useful in-
vantion irhich he baa discovered, which pat-
•nt shall contain a grant of the right to
the exclusive use of bis discovery.
Plainly, this language of the statute and
the established rules to which we have
referred restrict the patent granted on a
maebine, inch as we have In this case, to
the medianism described in the patent aa
necessary to produce the described results.
It is not concerned with and haa nothing
to do with the materials with which or on
which the machine operates. The grant is
of the exclusive rl^t to use the mechanism
to producs th« result with any appropriate
material, and tbe materials with which the
machine is operated are no part of the pat-
ented machine or of tbe oombinatlon which
produces the patented result. The differ-
ence Is dear end vital between tbe exclusive
right to use the machine, which the law
give* to the inventor, and the right to use
it exclnelvely with prescribed materials to
which such a license notice as we have here
•eeke to restrict it. He restrictions of tbe
law relate to the useful and novel features
of the machine which are described In the
elaims of the patent; they have notblng to
do with the materials used In tbe operation
of the machine; while the notice restrictions
have nothing to do with the invention which
la patented, bnt relate wholly to the mate-
rials to be used with It. Both in form
and in substance the notice attampta a re-
H atriction upon the use of the supplies only,
^ and it cannot, with any ngai to proprle^
in the use of langnag^ be termed a restrii^
tion upon tbe use of tbe machine itself.
Whatever the right of the owner may bo
to control by restriction tbe materials to bo
used in operating the machine, it must bo
a right derived through tbe general law
from tha ownership of the property in the
machine, and It cannot be derived from or
protected by the patent law, which allows
a grant only of tbs right to an ezdueiva
use of the new and useful discovery wbioh
baa been made, — this and nothing more.
This construction gives to the Inventor
tbe exclusive use of Just wbat.hia inventive
genius has discovered. It is all that tb«
statut« provides shall be given to him
and It is all that be should receive, for it
is tbe fair as well aa the statutory measure
of his reward for hla contribution to the
public stock of knowledge. If his discovery
is an important one, bis reward under audi
a construction of tbe law will be large, ao
experience haa abundantly proved; and if
it be unimportant, he should not be per-
mitted by legal devices to impose an unjust
charge upon the public in return for the use
of it. For more than a century this plain
meaning of the statute waa accepted as Ita
technical meaning, and that it afforded
ample incentive to exertion by Inventivo
genius Is proved by the fact that, under
it, the greatest inventions of our time,
teeming with inventions, were made. It
would serve no good purpose to amplify
by argument or illustration this plain
Ding of the statute. It Is so plain Uiat
to argue it would obscure It.
It was not until tbe time came In wbloh
the full possibilities seem first to have been
appreciated of uniting, in one, many
branches of business through corporate
organization, and of gathering great profita
In small paymenta, which are not realiiod
or resented, from many, ratber than sitaallaT
or even equal profits in larger paymenta,
which are felt and nay be refused, from a^
few, that it came to be thought that tbsg
"right to use . . . the Invention"*af a*
patent gave to tbe patentee or his assigns
the right to restrict tbe use of it to ma-
terials or supplies not described In the pat-
ent, and not by its term* made a part of die
thing patented.
The construction of tbe patent law which
Justifies as valid the restriction of pat-
ented machines, by notice, to use with un-
patented supplies necessary In the opera-
tion of them, but which are no part of
them, is believed to bave originated In
Heaton- Pen insular Button-Fastener Co. t.
Enreka Specialty Co. 3S L.ILA. 728, 2S C.
C. A. 267, 4T U. S. App. 146, 77 Fed. ESS
(whiob haa coma to b« widely referred i»
37 SUPREME COURT RBPORTEB.
u thi Buttou-FaAtsuer Cuo), decided by
the circuit court of appeals of the sixth
circuit In ISoe. In this case tlie court,
recogBizing the pioneer character of the de-
ciBion it was rendering, epeaks of the
"novel reetrictionB" which it ii consider-
ing, and Bays that it is called upon "to
mark another boundary line around the
patentee's monopoly which will dalaf him
from engrosting the market for a» arlioU
not the tubjevt of a patent," which It de-
elined to do.
This dfciaion proceeds upon the argunient
that, since the patentee may withhold hie
patent altogL'ther from public use, he must
logically and necessarily he permitted to
Impose any conditions which he chooses
upon any use which he may allow of it.
The defect in this thinking springs from
the substituting of inference and argument
for the language of the statute, and from
failure to distinguish between the rights
which are given to the inventor by the
pateot law and which he may assert against
all the world through an infringement pro-
ceeding, and rights which he may create
for himself by private contract, which, how-
ever, are subject to the rules of general, as
distinguished from those of the patent, law.
Wtiile it is true that under the statutes as
they were (and now are) a patentee might
witllhold hia patented machine from public
aUse, yet if be consented to use it liimself
^or through otliers, such use immediately
* fell within the terms of the'statute, and, as
we have suen, he is thereby restricted to
the use of tlie invention as it is described in
the claims of his patent, and not as it may
be expanded by limitations as to materials
and supplies necessary to the operation of
It, imposed by mere notice to the public.
The high atanding of the court rendering
this decision and the obvioua possibilities
for gain in the method which it approved
led to an immediate and widespread adop-
tion of the system, in wliich these restric-
tions expanded into more and more compre-
hensive forms until at length the case at
bar is reached, with a machine sold and
paid for, yet claimed still to be subject not
only to restriction as to supplies to be
used, but also subject to any restrictions or
conditions as to use or royalty which the
company which authorized its sale may see
ft, after the sale, from time to time to
impose. The perfect instrument of favorit-
ism and oppression wliich such a system
ot doing business, it valid, would put into
the control of the owner of such a patent,
should malts courts astute, if need be, to
defeat its operation. If these restrictions
were sustained, plainly the plaintiff might,
for its own profit or that of its favorltM,
Oo^. Tdu,
hj the obviously simple expedient of vaj-y-
ing its royalty charge, ruin anyone unfortu-
nate enough to be dependent upon its aan-
fessedly important improvements for the
doing of business.
Through the twenty years since the de-
cision in U)e Button-Fastener Case waa an-
nounced there have not been wanting courts
and judges who have dissented from its
conclusions, as is sufGciently shown in the
division of this court when the question in-
volved first cams before it in Henry v. A.
B. Dick Co. 224 U. S. 1, G6 L. ed. 045, 32
Sup. Ct. Rep. 384, and in the disposition
shown not to extend the doctrine in Bauer
r. O'Donnell, 229 U. S. 1, 57 L. ed. 1041, BO
L.RA.(N.S.) 1135, S3 Sup. Ct. Rep. 010,
Ann. Gas. IQISA, ISO.
The exclusive right to "vend" ft patented
article is derived from the same clause ot_
tlie section of the statute which gives the^
exclusive right to "use" such an article, •uid*
following the decision of the Button-
Fastener Case, It waa widely contended as
obviously sound, that the right existed in
tlie owner of a patent to fix k price at
which the patented article might be eold
and resold under penalty of patent infringe-
ment. But this court, when the question
came before it in Bauer v. O'Donnell, supra,
rejecting plausible argument, and adhering
to the language of the statute from which
all patent right Is derived, refused to give
such a construction to the act of Congress,
and decided that the owner of a patent is
not autiiorized by either the letter or the
purpose of the law to Qz, by notice, the
prit'c at which a patented article must be
sold after the first sale of it, declaring that
the right to vend is exhausted by a single,
unconditional sale, the article sold being
thereby carried outside the monopoly ol
the patent law and rendered free of every
restriction which the vendor may attempt
to put upon it. Tlie statutory authority
to grant tlie axclusive right to "use" ft
patented machine is not greater, indeed. It
is precisely the same, as the authority to
grant the exclusive right to "vend," and,
looking to that authority, for the reasons
stated in this opinion, we are convinced
that the exclusive right granted in every
patent must be limited to the invention de-
scribed in the claims of the patent, and thftt
it is not competent for the owner of a pat-
ent, by notice attnclied to its machine, toi
in effect, extend the scope of its patent
monopoly by restricting the use of it to
materials necessary in its operation, but
which are no part of the patented inven-
tion, or to send its machines forth into tlia
channels of trade of the country subject t«
conditions as to use or royalty to be paid.
D,at,z.d>,.'^-.00'^IC
1018. UOnON PICTURE PATENTS CO. t. UNIVEllSAL FILU HFG. CO.
421
to be impoHd thereafter at the discretion of
•uch patent owner. The patent law fur-
nishes no warrant for Buch a practice, and
the cost, inconvenience, and anaojanca to
the public which the oppoflita concluBian
would occadoD forbid it.
It ii arfrued aa a merit of thli tyatem
of lale under a'licenge notice that the put>-
lic la beneflted by the sale of the machine
at what ia practical!; ita ooat, and by the
fact that the owner of the patent makes its
entire proflt from the sale of the aupplies
with which it ii operated. This fact. If it
be a fact, instead of commending, la the
dearest possible condemnation of, the prae-
Uca adopted, for it proves that, under color
of its patent, the owner intends to and
does derive ita profit, not from the inren-
tion on which the law gives it a monopoly,
bat from the unpatented supplies with
which it is used, and which are wholly
without the scope of the patent monopoly,
thus in elfect extMidtng the power to the
owner of the patent to fix the price to the
public of the unpatented aupplies as efTect-
Ively as he may fix the price on the patented
machine.
We are confirmed in the conclusion which
we are announcing by the fact that since
the decision of Henry t. A. B. Dick Co,
■Dpra, the Congress of the United States,
the source of all rights under patents, as
if in response to this decision, has enacted
a law msking it unlawful for any person
engaged in intcTstate commerce "to lease
or make a sale or contract for sale of goods,
. . . machinery, supplies or other com-
modities, tohelh«r palentfd or unpatented,
for UM, conaumptlon or resale ... or
fix a price charged therefor, ... on
the oondition, agreement or understanding
that the lessee or purchaser thereof shall
not use . . . the goods . . . ma-
chinery, supplies or other commodities of
a competitor or competitors of the lessor
or seller, where the effect of such lease,
sale, or contract for sale, or such condition,
agreement or understanding may be to sub-
stantially lessen competition or tend to
create a monopoly in any line of commerce."
(3S But. at L. 730, chap. 323.)
Our conclusion renders it unnecessary to
make the application of tliis statute to the
ease at bar which the circuit court of ap-
^ peals made of it, but it must be accepted by
^ us as a most persuasive expression of the
• publie 'policy of our country with respect
to the question before us.
It is obvious that the conclusions arrived
■t in this opinion are such that the de-
cision in Henry v. A. B. Dick Co. supra,
must be regarded as overruled.
Coming now to the terms of the notice
attached to the machine sold to the Seventy-
Mcood Street Amusement Company under
the license of the plaintiff, and to the flrat
question as we have stated it.
This notice first provides that the ma-
chine, which was sold to and paid tor by
the Amusement Company, may be used only
with moving picture films containing the
invention of reissued patent No. 12,102, h
long as the plaintiff continuea to own thli
reissued patent.
Such a restriction Is invalid because such
a film is obviously not any part of the in-
vention of the patent in suit; because it ii
an attempt, without statutory warrant, to
continue the patent monopoly in this par-
ticular character of film after it has ex-
pired, and because to enforce it would bo
to create a monopoly in the manufacture
and use of moving picture films, wholly
outside of the patent in suit and of the pat-
ent law as WB have interpreted it.
The notice further provides that the ma-
chine shall he used only upon other terma
(than those stated in the notice}, to be
fixed by the plaintilf, while it is la use
and while the plaintiff "owns said patents."
And it is stated at the bar that, under this
warrant, a charge was imposed upon the
purchaser, graduated by the size of the
tlieater in which the machine was to bo
Assuming that the plaintiff has been paid
an average royalty of $5 on each machine
sold, prescribed in the license agrt'enicnt, It
has already received over £200,0(10 for tlie
use of its patented improvement, which ro-
iates only to the method of using the ftlms
which another had invented, and yet it seeks
by this device to collect during the life of^
the patent in suit what would douhtiesaj
"aggregate many times this amount for the*
use of this same invention, after ito m*-
chines have been sold and paiil for.
A restriction which would give to the
plaintiff such a potential power for evil
over an Industry which must be rei^ognized
as an important element in the amusement
life of the nation, under the conclugions we
have stated in this opinion, is plainly void,
because wholly without the scope and pur-
pose of our patent laws, and because, tf
austsined, It would be gravely injurious
to that public interest, which we have seen
is more a favorite of the law than is th«
promotion of private fortunes.
Both questions as stated must be an-
swered in the negative, and the decree of
the Circuit Court ot Appeals ia affirmed.
s in tha
Mr. Justice HoImM, dlosenting:
1 suppose that a patentee has no lesr
property in his patented machine than any
other owner, and that, in addition to IcI^C
422
37 SUPBEMS COUBT BSFORTEB.
Oot. Ton,
Ing the machine to himself, the patent glreB
him the further right to forbid the re«t of
the norld from making others like It. In
■hort, for whatever motive, he maj keep hla
deviM wholly out of uaa. Continental
Paper Bag Co. r. EaaUm Paper Bag Co.
£10 U. S. 40S, 422, G2 I^ ed. 1122, 1129, 28
Sup. Ct Rep. 748. Bo much being nn-
disputed, I cannot underatand whj he may
not keep It out of use unleaa the lIcenBee, or,
for the matter of that, the buyer, will um
■ome unpatented thing in eonnectjon with
It. Generallj speaking, the measure of »
condition la the consequence of a breach,
■nd if that consequence ia one that the
owner may impose unconditionallj, he ma;
Impoae it conditionally upon a certain
•vent Aihley t. Ryan, 163 U. 8. 438, 443,
38 L. ed. 773, 777, 4 Interi. Com. Rep. QQ4,
14 Sup. Ct. Hep. SeS; Ohio ex ret. Lloyd t.
Dollison, 1S4 U. S. 445, 44fi, 43 L. ed. 10Q2,
IMS, 24 Sup. CL. Rep. 703. Non debet
A cnl plua licet, quod minuB eat non licere.
g D. 60, IT, 21.
* * No doubt this principle might be limited
or excluded in caaea where the condition
tonda to bring about a atate of thinga that
there ia a predominant public intereat to
prevent. But there ia no predominant
public interest to prevent a patented tea-
pot or film feeder from being kept from
the public, because, as I have said, the
patentee may keep them tied up at will
while his patent lasts. Neither ia there any
Bueh interest to prevent the purchase of the
tea or films that Is made the condition of
the use of tiie machine. The aupposed con-
travention of public interest Bometimes ia
stated as an attempt to extend the patent
law to unpatented artlclea, which of oouree
It ts not, and more accurately aa a possible
domination to be established by auoh meana.
But the domination is one only to the ex-
tent of the desire for the teapot or film
feeder, and if tbo owner prefers to keep the
pot or tlie feeder unless you will buy his
tea or Alms, I cannot see, in allowing him
the right to do so, anything more than an
ordinary incident of ownership, or, at most,
m eonseqnenco of the Paper Bag Case, on
which, aa it seems to me, this case ought
t« turn. See Grant v. Raymond, 6 Pat 218,
842, S L. ed. S70, 384.
Not only do I bellere that the rule that
I advocats ia right under the Paper Bag
Case, but I think that it baa become a
rule of property that law and justice r«-
qolre to be retained. For fifteen years, at
least since B. Bement & Bona v. National
Harrow Co. 1B6 U. S. 70, 88-93. 4S L. ed.
1058, 1087-1070, 22 Sup. Ct. Rep. 747, if
not considerably earlier, the publie haa
1 encouraged by this court to believe
Heaton-Pen Insular Button-Fastener Co. v.
Eureka Specialty Co. 3S L.R.A. 728, 26 a
C. A. 287, 47 U. S. App. 148, 77 Fed.
288, and numerous other decisions of the
lower courts. I believe that many and im-
portant transactions have taken place on
the faith of thoae decisions, and that for
that reason aa well as for the first that I
have given, the rule last announced in
Henry v. A. B. Dick Co. 224 U. S. 1, 6S L.
ed. 645, 32 Sup. Ct Rep. 304, should be
maintained. m
I will add, for Its bearing upon Straus g
T. Victor Talklni'Mach. Co. 243 U. S. 490, '
61 L. ed. sea, 37 Sup. Ct Rep. 412, that a
conditI<maI sale retaining the title until a fu-
ture event alter delivery has beon decided to
be lawful asain and again by this conrt
Bailey v. Baker Ice Mach. Co. 230 U. a
288, 272, 60 L. ed. 275, 2BS, SO Sup. Ct
Rep. 60. I conrine myself to expressing
mj views upon the general and Important
questions upon which I have the misfortune
to differ from the majority of the court
I leave on one side tiie question of the efieot
of the Clayton Act as the court has done,
and also wbat I might think if the Paper
Bag Case were not upheld, or if tbe ques-
tion were upon the effect of a combination
of patenta such as to be contrary to the
policy that I am bound t« accept from tbo
Congress ol the United States.
SOLOMON LOUIS GIKSBBS&
AxTzitB ^=68— Naturalizatiow — Fihai^
Hkaring— "Open Codbt."
1. The final hearing of a petition for
naturalization Is not had in "open court,"
aa required by the Act of June 29, IBOt
(34 Stat at L. 699, chap. S5B2, Comp. Stat
1913, I 4369), I 9, if, after the petition is
first presented in open court, the hearing
thereof is pasaed to and finally held in tha
ehambera ol the judge adjoining the court
room, on a subsequent day, and at an hour
earlier than that to which tho court baa
been regularly adjourned.
rSM. Note— For otbar euiia, M* Aliens, Cnt
DiR. II iaS-146.
For olber dianltloni. He Words and Phraaea,
First and Sccood Sarlea, Opm Conrt,]
Altehb «=>71U, New, vol T Kej-Na Be-
riea— Naturauzatioii— CaltCBUNQ Ce»-
TinOATE Ilu:oali.t Procured.
2, A certificate of citizenship may bo
set aside and canceled In an indepeudeut
suit brought under tbe Act of June 2S, 1900
(34 Stat, at L. 801, chap. 3692, Comp. SUt.
1913, S 4374), ■ 16, on the ground that it
was illegally procured, if the uncontradicted
evidence at the hearing of the petition shows
that tha law U aa It was laid down in indiapuUbly that the petlUonor waa not
n ma* topic * XIT-NUHBBB In all Key-Nn
ls*l»««ifO[(^
UNITED STATES r. QINSBEBQ.
423
S,Iilled hj reddeneo for dtiHiuUp, and
t the court or judge who heard the peti-
tion and ordered the eertiflMU misapplied
the law and the faeta.
o';
)N A CERTIFICATE from the United
SUtea Cirouit Court of Appeals for the
Kghth Circuit preienting the queetione, in-
ter aila, whether the final hearing of a peti-
tion for naturalization wai had in open
eourt, and whether a eertifieate of dtizen-
•hip ahonld be «et aside ai Illegally pro-
cured. First question answered in the nega-
tiTe. Other queatjon answered in the af-
trmative.
The certificate in question Is as follows:
The Unitml SUtes Circuit Court of Ap-
peals for the Glgfith Circuit herel^ certi-
llea that a record on an appeal now pending
before it discloaee the following:
The United State* of America brought a
■utt in the diatrict court of the United
States for the western district of Missouri
to canoel a certificate of citiEenahip liiuM
Deoember IS, 1912, to Solomon Louis Qlna-
berg, a natiye of Russia. He suit was
brought under the provision of g IS of the
Act of June &9, 1906 {34 Stat, at L. SOI,
ehap. 3692, Comp. Stat. 1013, S 4S74), au-
thorizing "proesedingi in any court having
Jurisdiction to naturalise aliens in the ju-
dioUl district In which the naturalized dti-
sen may reside at the time of bringing the
salt, for the purpow of setting aside and
caneeliog the certificate of citizenship on
tlie ground of fraud, or on the ground tliat
■neh eertlfioate of cittzenehip was illegally
procured," On final bearing the trial court
dismissed the bill. The goTemment ap-
pealed.
The grounds for cancelation averred in
the bill ware: (a) The eertlfieat* of oitizcn-
aUp was lllegall; procured in that there
was a violation of the provision of g > of
the Act of June SQ, 1906, "that ever; final
hearing upon zuch petition (for naturaliza-
tion) shall be had in open court before a
judge or judges thereof," the hearing in
question having been before a judge In
chambers, and not in open court (b) The
oertifleate of citizenship was illegallj pro-
cured because, though the averments of
Olniberg'e petition and the verifying afil-
davlta of his witnesses were in due lotta
and sufficient on their face, yet the undis-
puted facts disclosed at the hearing of the
peUtion showed he was not qualified to be
admitted to ettlMnahip ; and the pstition \
was also a fraud upon t^ law.
At the trial of the suit below there was
no conflict in the evidence ac to tim«, plaes,
and circumstances of the hearing of the
petition for naturalization nor as to Gins-
berg's qualiftcations for dtizenship, and ths
disclosures thereof to tlie judge who award*
ed the certificate. Sworn statements of
these matters by Qinsberg and the two men
who acted as his witnesses were made part
of tlie bill of complaint, and, with the oourt
records, of which judicial notice was taken,
constituted the sole evidence upon which
the trial court refused to cancel the cartifi-
eate and dismissed the bilL This evidocs
showed the following:
The petition for naturalization was heard
by a United States district judge assigned
for service at Kansas City in the western
district of Missouri, not the regular judge
of that district. The petiUon was first
brought up at a night session of the court
December 16, 1912, and the bearing thereof
was postponed by the court, with direction
to Oiasberg and bis witnesses to appear at
tlie judge's chambers some time after 8
o'clook A. u. December 18, 1912. The
judge's ehambera were separata from but
contiguous to the court room. According
to direction they appeared at the chambers
about half past 8 o'clock In the morning,
the hearing was then bad, and the certificate
of citiEensliip was awarded. Aa shown by
the court records for the previous day,
court hsd adjourned until a later hour on
the IBth than that at which the peUtlon
was heard. The petition for naturalization
waa filed June 7, 1912. The proofs at the
hearing of it ahowed that Qinsberg had
not resided continuously within the United
SUtea five years, nor within the state of
Missouri one year, immediately preoeding
the data of his application, as required by
I 4, pp. 2 and 4 of the Act of June 2B,
ISCifi. Qinsberg was a native subject of
Russia. He finished his school studies In
England in 1890. He then went to Brazil
and engaged in miBsionary work. In 1893
he identified himself with a foreign mis-
sion board In that country, witb which ha
served continuously thereafter. At tbe end
of each seven years of service he was al-
lowed a vacation of about fourteen months,
and, having married in Bradi, in 1893, a
native of the state of Hisaouri, he was ac>
customed to tpoid his vacations with his
wife's relatives in the latter place, follow-
_ which, to use hia expression, "he would
return to his home in Brazil." When he
declared his intention to l>eoome a citizen
of the United States, In 1904. it was hU
intention to sever his connection with the
mission board and remain in t'dii country^
but the condition of his work in Brazil
) his
.A^iOOglC
424
37 SUPREME COURT REPORTER.
Oct. Xmc,
reiidencA there. In tlie five jears preceding
June 7, 1912, wben hie petition for natural-
Ixation was filed, he had been "actually and
physically resident within the United
States" but fifty-eight days; that is, from
the 10th of the preceding April. When he
filed his petition for naturalization «,nd
testified in support (hereof he had no in-
tention of claiming continuous residence in
the United States, but whenever asked he
stated the facta about hie actual residence
in Brazil as above recited. He said the
olerk of the court prepared his petition, the
aTerments of which, if true, were auflicient
under the law.
It is further certified that the following
qneatfone of law arise from the record and
are presented, the decision of which ii in-
dispensable to a determination of the case.
To the end that this court may properly
discharge Its duty it desires the instruction
of the Supreme Court upon them:
1. Is the final hearing of a petition for
naturalization had in open court, as re-
quired by g 9 of the Act of June 29, lOOS,
34 Stat, at L. 509, chap. 3502, Comp. SUt.
1913, § 436S, if, after the petition is first
presented in open court, the hearing there-
of is passed to and finally held in the
ebambera of the judge adjoining the court
room, on a subsequent day and at an hour
earlier than that to which the court has
been regularly adjournedt
2. If, under the above circumstancea, the
final hearing of the petition was not in
open court, as required, may the certificate
of citizenship Issued on such a hearing and
the order pursuant thereto he set aside
and canceled in an independent suit brought
under % 15 of the Act of June 20, 190Q,
chap. 3502, on the ground that it was il-
legally procured or is a fraud upon the
lawr
3. Is it a fraud for which a certificate of
citizenship may he set aside and canceled
in an independent suit brought under 3 16
of the Act of June 20, 1908, chap. 3S92, if
the essential avermenta of residence in the
petition far naturalization are sulTicJent
on their (ace, but are false in fact, tlie peti-
tioner having acted In good faith and in
reliance upon the officer who prepared the
petition for him, and having disclosed the
truth at the hearing thereoft
4. May a certificate of citizenship be set
aaide snd canceled in an independent suit
brought under % IS of the Act of June 29,
1906, ciiap. 3592, on the ground that it was
illegally procured, if the uncontradicted evi-
dence at the hearing of the peUtion showed
indisputably that the petitioner was not
qualified by residence for citizenship, and
Uiat the court or judge who heard the peti-
tion and ordered the eertlUcate misapplied
the law and the facts 1
Assistant Attorneys General Warrea and
Wallace for the United SUtea.
No appearance for Solomon Louis Gins-
berg.
Mr. Justice HcReynolda delivered the
opinion of the court:
Four questions have been certified (Ju-
dicial Code, I 239 [36 Stat at !•. Ilfi7. chap.
231, Comp. Stat 191S, | 1216]}; but con-
siderinK the aecompanying statement of
facts and our views in respect of the
law, auawers to the first and fourth will
enable the circuit court of appeals properly
to determine the issues involved. United
SUtes T, Britton, lOB U. S. 109, 207, 27
L. ed. 698, 700, 2 Sup. Ct. Sep. S31.
Question "1. Is the flual hearing of a^
petition for naturalization had in opea ^
court as required by % 9*of the Act of Jime*
20, 1906, chap. 3602, 34 Stat, at L. 609,
Comp. Stat. 1913, % 436B, if, after the peti-
tion is first presented In open court, the
hearing thereof is paued to and finally held
in the chambers of the judge adjoining the
court room, on a subsequent day and at an
hour earlier than that to which the court
bas been regularly adjournedt"
Question "4, May a certificate of citizen-
ship be set aside and canceled in an inde-
pendent suit brought under g IS of the Act
of June 29, 1006, chap. 3692, on the ground
that it was illegally procured, if the un-
contradicted evidence at the hearing of the
petition showed iadisputahly that the peti-
tioner was not qualified by residence for
citizenship, and that the court or judge who '
heard the petition and ordered the certifi-
cate misapplied the law and the facts?"
Prior to 1906 "the Uniform Rule of
Naturalization" authorized by the Constitu-
tion was found in the Act of 1S02 [2 SUt.
at L, 153, chap. 28], and a few amendmenta
thereto. This enumerated only general con-
trolling principles. Grievous abuses having
arisen, Congress undertook, by the Act of
June 29, 1006 (34 Stat at L. G06, chap.
36S2, Comp. Stat 1913, 3 963), to pre-
scribe "and fix a uniform system and a
code of procedure in naturalization matters."
Report Committee on Immigration and
Naturali/ition, H. R. 1789, Feb. 26, 1906.
This specifies with circumstantiality the
manner ("and not otherwise") in which an
alien may be admitted to become a citizen
of the United States; what his preliminary
declaration shall be; form and contents of
his sworn petition to the court and witnesses
by which It must he verified] form of oath
to be taken in open court; necessary proof
concerning residence, character, etc Tha
cleric is required to post notice of the peti-
,A_.OOglC
isie.
UNITED STAl-ES v. EOWELU
4Z5
lion with detalU concerning applicant, whai
Bnal bearing will take place, names of
nitnenes bf which alleged facts are to
be eatablislicd, eta And it is fuiUier pro-
vided:
e Section 9. "That ever; final hearing up-
7 on such petition* shall kic iiad in open court
before a judge or judges thereof, and erery
final order which ma; be made upon such
petition stisll be under the hand of tlie
court and eo tared in full upon a record
kept for that purpose, and upon Bueh final
bearing of such petition the applicant and
witnesses aball be examined under oath
before the court and in the presence of the
Section 15. "That it sbaii be the duty
of the United States district attorne;^ for
the respective districts, upon affidavit show-
ing good cause therefor, to institute pro-
ceedings in any court having jurisdiction to
naturalize aliens in tlie Judicial district
In which the naturalized citizen may re-
side at the time of bringing the suit, for
tbe purpose of setting aside and canceling
the certificate of citizenship on the ground
of fraud or on the ground that such ccr-
tiflcate of citizenaliip was illegally procured.
In any auch proceedings the party holding
the certificate of citiTrcnship alleged to have
been fraudulently or illegally procured shall
have sixty days' personal notice in which
to make answer to the petition of the Unit-
ed States; and It the Iiolder of such certifi-
cate be absent from the United States or
from the district in which he last had hts
residence, auch notice shall be given by
publication In the manner provided for the
service of summons by publicaiion or upon
absentees by the lan-s of the state or the
place where such suit la brought,"
In Johanncssen ▼. United States, SS5 V.
B. 227, 56 L. ed. 1068, 32 Sup. Ct. Rep.
613, we discussed tiiie purpose and effect
of the act.
An alien who seeks political rights as a
member of this nation can rightfully obtain
them only upon terms and conditions speci-
fied by Oongrese. Courts are without au-
thority to sanction changes or modifica-
tions; tlietr duty is rigidly to enforce the
legialative will in' respect of a matter so
^ vital to the public welfare.
5 Section 9 requires a final hearing upon
* the petition in'open court. The term "open
eourt" is used in contradistinction to a
Judge sitting in chambers. Bouvier's Law
Diet. Hi* whole statute indicates & studied
purpose to prevent well-known abuses by
means of publicity throughout tbe entire
proceedings. Its plain language repels the
idea that any part of a final hearing may
take place in chambers, whether adjoining
the court room or elsewhere.
No alien has the slightest riglit to natu-
ralization unless all statutory requirements
are complied with; and every certificate of
citizenship must be treated as granted up-
on condition that the government may ehU-
lenge it, aa provided in § 15, and demand
its cancelation unleas issued in accordance
with such requirements. If procured when
prescribed qualif) eat ions have no existence
in fact, it is illegally procured; a manifest
mistake by the judge cannot supply these
nor render their existence uonessentlal.
Question numbered 1 must be answered In
the negative; numbered 4 in the afllrinativa
And it is so ordered.
UNITED STATES, Plff. in Eir,'
JAilES F. EOWEU, et aL
Indians €=>13 — Alxotmemb — Vcstkd
Rights— Public IiAniib.
1. The direction to the Seeretarv of the
Interior in the Act of June 17, 1610 (39
Stat, at I.. />;)3, chap. 2flUI, S 3, to issue,
in lieu of allotment, a patent in fee for k
quarter section in an Indian school reserve
to a person whose enrolment as an adopted
member of the Kiowa Tribe had been direct-
ei) in the Act of Aoril 4. iniO (36 Stat
at Ij. 2B0, chap. HO), was not a prant in
prffsentl, and Congress could therefore,
without impairing any vested ria[hts, recall
such direction before it was carried out, ■«
it did by the Act of December 10, 1010 [3S
Stat, at L. 887, chap. 3), uiion discovering
that the land designated was lawfully de-
voted to a special use from which it could
not be witlidrawn with due reirard for the
trilie in generdl, or that its sitiintion and
value were such that to allot or convey It
to hira would invest him with much mora
than a (air distributive share of the common
property of the tribe.
tEa. Note.— For otber cases, >M ladlana, CsBI.
Dfg. I 30.]
iwDuiNB 1^=13 — ALLonranTB — Pobuo
2. No right to have carried into effect
the direction of the Secretary of the In-
terior in the Aot of June IT, 1910 (36 Stat
at L. 533, chap. 290), 9 S> ^ >ssua in lien
of allctment a patent in fee for a quarter
section in an Indian school reserve to a
person whoae enrolment as an adopted mem-
ber of the Kiowa Tribe hnd been directed
in the Act of April 4, 1010 (36 Stat, at h.
280, chap. 140), was acquired by the ap-
plication for a patent thereunder, and Con-
greas could, thersfore, consistently with do*
process of taw, thereafter recall such direo-
tion, as it did by the Act of December 19,
1010 (36 Stat, at L. S87, chap. 3), upon
overing that the land designated i
»=>rar otbar euw SM laBie topic * KBT-NDltrasB-la bH K*r-NnmlMr*d Dlcasti
''e'Wogle
42a
S7 SUPBBHE GOUBT REFOBTER.
OOT. nix,
lawfullT devoted to a «p«clal nte from whleb
It covia not be withdrawn with due regard
for the tribe in general, or that Iti litua'
tion and value were such that to allot or
convey it to him would invest him with
much more than a fair distributive share of
the common property of the tribe.
sa. Not*^ -
- 1 W.]
Argued November 2 and 3, 1016. Decided
April 0, 1017.
JN ERROR to the District Court of the
United States for the Western District
of Oklahoma to review & judgment in favor
of defendants in an action In ejectment. R«-
Xhe facts are stated in the opinion.
Aesigtant Attorney Qeneral Wsrren and
Mr. S. W. Williams for plaintiff in error.
Messrs. Henr; E, Asp, Henry Q. Snyder,
Piederick B. Owen, and Walter A. I^brand
n for defendants in error.
* *Mr. Justice Van DeT»nt«r delivered the
opinion of the court:
This is an action In ejectment, brought
by the United States against James V. Ro-
vell and two others. The land in contro-
»er>7 is a quarter section — 160 acres — in
an Indian school reserve in Comanche coun-
ij, Oklahoma.
Three statutes, all enact«d In the same
fear, must be noticed. The first of these is
a provision in the Act of April 4, 1910,
chap. 140, 30 Stat, at L. 80S, 280, author-
ising and directing the Secretary of the In-
twior "to mroll and allot" James F. Ro-
well aa an adopted member of the Kiowa
Tribe of Indiana The second is the follow-
ing provbion In the Aet of June IT, JDIO,
ebap. 206, i 3, 30 Stat, at L. 533: "That
the Secretary of the Interior is hereby au-
thorized and direeted to iasue a patent in
fee for" the tract in controTsrsy "to James
F. Rowell, a full member of the Kiowa,
f Comanche and Apache Tribes of Indians of
Oklahoma, who baa heretofore recelTed no
* allotment of laud from any'aource; this to
be In lieu of all claims to any allotment of
land or money settlement In lieu of an allot-
ment.'' And the third ia the express ro-
peal of the provision Jiut quoted by the
Act of Decsnber IS, ISIO, ehap. S, SO Stat.
at L. S8T. The controversy turns chiefly
upon the true construction and effect of the
provision of June IT and the constitutional
validity of the repealing provision of De-
cember 10. These questions are to be solved
bi the light of the following facta:
A patent wse not issued to Rowell. He
aalced tor one, but, at the suggestion of the
ohairmau of the Commlttoea on Indian Af-
fairs In the Senate and House of Represen-
tatives, the President, In whose name such
patents are issued, withheld his signature
from the patent and directed that nothing
be done until Congress could further con-
sider the matter. Congress was not then
in session, and when It reconvened the mat-
ter was again considered, with the result
that the provision in the Act of June IT
was repealed.
The tract in controversy was part of a
large reservation established by treaties in
1809 as a permanent home for the Kiowa,
Comanche, and Apache Indians. IS Stat.
at L. 681, 689. In 1901 the members ot
these tribes were given allotments in sever-
alty in this reservation and the greater
part of the remaining lands was disposed
of by the United States, — what was deemed
to be their fair value being credited to the
Indians as a trust fund. SI Stat, at L.
chap. 813, i 0, p. 070. At that time a por-
tion of the reeervaUon, embracing the tract
in controversy, was set apart for school
purposes for these Indians, and this school
reserve is still maintained and used tor
their benefit. The tribal relation of these In-
dians has not been terminated. They ara
still in a state ot pupilage and onder the
control of the United States. It retains
the title to their allotments and admiuia-
ters their tribal affairs and property.
James F. Rowell is a white man who&
went to the large* reservation as an Indian*
trader in 18M and has since lived with
these Indians. He is a physician and has
practised among them. In 1903 he married
a Kiowa woman and In 1000 was adopted
as a member ot the tribe. His wife reoeived
an allotment from the tribal lands in 1000,
and some of their chQdren received allot-
ments in 1900 or 1008. 34 Stat, at L. chap.
2680, I ^ p. 214; SS SUt. at I., ehap. 210,
I 24, p. 450. But no allotment had been
made to him when the provision of June
IT, 1910, was enacted. It was enacted at
his solicitation, and the Committees on In-
dian Afifalrs in the Senate and House ot
Representatives, in recommending it* r»-
pesJ, reported that it was enacted in the
belief that the tract dewtribed wae of no
greater value than the average ot those al-
lotted to other members at the tribe, or
than other tract* still subject to allotment,
when In truth it was ti vastly greater
value, and that misrepresentation and de-
ception were practised by Rowell In secur-
ing the legislation. Senate Report No. 024
and House Report No. 1T41, 01st Cong. 3d
Bess. About two years before, the south half
of the same section — 320 acres — had been
sold for town-slta purposes under the Act ot
Marvh 27, 1908, chap. 100, 26 BUt. at U.
40, for upwards of 9260,000.
^ssFer ether c>
I* topic * KIT-NUHBBR la sU Kar-Namber*a Dlcesta « ladwsa
1UI.
UNITED STATES t. ROWBUi.
*ZI
In Jnne, 1911, aix montha after the date
of the repealing act, Rovell entered upon
the tract in contToversjr and aince then haa
rems-ined in poMcuion, although prompt]]'
notified, through the Indian agent, that he
waa a trespaeier and muat vacate the prem-
bee. One of the defendants ii Ronell'i
wife and anotiiec la the wile of a lawyer
who Biaiated him in eecuring the pawage
of the prorision which Congrcae felt called
upon to repeal. She holda a deed from
Rowell, made after the date of the repeal-
ing act, and purporting to convey to her
an undivided one-half intereat in the tract
for a reoited conalderation of tSO.OOO. The
a three defendanta had come to he in poaaea-
$aion when the action waa begun. In tiie
* district eourt'there waa a directed verdict
and a judgment for the defendanta.
Oongreaa naa here concerned with the af-
fain of Indiana whose tribal relation had
not been diaaolved, — ^Indians who were ftill
wards of the United Statea and entitled t«
look to it for proteetion. The plan «f giv-
ing them individual allotmeDta in the reser-
vation theretofore eatabliahed aa a tribal
home, and of eonverting the aurplua landa
Into intereat-bearing funda, was not theira.
But it was obligatory on them, because it
was adopted I^ Congreag in the ezereiae of
ita oontrol over them. Ai in other in-
■tanoBS, the wish of the ward had to yield
to the will of the guardian. And Congress
waa free to exert thia guardianahip in any
manner whleh it deemed appropriate, and
to adjust its action to new or changing eon-
dltioua, so long aa no fundsmental right
waa violated. 1
In view of the soope of this power, as
reflaeted by over a century of praictice and
by the decisions of this court, wa think it
was quite admissible for Congreae to give
effect to Rowell'B atatua as an adopted
menbar of the tribe, to recognisa his claim
to an allotment out of the tribal lands, to
designate the land which he should receive
ftud to direct that It be conveyed to hfm by
• patent in fee without awaiting the ex-
piration of the usual trust period of tweu-
^-flve yeara. And if, before that dtrecticm
waa complied with, It waa discovered that
the land designated waa lawfully devoted
I Stephens v. Cherokee Nation, 174 U. B.
145, 488, 43 U ed. 1041, 10GB, 19 Sup. Ct.
Bep. 722; Cherokee Nation v. Hitchcock, 187
V. 8. 894, 807, 47 L. ed. 183, 190, 23 Sup.
Ct R^. 115; Lone Wolf v. Hitohcodc, 1S7
U. S. 663, 6S4, 47 L. ed. £9e, 305, 23 Sup.
Ct. Rep. 218; Gritts v. Fiaher, 224 U. 8.
640, 846, B0 L. ed. 928, 033, 32 Sup. Ct Rep.
S80; Choate v. Trapp, 224 O. 8. 685, 671,
M L. ed. S41, 044, 32 Sup. Ct Rep. 666;
Sizemore v. Bradv, 236 U. 8. 441, 440, 69
L. ad. 308, 811, 3S Sup. Ot Rep. 136.
to a apecial use from which it could not be
withdrawn with due regard for the tribe In
general, or that its situation and value
were such that to allot or to convey it t«
him would invest bim with much more than
a fair distributive abare of the common^
property of the tribe, we think it was equal-*
ly admiasible for Congreas *to recall that*
direction in the interest of the tribe aa a
whole. At most, that direction was but an
exertion of the administrative control of
the government over the tribal property of
tribal Indians, and was subject to change
by Congress at any time before it was car*
ried into effect. Gritts v. Fiaher, 224 U, S.
840, 648, 66 L. ed. S2B, 633, 32 Sup. Ct
Rep. 630. If the rule were otherwise and
the quarter section upon which the Indian
school buildings are situate had been In-
advertently designated aa the land whleh
he should receive, the situation mlg^t hav*
been one of great embarrassment. Sea
United States v. Des Moines Nav. £ R. Co.
142 U. 6. 610, 044, 36 L, ed. 1099, 1109,
12 Sup. Ct Rep. 308; United States v. Old
Settlers, 148 U. S. 427, 486, 37 L. ed. 809,
623, 13 Sup. Ct. Rep. 850; Cooley. Const
Lim. 7th ed. 267-269.
But it is insisted that the provision of
June 17, 1910, was a grant in preeaenti and
operated in itself to paaa the full title to
Rowell, and therefore that he had a vested
right in the land wbiob the repealing act
could not affect. If the premise l>e right
the conclusion ia obviously so. But ia the
premise rightl Of course, a grant may be
made by a law aa well as by a patent iaaiw4
pursuant to a law, but whether a particu-
lar law operates In iteelf aa a present grant
ia always a question of intention. We turn,
therefore, to the provision relied upon to
aaeertaln whether it diaclosea a purpose to
make auch a grant; that is to say, a pur-
pose to pass the title immediately without
awaiting the issue of a patent. We find in
it no words of present grant, but only a
direction to the Secretary of the Interior
"to iaaue a patent in fee" to Rowell for the
tract deacrlbed. Only through this express
provision for a patent do we learn that a
grant Is intended, and. If it wero elimi-
nated, nothing having any force would re-
main. This, we think, shows that a present
statutory grant waa not Intended, but only
auch a grant as would result from the is-
sue of a patent as directed. The cases eited
as making for a difTerent conclusion ara
plainly distinguish able in that they deal^
with laws or treaties making grants, and^
either containing no provlaion for a patent,*
or providing for one merely by way of fur-
It ia also insisted that t>7 ^n>Iying for n
patent before the provision Uierefor waa ra-
A^iOOglC
37 SUFKEME COUBT REPOETER.
OoT. 1:011,
pe*ted, Rovell accepted that prorlBion, mod
thereby acquired a right to hare it carried
Into effect of which be could not be devest-
ed hj the repealing act, conBistently with
due process of lav. But the proviaion did
not call for an acceptance and it ia evident
that none n-as contemplated, other than
such as would be implied from taking tha
patent when issued. Besidea, statutes ol
this type are not to be regarded as pro-
posals by the government to enter into
executory contracts, but as laws which are
amendable and rcpcatable at the will of
Congress, save that rights created by carry-
ing them into effect cannot be devested or
impaired. Gritte v. Fislier, supra; Choate
V. Trapp, 224 U. S. 8Q3, 671, 66 L. ed. 941,
M4, 32 Sup. Ct, Rep. 666; Siiemore t.
Drady, 235 U. S. 441, 440, G9 L. ed. 308,
311, 35 Sup. Ct. Rep. 13S. A case much in
point is United States ex rel. Levey t.
Stockelager, I2Q U. S. 470, 32 L. ed, 785,
9 Sup. Ct. Rep. 382. Tlie facts out al which
It arose are these: By an Act of March 2,
1867 114 SUt. at L. 033, chap. 208], Con-
greaa confirmed to the widow and children
of a deceased claimant the one-sixth part,
amounting to 75,840 acrea, of an old land
claim, and then, after reciting that the
government had appropriated the land to
other purposes, directed the Commissioner
of the General Land Office to issue to the
widow and children certificates of location
tn 80-acre lots locatable upon public lands
at any land ofiice, in lieu of their asserted
Interest in tlie old claim. Four days Uter
the widow and children requested the Com-
missioner to issue the certificates, but the
request tras not ccmpiied with. On the
30th of tlie same month Congress by a
Joint resolution [15 Stat, at L. 353] ap-
proved by the President, directed that tha
execution of the act be suspended, and the
suspension was not subsequently removed.
The widow and children contended that, in
view of wliat was done, they were entitled,
»■ In a contractual sense, to the certificates,
7 and had acquired a vested right^to them of
which tbey could not be deprived by the
joint resolution without denying tbem due
process of law. But both phases of their
contention were denied, it being said in the
course of the opinion Uiat "the whole thing
remained in fieri and subject to the control
of Congress;" that "there was here no con-
tract between the United States and the
widow and children" in the sense contended,
that the joint resolution "did not deprive
the widow and children ol any property, or
right of property, in violation of the Con-
stitution," and that "the transaction was
merely the ordinary one of a direction by
atatate to a public offloer to perform a
tain duty, and a subsequent direction to
him by statute, before he had performed
that duty or had entered upon its perform-
ance, not to perform it."
For these reasons we conclude that the
repealing provision was valid, and that
while it did not afTect Rawell's status as an
adopted member of the tribe, or his right
to obtain in the usual way an allotment
from the tribal lands not specially reserved,
it did revoke the special provision made in
his behalf in the Act of June IT, 1010.
It results that the verdict, instead of be-
ing directed for the defendants, should bavo
been directed for the government, as was
requested. His requires that the judg-
ment be reversed and the cause remanded
for a new trial.
Judgment reveraed.
Abateuxnt AND Rktital «=345— Ebsob to
Ht*ts ConRT— Scit Aqaisbt Statb Of-
riCEB — EISFIRATION OF TBRU OF OmOK.
Ths axpiration of the term of offioa
of the state comptroller, and the succession
of another person to that office, requires
the dismissal for want of a proper defendant
to stand In judgment of a writ of error
directed to the highest court of the state
to review a decree which affirmed a decree
below, dismissing the bill in a anit to en-
join such official and his sueceseora in of*
ficB from estimating, levying, and assessing
a tax on ths gross receipts of a foreign cor*
poratlon, on the ground that the state law
authorizing the tax was void under the
Federal Constitution, there being no statu-
tory authority for bringing in hla successor
Bad
IN ERROR to the Supremo Court of tha
State of Florida to review a decree whieh
affirmed a decree of the Circuit Court of
Leon County, In that state, dismisslDg the
bill in a suit to enjoin the enforcement of
a tax on the gross receipts of a foreign cor-
poration. Dismissed.
See same cass below, 70 Fla. 9, W S«.
703.
Hm facts an stated in the optnica.
^aFot other ci
Is * KBT-NinCBBB In all Esr-NiUDtMrsd Dliesti ft Indaies
.A^^OOglC
IBIB.
PULLMAN COMPAHX T. KNOTT.
42»
Meura. Frank B. KelloKKi Cord«nlo
A. 8e\-pran<je, Robert E. Olda, anstaTUB
S. Fernsid, and Jobn B. Hartrldge for
plaintiff in error.
Mr. Thomas F. TTeot, Attorney Oeneral
« of Florida, for defendant in error,
5 .
* Mr. Justice Da; delivered tiM opinion of
the court:
Suit was brought in the circuit court of
Leon countj, Florida, by the PuUmiui Com-
pany againet Knott, comptroller of the state
of Florida, to enjoin him and his eucces-
Bore in oQice from estimating, levying, and
assesalng a tfuc on the gross receipts of the
Pullman Company, oa the ground that the
State lav authorizing the tax was void un-
der the Constitution of the United States.
The circuit court held that the law was
constitutional, and dismissed the bill; that
decree was affirmed hy the supreme court
of the state. (TO Fla. 9, 09 So. 703.) The
«ase was then brought here upon writ ot
It Is no* before us upon a motion of the
defendant in error, by the attorney general
«f the state, to dismiss tlie proceeding in
this court upon the ground that there is
DO proper person defendant to stand in
Judgment in the action. It is averred, and
is not disputed, that Knott, the defendant
In error, is no longer comptroller of the
■tate of Florida, his term of office having
expired on January 2, 191T, and that there-
upon he retired from the office of comptrol-
ler and has been succeeded by another, who
is tlie duly commissioned snd acting comp-
troller of the state.
The original salt was against Knott; the
bin stated that he was the duly elected,
qiialifled, and acting comptroller of tlie
state of Florida. The hill sets forth the
duties required of him in that connection
in levying the tax againet the enforcement
of which the injunction was sought by the
Pullman Company,
a, While it is true that the duty required
^eoncems the state, the suit is against Knott
* as an individual, and be'alone can be pun-
ished for the failure to obey an injunction,
should one issue, ss prayed for In the bill.
Whether the court below was right In re-
fusing the injunction and dismissing the
dill against Knott It the question presented.
Id such cases, a long line of deeiaione in
this court has settled that the action abates
upon the expiration of the defendant's term
«f office, and cannot be revlTed against his
•uecesBor in olBce, In tlie absence of a stat-
Vtn so providing.
We had occasion to review and consider
these cases in the ease of Pullman Co. ▼.
Croom, 831 U. 8, 6T1, 68 !•. ed. 37S, 34 Sup.
Ct Rep. 1S2, in which this court held, va-
cating the former order of tubstitntion
granted without discussion, that the action
for an injunction against the enforcement
of the tax abated upon the death of Croom,
Gomptrolier, and there being no statute cov-
ering such cases, no order of substitution
could be nuuie, and thereupon dismissed the
appeal for want of a proper party to stand
in judgment.
The case upon which the subsequent de-
cisions are rested is United States v. Bout-
well, IT Wall. 604, 21 L. ed. 721. In that
case the rule and the reasons for It were
stated by the court. That was a suit tor
maudamui against the Secretary ol tbe
Treasury, and Involved the right t« sub-
stitute the successor of the Secretary, hi*
term of office having expired since the suit
was commenced. The court held that the
right to a writ of mandamus ceased to exist
upon the defendant retiring from the office
of Secretary, and that, in the absence of a
statute, the writ must necessarily abate.
The court further held that the duty sought
to be enforced was a personal one, and ex-
isted only BO long as the office was held;
that the court could not compel the defend-
ant to perform such duty after his power
so to do had ceased; that if the euecessor
In office could be substituted he might tie
mulcted in coats for the fault of his prede-
cessor, without any delinquency of bis own;S
snd that were a demand'made upon him, he*
might discharge the duty, rendering the
interposition of a court unnecessary; and,
in any event, the successor was not In priv-
ity with his predecessor, nor was he his
personal representative. (IT Wall. 004, flOT>
ooa.)
In Warner Valley Stock Co. v. Smith, 1«
U. 8. 28, 41 L. ed. S21, IT Sup. Ct. Bep.
325, the previous cases were reviewed by
Mr. Justice Gray, speaking for the court,
and the principle was applied to a suit for
an injunction.
In United States ex rel. Bemardin V. But-
terworth, 189 U. S. 000, 42 L. ed. 873, 18
Sup. Ct. Rep. 441, it was held that the sub-
stitution could not be nade, even with the
consent of the successor in ofRcs. In that
case it was stated that It seemed desirable
that Congress should provide for the dif-
ficulty by enacting a statute that would per-
mit the successors of heads of departments
who had died or resigned to he brought into
the case by a proper method. Congress
thereupon passed the Act of February 8,
1899 (30 Stat, at L. 822, chap. 121, Comp.
Stat. 1013, g 1694), under the terma of
which successors of officers of the United
States may be substituted In suits brought
againet them In their official capacity.
This statute has no application to other
than Federal officers.
,A_.OOglC
97 SUPREME COURT REPOBTBR,
Id Slcbardaon t. McCheeney, 218 U. S.
4B7, 64 L. cd. 1121, 31 Bup. Ct. Rep. 43,
kn action wki brougbt agtinst McCheaney,
tM ■eoretary of the commonwealth of Ken-
tucky. This court took judicial notica that
hla term of ofSce had expired pending the
auit, and that a BUcceBaor had been inducted
into office, and held that the former rnle
applied, and that the only exception to it
wa« wliere the application touf-ht to be en-
forced devolved upon a corporation or a
continuing body. Marahall v. Dye, 231 U.
6. 250, SB L. ed. £0a, 34 Sup. O. Hep. 92.
lltla eeems to be Uie rule in the Florida
courta. Columbia County v. Bryson, 13
Fla. 281. In the McCbeiney Case thia court
beld that aa the ofBcial authority of the
secretary had terminated, the caae, •» far
U it lought to aecomplieh ita object, waa
T.At an end, and there being no statute pro-
$ Tiding for the lubstitutlon of the aueceasor,
'the writ of error waa'diamlued; citing
Unit«d States r. Boutwell, and United
BtaUa ez rel. Bernardin v. Butterworth,
iupra; Caledonian Coal Co. v. Baker, IH
U. S. 432, 441, 4ft L. ed. 640, 544, 26 Sup.
Ct. Rep. 375.
It ia argued for the plaintiff in error
that this court hsa held that former judg-
ments adjudicating righta against the state
are binding in subsequent actions; that the
mere fact that there has been a change of
person holding the office does not destroy
the effect of the thing adjudged. New Or-
leane v. Citlseni' Bank, 167 U. B. 371. 388.
SS9, 42 L. ed. 202, 208, 209, 17 Sup. Ct.
Kep. 0Ofi. But that argument does not touch
the question here. It waa held in the Citi-
(ou Bank Caae that a holding that a con-
tract for exemption from taxation existed
bound aubaequent offiowi of the state. Ihe
difficulty here is that thia proceeding in
error, since the expiration of Knott's term
of office, leaves no party defendant in error
to atand in judgment.
It ia said that thia ruling Involves great
hardship and that official terms will expire
■0 that eases of this sbrt cannot be reviewed
at all in thia court. In this case the judg-
ment of the state court waa rendered on
June 26, 1916; the order allowing the writ
of error to this court was filed September
24, 191G; and the record was filed in this
court on October 8, 191&, It does not ap-
pear that any attempt was made to ad-
vance the oaae, in view of the expiration of
Knott's temiB of office aa comptroller In
January, 1017. As the law now stands, we
have no alternative except to dismisa the
writ of error for want of a proper defendant
to stand in judgment.
And it is so ordered.
UNITED STATES
liUCEY S. WALLEB and Uamis S. Wallw.
Indians ^327(5)— Btoht to Sob— Avoid-
ISQ OoNVKTAMCBs or Indian Aixot>
HINTO.
The United States was without ca-
pacity to bring suit on behalf of Indian
grantors to act aside, because of the fraud
of the grantees and ths incapacity of such
grantors, certain conveyances by adult
mixed-blood Chippewa Indiana of their pat-
ented allotments in the White Earth In-
dian Beservation, where such conveyancea
were made after the adoption of the Acts
1015, chap. 2285], which removed all re-
strictions as to sale or encumbrance of al-
lotments within such reservation thereto-
fore or thereafter held by adult miied-blood
Indians, and declared that the trust deeda
therefor should pass the title in fee simple,
or that iuch mixed-bloods, upon application,
should be vititled to receive a patent in fee
simple for such allotments.
[Bd. NotaL— For otlier oawa. s«* Indiana. OaaL
□f|. i IS.]
[No. 697.]
Argued Unrch 14 and IE, 1SI7. Decided
April 9, 1917.
ON A CERTIFICATE from the United
States Circuit Court of Appeals for ths
£ighth Circuit presenting tike question
whether ths United States could maintain,
on behalf of certain Indian grantors, a suit
to aet aaide conveyancea made by those In-
diana of their allotments. Answered in the
The facta ore stated in the opinion.
Mr. Frauds J. Kearfnl tor ths United
States.
Mr. Harsball A. Spooner for Lucky 8,
Waller et aL g
' Hr. Justice Dar delivered the opinion of*
the court:
This case ia here upon a certificate from^
the circuit court of appeals for Uie eighthn
circuit, from which it* appears that the«
United States brought a suit in the district
court of the United States for tile district
of Minnesota for the purpose of canceling
and annulling a warranty timber deed from
Ah-be-daun-ah-quod and Ah-sum, Indian al-
lotteea on the Whits Earth Reservation in
Minnesota, to Mamie 8. Waller, dat«d No-
vember 4, 1907, and a certain warranty
deed from the same Indians to L. S. Waller,
dated January 8, 1908, The district court
dismissed tlie bill on the groimd that the
plaintiff had no capacity to maintain
the suit, and upon a further gronnd that
the court had no Jurisdiction to hear and
consider the sam^
IS topic ft KBT-mniBaB In all Kar-Numbsred DUisM * ladsiss
A^^OOglC
lom.
inflTED BTATBS v. WALLER.
431
Tht conrt of appnli eertiiles the bill up-
on wliidi luit wsB brought in the district
court, wherein it i« Uleged that tha United
StatcB brought the action upon behalf of
Ah-ije-daun- all-quod and Aii-sum, Indian al-
lottees in the White Earth Reservation in
Minnesota. The acts of Congress under
which tJie allotments were made 1« the In-
diana named are set forth, and it ii averred
that these acta provided that the lands in
queation should be held in trust b; the
United States for a period of twenty-flve
jears; that tlie Indians for whom tlie suit
was brought were Chippewa Indiana of the
White Earth Iteeervation, residing on the
reservation, and were husband and wife and
adult mixed-blood Indians.
It ia averred that since the establisliment
of the White Earth Reservation the United
States, in pursuance of its treaties and
agreements with the tribes and bands of Chip-
pewa Indiana in the stat« of Minnesota,
•nd in pursuance of its laws, has had and
axercised through the Department of the
Interior and the Office of Indian Affairs
the [unction of guardian, protecting and
defending satd tribes and bands and the
Individual members thereof in the enjoj-
inent and poaeesaion of Uieir property
rights. That before the commission of the
^ acta of the defendanta complained of there
J^wera dulj allotted to Ah-be-daun-ah-quod
• and*Ah->nm certain tracta of land in the
White Earth Reservation, which are de-
scribed.
Hat afterwards, in December, 1907, the
defendant Luckj' 8. Waller, negotiating with
these two Indians for tha purchase of a
portion of the timber up<Hi their allotments,
paid to them fSQ as partial payment for
ench timber, and caused them to sign a
certain paper, produced by him, by placing
their thumb marlcs thereon. Iliat as an
Inducement to procuring the execution of
this paper. Waller falsely and fraudulently
stated that it was merely a receipt for the
payment. That neither Indian could read
or write, and each waa obliged to rely on
Waller for understanding and knowledge of
tiie contents of the instrument, and that so
relying upon him and upon hii false state-
ments, they believed the Instrument to be
but a receipt for the money paid.
That in January, 1009, a further pay-
mmt of 976 was made by Waller to the
two Indians, and another paper executed
by them under similar drcumstancea and
representations. That In June, ISIO, and
December, 1011, sums of $10 were p^d by
Waller to the Indians; that such suma,
aggregating 914S, were all paid with Uie
understanding and belief on the part of
the Indians that they were part of the pnr-
^■•e price of a part of the timber upon
the lands; and that no other or further
monefB have been paid by Walter to tha
Indians.
That in December, 1011, the Indians for
the first time learned, and plaintiff was
thereafter advised, that tha land records in
the offices of the registers of deeds of Mahn-
omen and Clearwater counties, Minnesota,
showed that there had been filed for record
in said offlcei, respectively, two instruments
In writing: one, an inetniment purporting
to be a warrauty timber deed from Ah-be-
dsun-ah-quod and Ah-sum to Mamie S. Wal-
ler, dated November 4, 1007, reciting tlie
consideration for the property therein con-gc
vejed to be {fiOO, and purporting to convey !§
the tlmber*i]pon the lands patented to the*
Indians with the exception of one parcel,
and the other an Instrument purporting
to be a warranty deed from Ah-be-daun-ah-
quod and Ah-sun to U 8. Waller, dated
January S, 1008, reciting the consideration
paid to be $200, and purporting to cmvey
all of the lands patented.
That the instruments so recorded were
the instruments executed by the Indians,
by their thumb marks in the custom of
Indians unable to read or write, and that
the Instruments which the Indians execut-
ed In December, 1007, and January, 1B08,
were not iu truth and In fact the receipts
which the defendant Waller falsely and
fraudulently represented Uiem to be, but
were the instruments so recorded, which
the Indiana signed in Ignorance of their
contents, nature, and effect, and in reliance
upon the false and fraudulent representa-
tions In regard thereto made by the de-
fendant Waller, all of which waa well known
to the defendant.
Hat Mamie 5. Waller Is the wife of de-
fendant Lucky 6. Waller, and tha person
mentioned as the grantee in the timber
deed; that ahe gave no consideration for
the timber deed or the property purporting
to be conveyed thereby; that the deed waa
caused to be token in her name aa grantee
for the mutual benefit of the defendanta;
that she pretenda to have and claims the
title to the property therein described by
virtue of said timber deed, and thereby
seeks to avail herself of the benefit of the
fraud perpetrated in securing the timber
deed from the two Indians.
That the Indians never had any negotia-
tions with either of the defendants, directly
or Indirectly, as to the sale of the lands or
of any timber thereon, or tn any respect
other than as set forth in the hill; that
they never Intended to sell the lands and
never did sell them or any part Uiereof;
and that they nsrer knowingly signed or
executed any instrnment conveying or inS
any manner alienaUng the* lands or any?
,A_^OOglC
432
ST SUPREME COUBI BEPORTEB.
OoT. Tom,
part tiiereof or intereits or righti therein,
or tay timber thereon. That tha imtiu-
nienta which were executed and recorded
had and have the apparent legal effect of
vesting the title to the lands and the timber
thereon in the defendants, and of devesting
the Indiana of whatever right, title, and
Interest io and to said lands and timber were
Intended and provided for them by the
laws of the United States. That the sum
of C145, paid hj Waller to the IndisJiB, la
gT0Ssl7 inadequate and disproportionate to
the Talue of the lands and of the timber
thereupon, and that the value of the lands
la not less than t2,&00, and of the timber
not less than 92,000.
Tbt prayer of the bill ia for surrender
and cancelation of the warranty timber deed
and the warranty deed for the lands. The
ease was appealed to the circuit court of
appeals for the eigbth circuit, which court
has certified to this court the following
question: Has the United States capacity
to maintain the suit In question on behalf
of the Indians named T
The answer to the question propounded
depends upon a consideration of the acta
of Congress relating to these Indians. The
controlling act la the so-called Clapp Amend-
ment of June 21, 1S06 [34 Stat at L. 325.
353, chap. 3504) ; March 1, 190T [34 Stat,
at L. 1015, 1034, chap, 2285).
Before dealing with its interpretation, it
Is neceaaary to have In mind certain matters
which are well-Bettled by the previous de-
cisions of this court. The tribal Indians
are wards of the government, and aa such
under its guardianship. It rests with Con-
gress to determine the time and extent of
emancipation. Conferring citizenship is not
inconsistent with the continuation of such
guardianship, for it has been held tliat cveii
after the Indians have been made citizens,
the relation of guardian and ward for some
purposes may continue. On the other hand,
SCongregs may relieve the Indians from such
7 guardianship and control.'in whole or in
part, and may, if it sees At, clothe them with
full rights and responsibilities concerning
their property, or give to them a partial
emtincipation if it tliinks that course better
for thflr protection. United States v. Nice,
241 U. S. 591, 6B8, 60 L. ed. 1102, 1195,
36 Sup. Ct. Bep. 6QS, and cases cited.
To comprehend what Congress intended to
accompliah by the act In question, it Is
necessary to have in view the previous leg-
islation upon this subject. Its history was
given in United Btatea v. First Nat. Banlc,
234 U. S. 245, 58 L. ed. 1293, 34 Sup. Ct.
Bep. 848, and may be briefly summarized
By the Treaty of Uarch 19, 1867 (IS Stat,
at L. 719), creating: the White Earth Beaer.
ration, the Chippewas of the Miasisslppi
ceded all their land in Minnesota, except
certain described tracts, to the United
States, and the government set apart the
White Earth Beservation for their use,
and provision was made for the certi&cation
to each Indian of not to exceed 160 acre*
of land in lots of 40 aerea each, upon the
cultivation of 10 acres, provided that the
land should b« uempt from taxation and
sale for delit and should not be alienated
except with the approval of the Secretary
of the Interior, and then only to a Chippewa
Indian. Under the General Allotment Act
of February 8, 1887 (24 SUL at L. 38S,
chap. 110, Comp. Stat. 1913, S 4195), pro-
viaioa was made for the allotment of land*
In the Indian reservations in severalty, and
it was provided that upon the approval of
the sJtotmenta, patent thvefor should issua
in the name of the allottees, which slkould
have the legal effect and declare that the
United States held the land for twenty -flv»
years in trust, for the uao and benefit of
the Indian to whom the allotment was
made, or, in case of his death, tor hia beir^
according to the laws of the state or terri-
tory where the land was located. At tha
expiration of that time the United States
was required to convey the same to the In-
dian or his heirs in fee, discharged of the
trust and free of encumbrances, provided
that the President of the United StatM
might, at his discretion, extend the period.s
Conveyances or' contracts touching the landsa
before the expiration of the trust period
were declared null and void. The Nelson
Act of January 14, 1889 (25 Stat, at L. 642,
chap. 24), provided for the relinquislimcnt
to the United States of that part of the re*-
ervation remaining after the allotment, th»
act to become operative mly upon the as-
sent of a certain number of Indians being
obtained. By the Act of February 28, 18B1
(20 Stat, at L. 794, chap. 383, Comp. StaL
1913, 3 4195), the allotments were limited
to 80 acres to each Indian, but by the Act
of April 28, 1004 (33 Stat, at L. 539, chap.
17SG), the maximum aJlotmentE of th«
White Earth Beecrvation were made ISO
acres. While the lands were thus held in
trust and subject to the provisions of tha
Act of February 8, 1887, the Clapp Amend-
ment woe paased (34 Stat, at L. 1015, 1034,
chap. E285), which providcsi
"That all restrictions as to the sale, en-
cumbrance, or taxation for allotments with-
in the White Earth Reservation in the stat*
of Minnesota, heretofore [amended March
1, 1007, the worlc lieretofore* being sub-
stituted for the word 'now'] or hereafter
held by adult mixed-blood Indians, are here-
by removed, and the trust deeds heretotora
or hereafter executed by tlie Departmmt
.A^iOOglc
U18.
UNITED STATES y. WALLER.
tss
for meb aUotmenti kra hereby declared to
paaa the title in fee gimple, or luch mixed
bloods upon application ihsll be entitled
to receive & ptitsnt in fee Bimpla tor such
allotmente; and ai to full blood*, laid re-
•trictiona shall be removed when the Secre-
tarj of the Interior is satislled that aaid
adult full-blood Indiana are
handle their own afTairs, and
the Secretarj of the Interior aliall issue to
■ueh Indian allottee a patent in fee aimple
upon appiicatlon."
Ae stated in the certificate, the Indiana
Involved are adulta of mixed blood, and
the lands in question were duly allotted and
patented to them (bj trust patents, eounsel
acre?) before the deeds in controVGre; were
made. We cannot escape -the conviction
«that the plain language of this act evidences
• the Intent and purpose of Congrcm * lo
make si:ch lands allotted to mixed-blood
Indians subject to alienation "'ilb all the
incidents and rights which inhrre in fuU
ownership in persons of full capacity.
The act deals with two classes; First,
adult mixed-blood Indians, as to whom all
restrictions as to sale or encumbrance are
removed and the trust deeds declared to
pass title in fee simjile, or, upon applica-
tion, such mixed hloods are to receive fee-
aimple patents for their aJlotmcnfa; and,
second, tull-blood Indians, as to whom the
restrictions are to continue until the Secre-
tary of the Interior is satisfied that such
Indiana "are competent to handle their own
affaire," at which time thej are to receive
patents in fee simple. This distinction be-
tween the q u a! Ifl cations of adult mixed and
full-blood Indians is one which CongreM
has not infrequently applied. JInrchie Ti-
ger T. Western Invest. Co. 221 U. S. 28Q, SIM,
309, 65 L. ed. 738, 7*5, 740, 31 Sup, Ct
Rep. 678; United States v. First Nat. Bank,
aupra, at page 260.
The act tlius evidences a legislative judg-
ment that adult mixed-blood Indians are.
In the respects dealt with in the act, capable
cf managing their own affairs, and for
that reason they are given full power and
ktithority to dispose of allotted knda. This
may be a mistake of judgment as to some
cases, and if the allegations of the bill set
forth In the certificate in this caae are true,
it is quite evident that the Indians here
Involved were incapable of making an in-
telligent disposition of their lands. But
Congress dealt with general conditions, and
with these classes of Indians as a whole,
and, with authority over the subject, has
given to adult mixed-blood Indians the full
right to dispose of the lands In question.
It is not for the courts to question this leg-
islative judgment.
In this view of the lej;ialation and the
particular act In question, . wft Jtre unable'
to find any authority 111 tha United SUtes |
37 S. C— 28.
to maintain this suit in behalf of the In-
dians named.
In Heckman r. United SUtes, 224 U. S.
413, ee L. ed. 620, 32 Sup. Ct. Rep. 424. it|
was held*that the United States could main-*
tain a bill to cancel conveyances made by
members of the Cherokee Nation in viola-
tion of restrictions imposed by acts of Con-
gress. Tliat case differs from the present
one, in which there has been no diapositioa
of the lands in violation of restrictions im-
posed by Congress upon alienation by tbe
Indians. In the case now before us, in
whatever other respect the government of
tlie United States may continue to hol4
these Indians as wards, needing and re-
ceiving protection from its authority over
their persons and property, as to the lands
in question the United States, In the paas-
age of the Clnpp Amendment, evidenced Ita
purpose to grant full power and control to
the class named. As to them the govern-
ment has no further interest in or control
over the lands.
It does not follow that the Indians An
without remedy in proper actions brought
by themselves or their guardians, if ther«
be such, for the protection of their rights.
In Dickson v. Luck Land Co. decided at
this term and reported In 242 U. S. 371,
61 L. ed. 371, 37 Sup. Ct Rep. 1(17, this court
had occasion to deal with rights concerning
lands allotted and patented under the Clapp
Amendment to adult mixed-blood Chippewa
Indians, and speaking of the eHect of the
removal of the restrictions, this court said,
at page 376:
"With those restrictions entirely removed
and the fee-aimple patent issued it would
seem that the situation was one in which
ail questions pertaining to the disposal of
the lands naturally would fall within the
scope and operation of the lawa of the state.
And that Congress so intended is shovm by
the Act of May 8, lOOB, chap. 2348 (3(
Stat, at L. IS2, Comp. Stat. 1913, % 4203),
which provides that when an Indian allottee
is given a patent In fee for his allotment
he 'shall have the benefit of and be subject
to the laws, both civil and criminal, of the
state.' Among the laws to which the al-
lottee became subject, and to the benefit^
of which he became entitled, under thisS
enactment, were those governing the'trans-*
fer of real property, fixing the age of ma-
jority, and declaring the disability of ml-
We reach the conclusion that in this suit
the United States was wilhout capacity to
bring the action for the benefit of the In-
dians named, and it follows that the ques-
tion propounded muet be answered in th*
legative.
And IE ia to ordered.
vV^OOglC
37 SUPREME COURT REFOBTEH.
OoT. Tbbi^
(?» t;. 8. 444>
LEHIGH VALLEY RAILROAD COM-
PANY, Appt,
UNITED STATEa
OARBIEBfl «=>13(2) — DlSOBIMmATIOIt —
GHAKoino Less ^I^Aif Pubushed Rates
— Allowakck to SaiPPEK fob 1^N8-
POBTATIOR SBBVICE.
A corporation engaged in forwarding
or bringing goods tor importera from tlie
place of purcliaae in Europe to their desti-
nation in (he United States, charging the
importers for the transportation and such
other services aa it may perform, ma; not
be allowed bj a railway company a per-
centage upon the latter*B published rates,
and a salary aa an inducement to ship by
it* line, without Tiolating the prohibition
of the Act of February 4, 1887 (24 Stat,
at L. ST», chap. 104, Comp. Stat. 1013,
g 8664), g fl, aa amended bj the Act of Juno
2S, 1906 (34 Stat, at L. 567, chap. 3501,
Comp. Stat 1913, S 8669), g 2; and such
allowance cannot ba justified under % 16
of the earlier act as amended by g 4 of
the later act, ai being an allowance for a
transportation aervica lumished by a ship-
APPEAL from the District Court of tha
United SUtea for the Southern District
of New York to review m decree enjoining
lb railway company from making an allon-
anee to a forwarding company aa an induce-
ment to ship by the formula line. Affirmed.
See same case below, 822 Fed. 686.
The facta are stated in the opinion.
Messrs. George X, Bnoklngham, Allan
UcCulloh, Edgar E. Boles, and Stewart G.
Piatt for appellant.
Assistant to the Attmncy General Todd
(or appellee.
Mesars. Joseph W. Folk and Charles W.
Needham (or the Interstate Commerce Com-
• ' Mr, Justice HoIme« delivered the opin-
ion of the court 1
This is a proceeding Instituted by direc-
tion of the Attorney General at the request
of the Interstate Commerce Commission to
prevent the appellant railroad from carry-
lug freight at leas than its published rates
on flic. The case was heard upon bill and
answer and a stipulation, and the question
la whether the facts warrant an Injunction,
as matter of law.
Geo^e W. Sheldon & Company la aa Illi-
nois corporation engaged in forwarding, or
bringing goods for Importers from the place
of pnrcbaae in Europe to tiieir destination
in the United States, and ciiarging the im-
porters for the transportation and such
other ssrriees as it may perform. Of
course the expectation Is that it will make
a profit from the transaction, atthongfa from
the uncertainty of ocean freight charges It
may lose, as the contract ia made in ad-
vance. By arrangement with the appellant,
so far as it la able it sends the goods over
the appcllant'a line, and for doing so re-
ceives from it a varying percentage upon
the published rates and alio a salary of
$5,000 a year. These payments by tiie ap-
pellant are the ground of the bill. The
district court issued an injunction aa
prayed. B22 Fed. 685.
As toward the railroad, George W. Shel-
don t Company is consignor and consignee;
and although It may be In no caae the
owner, that does not concern the appellant.
Upon the admitted facts there can be no
doubt, and it is not denied that it is to all
legal intents the shipper of the goods. In-
terstate Commeroe Commission r. Delaware,
L. & W. R. Co. 2E0 D. 8. 236, 65 L. ed. 448,
31 Sup. Ct Rep. 3G2; Great Northern R.
Co. V. O'Connor, 232 U. 8. 609, 68 L. ed.^
704, 34 Sup. Ct Rep. 330, 8 N. C. C. A. &3.|
It the shipper 'were the owner, an allow
anee to him of a percentage upon the
freight as an induconent to ship by that
line, however honest and however justifiable
on commercial principles, would be contrary
to tiie Act to Regulate Commerce as it now
standa. Act of June E9, 1908, chap. 3691,
3 2, S4 Stat at L. 686, 687, Comp. Stat
1913, g 8E69, amending g 6 of the original
act, etc. See also the original Act of Feb-
ruai7 4, 1887, chap. 104, g 2, 24 Stat at
L. 379, Comp. Stat 1913, g 8664; Wight t.
United States, 187 U. S. 612, 42 L. ed. 253,
IT Sup. Ct Rep. 822. Rut the above cases
show that the carrier cannot inqnira
whether the shipper la the owner, and there-
fore the statute expreBses a necessary policy
when it forbids in universal terms refund-
ing in any manner any portion of the rates
specified In the published tariffs, or extend-
ing to "any shipper" any privilege not so
specified. Of course it does not matter
whether the allowance takes the form of a
deduction or a cross payment Any pay-
ment made by a carrier to a ahipper In con-
sideration of his shipping goods over the
carrier's line conies within the prcdublting
words.
It Is true, no doubtt that George W.
Sheldon & Company in the performance of
the services for which it ia paid, maintains
offices here and abroad, advertises the rail-
road, solicits traffic for it, doea various
other useful things, and, in shor^ we aa-
ISM.
BUNTDTG T. OBEQON.
430
■nma, beneflta tha road and mru
numey, if it wwb kllowabla to earn monef
in that vaj. It i> true «lso that In In-
tentate CommerM ConunlHlon r. V. H.
PeSTsr & Co. £22 U. S. 42, ee L..'«d. S3,
S2 Sup. Ct Bap. 22, ma owner of propert;^
transported wu bald antltlcd, under 3 16
of tbfl Act to Regulate Commerce, to kn
allowance for fumishiug a put of tlu
traniporUtion that the carrier was bound
to furaiih. So Union P. R. Co. r. Updike
Qrain Co. Z22 U. 8. 216, 66 L. ed. 171, 32
Sup. Ct. Sep. SO, and United States r.
Baltimore k 0. B. Co. 231 U. S. 274, 68
L. ed. 218, 34 Snp. C& Rep. 76. But t}iat
ease goea to the verge of what li permitted
bj the act. Ihe aerriMB rendered I>7
George W. Sheldon & Compaor, althou^ '
a practical genae "connected with lu
^.tranaportation," ware not connected with
^It at a neceiaar; part of the carriage, —
* were'not "tranaportation aenica," in the
language of Union F. R. Co. t. Updike
Grain Co. 222 U. 8. 216, 220, 68 L. ed.
171. ITS, 32 Snp. Ct. Rep. 39,— and, in our
opinion, were not auch aerricea aa were con-
templated in tha Act of June EO, lOOS,
tOuf, SS91, I 4, 34 Stat, at L. eSB, Comp.
Stet. 1013, ■ 86S3, amending g 16 of the
original eat. On the other hand, the allow-
anea for them falls within the plain mean-
ing of | 2 of the Aet of 1906, to which we
referred above.
There ia some critleiam of tha form of the
daerae, but it proUibiU with aufOciant plain-
naaa all pajmeDts to George W. Sheldon
t Company, whether by way of lalarj, com-
miiaiou, or otherwiae, in conaideration of
the ahipment of goods by George W. Shel-
don A Company orer ttie appellant'a line.
Daoree affirmed.
(HI D. s. 410
FRANKLIN 0. BUNTING, Plff. In Err.,
STATE OP OBEOON.
ConsnTfJTionAL Daw «=9296(1) — Uaster
AMD Sbbvant «=al8 — Dui PxocBsa OF
Law— Rbgdlatimq Boras o» Labos —
FOUCB PoWEB.
1. A regulation of hours of service — not
of wages — and one, therefore, which the
■tate, in the ezerciae of its police power,
could, consistently with due procesa of law,
enact, ia what was made by the proviaions
of Or. Laws IBIS, chap. 102, g 2, purporting
to Iiave been enacted aa a health measure,
that "no person shall be employed in any
mill, factory, or manufacturing establish-
ment in this state more than ten hours in
any one day except watchmen and employees
when engaged in making necessary repairs
or in ease of emergency where life or prop-
arty is in imminent danger," notwithstand-
ing a proviso to such section that "em-
ployees may work overtime not to exceed
three hours in any one day, conditioned that
payment be made for such overtime at the
rate of time and one half of tha regular
wage."
[Ed. NoU.-Tor other ca>«, SM OonrtltuUonal
SS gS."-!?"- '"■ '""' ■" """■•
U^TXB AITD SlBVANT •S>1S— RKOt]I.ATma
BouBS or Labob — DiscuuiHATion —
CLABeirtOATIOM.
2. An hours-of-servtce taw may be lim-
ited to employees in mills, factories, or
manufacturing establishments, as is done by
Or. Laws 1B13, chap. 102, 3 S, without in-
validating the law as makii^ an uncon-
stitutional diaorimination.
[Bd. Hole.— Fer otber cases, sea Master sad
Sarvaat. CMlt. Dtc | U.}
{Ho. S8.}
Argued April 18, 1916. Restored to docket
for reargument June 12, 191C Reargued
January 19, 1017. Decided April S, 1917.
IN ERROR to the Supreme Court of the
State of Oregon to review a judgment
which affirmed a conviction in the Circuit
Court of Lake County, in that state, for
violating a statutory limitation of hours of
labor without paying ths rate prescribed for
overtime. Affirmed.
e same ease below, 71 Or. 2S9, LJUi.
1917C, neZ, 189 Fa& 781, Ann. Oaa. 19180^
1003.
The facts are stated in tha opinion.
Meears. V!. I«lr Tliompaon and C. W.
Fulton for plaintiff in error.
Messrs. Felix Frankfurter and J. 0.
Bailey, and Mr. George H. Brown, Attor-
ney General of Oregon, for defendant in
ror. 2
Mr. Justice HoKenna delivered the opin-*
Ion of the court:
Indictment charging a viotation of a
statute of the atate of Oregon, g 2 of
which provides aa fallows; «
"No person shall be employed in w^9
lill, factory or* manufacturing establiib-'
ment In this state more than ten hour* to
one day, except watchmen and em-
ployees when engaged In making neoessarj
repairs, or in case of emergency, whwe
life or property is in imminent danger;
provided, however, employees may work
overtime not to exceed three hours in any
day, conditioned that payment be made
lor such overtime at the rate of time and
half of the regular wage." [I&ws 1913,
chap. 102, p. 189.]
A violation of the act Is made a misde-
meanor, and in pursuance of this provision
the indictment was found. It charges a
violation of the act by plaintilT in error.
Bunting by employing and causing to work
In a flour mill belonging to the Lake View
« taste A KBT-NOUBBH In aU Kar-Mamb«r*d DIcests * ladaua
430
37 SUPREME COURT REPORTER.
Oct. Tebm,
Flouring Hills, k eorporation, one Htminer*-
I7 for thirteen hours in one day. Hammers-
ly not being- within the excepted conditions,
ftnd not being paid tha rate prescribed for
overtime.
A demurrer was filed to the indictment,
alleging against its aufliciency tliat the l*w
upon which it was based li invalid because
it violates the 14th Amendment o( the Con-
stitution of the United States and the Con-
stitution of Oregon.
Tlie demurrer was overruled; and the de-
fendant, after arraignment, plea of not
guilt;, and trial, was found guilty. A mo-
tion in arrest of judgment was denied and
he was lined $50. The judgment was
aHirmcd by the supreme court of the state.
Tlie cliief justice of tha court then allowed
this writ of error.
The consonance of the Oregon law with
tlie 14th Amendment is the question In the
case, and this depends upon whether it is
a proper exercise of the police power of the
state, as tlie supreme court of the state
decided tliat it is.
Xliat the police power extends to health
rcguletions is not denied, but it is denied
tliat the law has such purpose or justifica-
tion. It ia contended that it is a wa^e law,
Moot a health regulation, and takes the prop'
• erty of plaintilT in • error without due
proccfls. The contention presents two ques-
tions: (1) Is the law a wage law, or an
bours-of-Bervi(>e lawT And (2) if the lat-
ter, has it eijua!ity of operation t
Section I of the law expresses the policy
that impelled its enactment to be the in-
terest of the state in the physical well-
being of its citi^-ena and that it is injuri-
ous to their liealth for them to work "in
any mill, factory or manufacturing estab-
lishment" more than ten hours in any one
day; and g 2, sa we have seen, forbids their
employment in those places for a longer
time. If, therefore, we take the taw at its
word, there can be no doubt of its purpose,
and the supreme court of the state haa
added the conflrmation of its decision, by
declaring that "the aim of tlie statute is
tain industries. Tbe act makes no attempt
to fix the standard of wages. No maxii
or minimum wage is named. That Is left
wholly to the contracting parties." [71
Or, 275. L.R.A. 1917C, 1162, 139 Pac 731,
Ann. Cas. 19160, 1008J
It is, however, urged that we are not
bound by the declaration of the law or the
decision of the court. In other words,
to use counsel's Innguage, "the legislative
declaration of necessity, even if the
followed such declaration, Is not binding
upon this court. Coppage t. Eaniu,
U. a 1, 00 L. ed. 441, i:..RJL191GC 0«0. 8S
Sup. Ct Rep. 240." Of courae, mere decl*-
in cannot give character to a law nor
turn illegal into legal operation, and when
such attempt is palpable, this court necw-
sarily bas the power of review.
But does either the declaration or tha
deeislon reach such eztremel Plaintiff in
error, in contending for this and to estab-
lish it, makes paramount the provision for
overtime; in other words', makes a limita-
of the act tbe extent of the act, — in-
deed, asserts that it gives, besides, cbar-
:ter to the act, — illegal character.
To assent to this is to ascribe to the legla-
tation such improvidence of expression aa
to intend one thing and effect another; or
artfulness of expression to disguise illt^
purpose. We are reluctant to do either,^
and we think all*the provisions of the law^
can be accommodated without doing either.
First, as to plaintiff in error's attack
upon tiie law. He says; "The law Is not
a ten-hour law; it is a Ihirteen-hour law
designed solely for the purpose of com-
pelling the employer of lalior in mills, fao-
tories, and manufacturing establishmenta
_ ij more for labor than the actual mar-
ket value thereof." And further: "It is
n-hour law (or the purpose of taking
the employer's property from him and giv-
ing it to the employee; it is a thirteen-hour
law for the purpose of protecting the health
of tlie employee." To this plaintiff in error
adds that he was convicted, not for work-
ing an employee during a busy season for
more tiian ten hours, but for not paying
lilm more than the market value of hia
The elements in this contention it la
difficult to resolve or estimate. The charge
of pretense against the legislation we, as
we have already aald, cannot assent to. The
assumption that plaintiff in error was con-
victed for not paying more In a busy sea-
son than the market value of the services
rendered him, or that, under the law, ha
will have to do so, he gives ua no evldene*
to support It there waa or should he an
increase of demand for his products, there
might have been or may be an increase of
profits. However, these are circumstaneea
that cannot be measured, and we prefer ta
consider with more exactness the overtim*
provision.
Tliere is a certain verbal plausibility in
the contention tliat it was intended to per-
mit thirteen hours' work if there be fifteen
and one-half hours' pay, but the plausibiU
Ity disappears upon reflection. The provi-
sion for overtime is permissive, in the sam«
sense that any penalty may be said to b«
permissive. Its purpose ia to deter by ita
,A_^OOglC
ISIS.
B0NTIKO T. OREGON.
437
burdeo, and its adequacy for tliii wu 4
matter of legislative judgment under the
j_ particular circumstances. It may not
Kacbieve its end, but its inHufflcIency cannot
• cliange its cliaracter'from penalty to per-
miasion. BesideB, it is to be borne in mind
tliat th« legislature was dealing with ■
matter in which many elementa wera to be
considered. It might not have been possi-
ble, it might not have been wise, to make a
rigid prohibition. We can easily realize
that the legislature deemed it auffielent for
its policy to give to the law an adaptation
to occasions diSerent from special cases of
emergency for which it provided, — occa-
sions not of such imperative necessity, and
yet which should have some accommoda-
tion; abuses prevented by the requirement
of higher wages. Or even • broader con-
tention might tie mads that the legislature
winsidered it a proper policy to meet the
conditions long existent by a tentative re-
straint of conduct rather than by an abso-
lute restraint, and achieve its purpose
through the interest of those affected rather
than by the positive fiat of the law.
We cannot know all of the conditions
that impelled the law or its particular
form. The supreme court, nearer to them,
describes the law as follows: "It is clear
that the intent of the law is to make ten
hours a regular day's labor in the occupa-
tions to which reference is mad& Appar-
ently the provisionB permitting labor for
the overtime on express conditions were
made in order to facilitate the enforcement
of ths law, and in the nature of a mild
penalty for employing one not more than
three hours overtime. It might be re-
garded as mure diCHeult to detect viola-
tions of the law by an employment for a
shorter time than for a longer time. This
penalty slao goes to the employee In ease
the employer avails himself of the over-
time clause."
But we need not cast about for reasons
for the legislative judgment- We are not
required to be sure of the precise reasons
for its exercise, or he convinced of the wis-
dom of its exercise. Rast v. Van Deman
k L. Co, 240 U. S. 342, 36G, SO L. ed. 679,
690, L.RJ>.1017A, 421, 36 Sup. Ct. Rep.
370. It is enough for our decision If the
legislation under review was passed in the
^exercise of an admitted power of gorem-
• ment; and that it Is not as complete a**it
might be, not as rigid In Its prohibitions
as it might tie, gives, perhaps, evasion too
much play, is lighter In Its penalties than
it might be, is no impeachment of its
legality. This may be a blemidi, ^rlng
opportunity for criticism and difference in
cbaraeterixatitm, but the eonaUtutloiial t»-
lidi^ of legislation cannot be determined
by the degree of exactness of its provisions
or remedies. New policies are usually
tentative in their beginnings, advance in
firmness as they advance in acceptance.
They do not at a particular moment of time
spring full-perfect in extent or means from
tiie legislative brain. Time may be neces-
sary to fashion them to precedent cuatoma
and conditions, and as they Justify them-
selves or otherwise they pass from militancy
to triumph or from question to repeal.
But passing general considerations and
coming back to our immediate concern,
which is the validity of the particular
exertion of power in the Oregon law, onr
Judgment of it is that It does not transcend
constitutional limits.
This case ia submitted by plaintiff in
error upon the contention that the law is »
wage law, not an hours-of -service law, and
he rests his case on that contenUon, To
that contention we address our decision and
do not discuss or consider the broader con-
tentions of counsel for the state that would
justify the law even as a regulation of
wages.
There is a contention made that the law,
even regarded as r^ulating hours of serv-
ice, is Dot either uecesaary or useful "for
preservation of the health of employees in
mills, factories, and manufacturing estab-
lishments." Tlie record contains no facts
to support the contention, and against it
Is the judgment of the legislature and the
supreme court, which saidi "In view of ths
well-known fact that the custom in our in-
dustries does not sanction a longer service
than ten hours per day, it cannot be held,
as a matter of law, that the legislative re-^
quirement is unreasonable or arbitrary oan
to hours of labor. Statistics * show that*
the average daily working time among
workingmen in different countries ia, in
Australia, S hours; in Britain, 9; in the
United States, 0]; In Denmark, 93; in Nor-
way, 10; Sweden, France, and Switzerland,
lOJ; Germany, lOi; Belgium, lUly, and
Austria, 11 ; and in Russia, 12 hours,"
The next contention of plaintiff in error
is that the law discriminates against mills,
factories, and manufacturing establish-
ments In that it requires that a manufac-
turer, without reason other than the fiat
of the legislature, shall pay for » com-
modity, meaning labor, one and one-half
times the market value thereof white other
people, purchasing labor in like manner in
the open market, are not subjected to the
same burden. But the basis of the con-
tention is that which we have already dis-
posed of; that la, that the law regulates
wages, not hours of s«rvic«b Kegaiding it
.A^iOOglC
438
37 SUFRKMX OOUBT REFORTEB.
Oct. Tebm,
M the Utt«r, tltere ii • bula for tli« olud-
ficAtion.
Further discussion we deem unneceBatry.
Judgment affirmed.
The Cbhf Justtob, Hr. Justice Tan De-
vsDter, Rnd Hr. Justice McRvjaalOa, dia-
SOLOMON KBNOFSKEY.
PoBT Omca 4=985~0rTKRSEs — Use or
MirfJ> lo DKVBAin>.
A life itiBurADce mgent who, In pur-
■uance of a Bcheme to defraud the insur-
ance company, delivered to his superior of-
ficer a fraudulent death clain], supported
by false proofs, knowing that the claim
would (as ia fact it was) be mailed by the
latter in the tuual course of business to the
home office for approval before payment,
thereby violated the provisions of the Unit-
ed States Criminal Code, { 21&,* for the pun-
ishment of anyone who, having devised any
scheme or artifice to defraud, shall, for the
purpose of executing such scheme, "place
or cause to be placed" any letter, pacfcage,
or writing in any postoffice, to be sent or
delivered by the postofflce establishment.
rild. Not*.— Tor otber cm*. ■•• Port OOee,
Cat. DIS. I tl.]
[No. W.J
IN BRROR to the District Court of the
United States for the Eastern District
of Louisiana to review a judgment aiiatain-
ing a demurrer to an indictment which
charged a scheme to defraud by the use of
the mails. Reversed and remanded for fur-
ther proceedings.
See same case below, 235 Fed. 1010.
The facts are stated in the opinion.
Assistant Attorney General Warren for
plaintiff in error.
No appearance for defendant in error.
Hr. Justice HoKenna delivered the opin-
ion of the court:
Indictment charging a scheme to defraud
by use of the mails, in violation of 3 215
of the Criminal Code. [36 Stat, at L. 1130,
^ehap. 321, Comp. Stat. 1013, g 10,336.]
t| The indictment is In the usual volume
• of Buch'inatruments, but may be sulltciently
summarized aa presenting the following
facts:
Kenofslcey was t^e sgent and asristaiit
superintendent at New Orleans, Lonisiana,
of the life Inanranoa Company of Virginia.
It was part of his duty to obtain certificatea
and proofs of death of persons insured ia
the company and also to view the remains
of deceased policy holders, have them iden*
tified, and deliver the certificates and proofs
of death to the superintendent of the local
office at New Orleans, to be forwarded in
the usual course of buainess through tfa*
United States mails to the home office of tha
eompany at Richmond, Virginia. In pursu-
ance of a fraudulent scheme Eenofskey
falsely represented to the insuranee com-
pany that he had received and obtained a
valid and genuine claim, proof of death and
certificates executed, signed, and presented
by Sarah Thompson, the beneficiary in a
policy which had been issued upon the life
of one Frederick Wicker. Kenofslcey signed
the certificates as assistant superintendent.
Frederick Wicker is still living, and Kenot'
skey knew that all claims required the ap-
proval of the main office and were to be
transmitted fnxn the local office through
the United SUtea mails, and, if handed by
him to the superintendent, would be so
transmitted, and, for that purpose, he de-
livered the proofs to the superintendent.
The superintendent examined them, and,
without knowledge of their fraudulent
character, ofiixed his signature thereto, in-
closed them In an envelop, and deposited
them, postage paid, in the United States
A demurrer was filed to the indictment,
stating as grounds thereof that it was not
sufficient to constitute a violation of % 21S
of tha Criminal Code of the United SUtea,
properly construed and understood, or of
any other law of tiie United States,
The demurrer was sustained, the oonrt-
giving as its reasons therefor the following:^
• "The depositing of the letter In the mail*
for the purpose of executing the scheme is
the crime. The defendant did not mall the
letter, and the local superintendent of tha
insurance company was not his agent. It is
charged it was the duty of the defendant
either to prepare for mailing or to actually
mail the papers. Hs is sought to be held on
the theory that, as he knew the claim would
he mailed to the home office, in the usual
course of the business, for approval before
payment, he knowingly caused It to be de-
posited. This theory is too far-fetched to be
tenable. Furthermore, in order to consti-
tute a crime, the mailing of the letter must
have been a step in the execution of the
fraudulent scheme. The scheme deviaed
by defendant was completely executed when
he handed the false claim to the local agent
at New Orleans.
"However desirable It may be from the
vierwpoint of the victim to try alt perpe-
A^iOOglC
1918.
OHIXED STATES v. EXN0FSEB7.
traton of fTSudulent Mhemea In tlio Fed-
eral courta, thU court cannot """"■ juris-
dictioD except in clear caBw.
"The demurrer will b« *uataiQed."
This appeal wu then proseonted under
the Criminal Appeals Act of March 2, 1907
<34 Stat, at L. lUO, chap. 2G64, Comp.
Btat. 1013, S 1704).
Section 215 of the Criminal Code is as
follow* :
"Whoever, having devised , , . any
•eheme or artifice to defraud . . . shall,
for the purpOH) of executing such scheme
or artifice or attempting %a to do, place, or
eauie to be placed, anjr letter, . . . pack-
age, writing, ... in any poetofflce,
. . . to be Bent or delivered b; the poet-
«fflce eatabliehment of the United SUte^
..." shall be punished, etc.
The short point in the caae 1« whether
the facts charged show that Eenofekey of-
fended against the statute. Hie district
court was of opinion that they did not, for
two reasons: (1) ^e superintendent at
New Orleans was not the agent of Eenof-
^■key. (2) j 215 it directed at steps in the
T execution of fraudulent sohemes, and the
• scheme devised by Kenofelcey was complete-
ly executed when he delivered the false
claim to the local agent at New Orlwns.
We are nnahle to concur. The word* of
I 216 are "place, or coms (o 5« placed,
[italics onre} any letter, . . . package,
writing, ... in any postofflcai ... to
be seat «r ddivered. . • . '
"Cause" {• a word of very broad import
and ita meaning is generally known. It
is used in the section in its well-known
sense of bringing abou^ and in such sense
it is applicable to the conduct of Eenofskey.
He deliberately calculated the effect of giv>
ing the false proofs to his superior officer;
and the effect followed, demonstrating the
efficacy of his selection of means. It cer-
tainly cannot be said that the superintend-
ent received authority from the insurance
company to transmit to it false proofs. Ha
became Kenofskey'e agent far that purpose
and the means by which he offended againal
the provisions of the statute. Demolli t.
United Stales (C. C. A. eth C.) 6 LJLA.
(N.S.) 424, 75 C. C. A. 365, 144 Fed. 363,
7 Ann. Gas. 121.
We do not think the scheme ended when
Kenofskey lianded the falsa proofs to lUs
superior officer. As said by the Aiaistant
Attorney General ; "Tlie most vital ele-
ment in the transaction both to the insur-
ance company and to £eiiofske{y remained
yet to become an actuality, L a., the pay*
ment and receipt of the money; ..."
Such payment and receipt would indeed
have axecDtad the scheme, but they would
not have served to "trammel up the cmse-
quence" of the fraudulent use of the mails.
Judgment reversed and cause remanded
for further proceedings In eonformitj witk
this opinhw.
>v Google
440 87 SUPREME COURT KEPORTEH.
(Ml O. a. no
SEABOARD AIB LINE BAILWAT, PUT. In
ElT.,
Ooi. Tau,
J. a LOSICE.
Courts ^=>S09(2>— Ebbob to State Coubt
— FoLLOWINO DBGiaiON BlXOW — QUBS-
TioN roB Jury,
A unanimous ruling of Uie highaat
court of B. atata that the trial court had
properlT left to the jurj* & caee brought
under uie Federal Employer*' liability Act
of April 22, ia08 (36 St«t. at L. S6, chap.
149, Oomp. Stat 1913, {{ 8667-8665). will
not be disturbed by the Federal Supreme
Court on writ of error nnlcM clear and pal-
pable error ia shown.
[No. 7S2.J
IN ERROR to the Supreme Court of the
State of South Carolina to review a
judgment which, on a eeoond appeal,
firmed a judgment of the Court of
Pleaa of Lexington County, in that state,
In favor of plaintiff in an aetim under the
Federal Employer!' Liability Aot. Affirmed.
See tame case below, on firat appeal, 102
S. C. 276, se S. E. 676.
The fa«U are stated in the opinion.
Ur. J. B. S. Lyies for plaintiff in arror.
Messrs. Frtuilc G. Tompkins and George
■jBell Timmerman for defendant in error.
* * Mr. Jnatlce Brandets delivered tike opin-
ion of the court:
The Federal Safety Appliance Acta (at
supplemented by Act of April 14, 1010,
ehap. ISO, 36 Stat, at L. 290, Comp. Stat.
1913, S 6621) prohibit a carrier engaged in
Interstate commerce from hauling a car
with a defective coupler, if it can be re-
ps4red at the place where the defect is dis-
covered. United SUtes v. Erie R. Co. 237
U. B. 402, 400, 69 L. ed. 1010, 1023, 36
Sup. Ct Rep. 621. The Seaboard Air Line
Railway received such a car at one of Its
yards. Lorick, the local car inspector and
repairer, who discovered the defect, under-
took to make the repairs, as waa in the
llns of his duty. To do so it was neecssary
to raise the couplflr; and for this a jack
was the appropriate appliance. None hav-
ing been furnished him, he sat do«n under
the coupler and raised it with his shoulder,
which was thereb;^ seriously strained. Oc-
casion to make similar repairs had previ-
ously arisen at this yard at short intervals.
Lorick had for this purpose repeatedly
asked the chief car inspector for a jack;
ftnd a few weeks before the accident had
been promised one. Loiick sued the com-
pany under the Federal Employers' Lia-
bility Act, in a state court of South Caro-
lina, and testified to the facts above stated.
The case was tried twice before a jury
and was twice reviewed by the supreme
court of South Carolina. At the first trial
the court directed a nonsuit on the ground
that Lorick had assumed the risk. The su-
preme court set aside the nonsuit (192 S.
C. 276, 86 S. E. 675), holding that, in view
of the promise to supply a jack, the ques-
tion of assumption of risk should have been
left to the jury, citing McGovern v. Phila-
delphia A R. R. Co. 235 U. S. 389, 69 L.
ed. 283, 36 Sup. Ct. Bep. 127, 8 N. C. C.
A. 67. At the second trial defendant asked^
for a directed verdict on the grounds bothg
that Lorick had sasnmed the'risk and that*
there was no evidence of n^ligence on de-
fendant's part. This request being refused,
the case was submitted to the jury under
instructions which were not objected to;
and a verdict was rendered for plaintiff.
Defendsnt'e exceptions to the refusal to
direct a verdict were overruled b^ the su-
preme court. The case comes here on writ
of error where only these same alleged er-
rors may be considered.
The appellate court waa unanimous in
holding that the trial court had properly
left the case to the jury. Xo clear and
palpable error is shown which would justify
us in disturbing that ruling. Great North-
ern R. Co. V. Ejiapp, 240 U. S. 464, 466,
60 L. ed. 74S, 761, 36 Sup. Ct. Rep, 399;
Baltimore ft 0. R. Co. v. Whitacre, 242 U.
S. 169, 171, 61 L. ed. 228, 37 Sup. Ct. RepL
33. Tbe judgment is affirmed.
(2a O. S. 613)
HENDERSONVn-LE LIGHT * POWER
COMPANY and Saluda -Henderson ville
Interurban Railway Company, Plffs. in
CouBTs «=b394(10)— Error to Statk Codbt
— DEcreioH op Federal Qubbtioh— Dub
Process or Law.
1. A decision of the highest court of a
state sustaining the condemnation of cer-
tain water rights of riparian owners who
asserted that such condemnation would be
the taking of private property without due
process of law, contrary to U. 8. Const.
14th Amend., is reviewable In the Federal
Supreme Court, although the etate court
discusses only matters of state law, a dis-
senting judge, however, intimating that the
taking intringed the Federal Constitution.
[Ed. NotB.-For other c- " " '^-"*
Dig. 1 105G.1
I, iM Ooorta, Cent.
«=,F<.r Olher case, wo swne topic ft KBT-NOMBKa In ell KST-Numl»r.d Dlttsta ft Ina«» ^
ISIO
BENDEBSONVILLB LIGHT k F. 00. v. BLUE RIDGE L B. OO.
Ml
EUnnENT Doiunr <s=»20(e)— Fnsuo Dbx
— ' Genekatiho Electbig Poweb fob
Stbeet Railwat CouPAnx — Sals of
SuBPLoa Power— DwE PBocK9s or L.*w,
2. The condemnation of certain water
riglits Ijj a street and interurban railway
««DpaDj, coufonnablj to the local law, can-
not b« said to be for a piivaU lue, and
hencA wanting In due proceu of law, on the
ground that the contemplated worke will
produce much more power than will be
needed for the railway, and that tiie com-
pany's charter empowera It to lell tha aur-
pluB power, where the taking, according to
the flndingd of the itate courts, was with
intent in good faith to carry on the public
buBineig authorized by the charter, i. e^ to
^uild and operate a railway between pointa
named, and it waa further found that it
■wta neceaaarj to generate electric power on
the atream in order to operate the railnaj',
that the proceeding wae for a public use,
and that, in order fully to develop the com-
IN ERROR to tha Supremo Court of the
State of North Carolina to review a
judgment which, on rehearing, affirmed a
judgment of the Superior Court of Hender-
«on County, in that state, condemning cer-
-tain water righto. Affirmed.
See aame caae below, 171 N. 0. 814, 88
B. E. 24S.
The facts are atated In the opinion.
HeBSrs. Michael Gchenck, C. P. Sanders,
J. C. Martin, Thomas S. RoIliUB, and George
H. Wright for plaintiffs in error.
Messrs. Charles W. Tillett, Horace h.
Bomar, William A. Smith, Jamaa E. Ship-
man, and Thomas C. Gutiirlo for defend-
* * Mr. Justice Holmea delivered the opin-
ion of ths court:
This is a special proceeding to condemn
tbe wat«r rights incident to laud belonging
to the plaintiffs in error upon a bow of
Qreen river. It baa resulted in a Judg-
ment of condemnation subject to the pay-
ment of «10,000. The peUUoner, the de-
fendant in error, owns land on tbe side of
the stream opposite to that of the plain-
tiffs in error, the respondmits, and on both
•ides of the stream above and below that
land. It proposes to cut off the bow by a
4am above, and a steel flume that re-enters
the river below that land, all upon ita own
fround. Hie respondent! in their answer
■it up that the condemnation In this man-
ner and for the purpose alleged would be
the taking of private property without due
process of law, in violation of the litli
Amendment, and we assume that the record
diecloaes a technical right to come to this
court. Minneapolis 1 St, L. R. Co. t. Min-
nesota, 193 U. 8. 63, 62, 48 L. ad. 814, 618,
24 Sup. Ct. Rep. 396; American Sugar Ref.
Co. V. Louisiana, 179 U. S. 89, 91, 46 L. ed.
102, 103, 21 Sup. Ct. Rep. 43. The decision
of the supreme court In auatainlng the con-
demnation discusses only matters of state
law, but the Chief Justice, dissenting, inti-
mated that the taking Infringed tbe Con-
stitution of the United States. 171 N. C.
814, 86 S. E. 24G.
The defendant in error, the Blue ^dg«
Intern rban Railway Company, seems to
have been incorporated with power to build
and operate a street and interurban rait-
way from Henderson ville through Saluda
to a point on Green river, and to extend Its
lines to any other pointa not exceeding SO
miles from Saluda; also with power t«
maintain a water power plant on Green
river for the purpose of generating eleo-
tricit; to be used In operating the railway;
and with all other powers granted by the
laws of the state to corporations of that
character, including all rights of condemna-
tion and tha right to sell and dispose of,
the surplus electric power generated at Itsg
plant. It'haa also a somewhat general au-*
thority to eonstruct buildings and factories,
operate machinery, etc.; but limited, as we
understand it, to acta expedient for the
proper prosecution of the objecta for which
the corporation was created.
Thla taking, according to the findings be-
fore us, was with intent in good faith to
carry on the public business authorized bj
the charier, — that is, to build and operate
a street and Interurban railway between
points named. It is found further that It
was necessary to generate electrlo power on
Green river in order to operate the rail*
way; that tbe present proceeding was tor
a public use, and that in order fully to de-
velop the Blue Ridge Company's water pow-
sr on Green river for the above-mentioned
purposes, it was neeeasarj to condemn the
rights in question. Subject to provieos
that were held to have been satisfied, and
that ars not in question here, a statute of
1907, as amended in 1B13, authorised street
and interurban railways situated as the
petitioner waa to condemn water power.
The objection that is urged against this
statute and the charter as applied in the
present caae is that taking the whole water
power Is unnecessary for the purposes of
the railway, that the plan is a covert devlea
lor aelllng the greater part of tbe power t»
mlll^ that this last la a print* uae, and
«=iFi>r other cases ■•• same topic A KBY-NUMBSR In all Ke7-Numt>n«d plieaU .
"evoogle
442
S7 SUPRKUB OOUBT &ZPOETEB.
OOT. TwKIt,
that th« two objaeti bdng w iatamlnglad,
the Uking mmt f ftU.
We tra ufted to go beblnd the flndlsg
that the taMnf wsa for a pnblio ve, on
the ground that the charter aotborlzea tha
•ale of cnrpltu power, that the oootwi-
plated worlu will {ffodnca fifty thoxwand
hoTM-power, and that thU, acoording to the
aridenee, la much mora than will be needed
for the railway, fint the mrplna la a mat-
ter of estimate, and no reaaoB la ehown for
ovr not accepting the flndiuga below,
are In no way warranted in aMnming that
^the tale of enrphu power, if there ia any,
g la the real object of the eDterpriM, or any-
■*thiDg more than a'poasible Inddoit, necea-
Mi; to prevent waate, of the primary pub-
lic nae. Forthennore, if there an likely
to be ench aalea, nothing appeari infllcieat
to take the case ont of the ecope of a recent
dedelon of thli eourt. Ut. Vemoo-Wood-
barry Cotton Duck Co. y. Alabama Inter-
atate Power Co. Z40 U. S. 30, 82, 90 !•.
ad. 607, 611, 86 Sup. Ct. Bep. 284.
Judgment affirmed.
UNTTED STATES OF AUEBICA, PUT. In
T"08TBR L. DAVIS.
BuBBzziAiiENT 4=a21— By Diputx Clxbk
The ooaversi<ai by a depu^ clerk of
Oie district court of the United Btatea for
the territory of Hawaii to hig awn ua
mon«7a of peraooa other than the United
SUte^ depoeltad with the clerk of that
Inal Code, | B7,> declaring that "any officer
of the United Statee, or any aaaietant of
euch officer, who shall embezile or wrong-
fully convert to hie own nee aoy money or
property which may have come into hie poe-
■esslon or under hie control in the execu-
tion of euch office or employmeDt, . . .
whether the same ehall be the money or
property of the United Statee or of lome
other person or party, ehall, where the of-
fense u not otherwise punishable by some
statuU of the United BUtw," be SaeA or
imprisoned, or both, since, irtietiMa- the
moneys In question belonged to the United
States or to the clerk, they did not belong
to the deputy clerk,
[Bd. Not!.— For other essw. see ■mtessle-
msnt. Cent. Di|. H U-»-]
[No. 821.)
Submitted April 11, 1017. Dedded AprU
23, 1017.
IN ERBOR to the Diatrlot Court of the
United Btatea for the Territory of
Hawaii to review a Jndgmat which mu-
tained a demurrer to an Indlctmoit char-
ging anboKlemant by the deputy clerk ol
inch Diatriet Court. Rerarsed.
The faeta era etated in the opinion.
Asslatant Attorney Oensral Warren for
plaintiff in error.
No appaaranea for daf«idant In arror-
Mr. JuaUce Holmea ddiTared the api^tm
of the court:
Thli le an Indlctmoit of a deputy clerk
of the dUtrict court of Hawaii for eonvert-C
Ing to hia own uea moneys ot'peraona otharP
than the United BUte^ depoeltad with the
clerk to aecora the paymmt of costs, by
parties to proceeding! other than procaed-
Ings In bankruptcy (counts I, 8, ^ 7, 8),
or by partiea to proceedings In bankruptcly
[counts 2, S, 0). The sixth eount ehargea
the defendant, aa clerk, with a like conver-
sion. A demurrer to the indictment was
■nitained and the United Statee brings the
case here. The judge assumed that the costa
referred to in the several counts were feea
of the clerk, and. we preatmi^ In case of
proceedings in bankruptcy, fees collected for
the referee and truatae, and also that tha
funds were funds to be accounted for by tha
clerk aa debtor, not as trustee, under tha
decision in United SUtes v. Uason, 218 U.
S17, 631, 64 L. ed. I18S, 1138, 31 Sop.
Ct. Rep. 28. He therefore waa of opini<ui
that the money waa not within tha purview
of I W of the Penal Code [36 Stat, at
L. 1106, chap. $21, Comp. Stat. 1913.
I 10,267], punishing the embesilement of
money belonging in the registry of the
oourt, etc. Tie same reasoning led him to
the conclusion that j 07 did not apply, and
It is the latto- proposition that the United
Statea seeks to have revised.
The judge objected that the charges in
the indictment did not follow the language
of I 97, but as he went on to coneider wheth-
the statute applied to the facta alleged,
we shall deal with the latter question. Con-
cerning the eufSoienqr of the indictment in
other aspects, of course, we hare nothing to
s^'. By ■ AT "any officer of tlie United
States, or any aaelstant of such ofllcer, who
shall embeiale or wrongfully convert to hie
uM any mon«y or property which may
have eome into hia possession or under hia
control in the execution of such office or em-
ployment, . . , whether tha same shall
be the money or prf^erty of the United
Statea or of soma other peraon or party,
shall, where the offenee is not otherwiae
punishable by some statute of the United
States," be fined or imprisoned or both. If^
as assumed, the defendant was not punlah-^
^le under | BO, be waa punishable nndarg
tUa. * Aa pointed out by t'
U«ladaes.
ViOOglC
OHEQON * CALIFOBMIA E. 00. ▼, UMITED BTATBS,
1910.
th* ocmrt Mow smoib to 1ut« orerlookad
the Ikct tlikt, except in tiie dzUi connt, the
defendant i» alleged to hmve baon an uaUt-
Mt clerk, not the clerk. Whether It be*
longed to the United SUtes or to the olerk,
the money was not liii «nd the oua U with-
in the wordi just quoted from the net. We
oanfine our decision to the point raised by
the aasignment of error; upon thAt the de-
daian was wrong.
Judgment rereraed.
Mr. Joatice MciK«niut dlssento for the
reoiona given hf Judge Morrow.
<H3 n. s. US)
OREGON * CALIFORNIA RAILROAD
COMPANY et al
UNITED STATES OF AMEEICA.
Affeal and Essob *=1207(4)— Oompli-
Asci wrra Mandatk — Violation or
OovBHAai IN Kailwat Land Qbaht—
BzTXNT or BSLUX.
1. A daorea of a Federal dlitrict oourt
which, in addition to rsstraining lales b;
certain railway eompanies in violation of
the covenants in the oongrcMional land
Eant acta that the lands granted shall
■old to actual lettlera only, in quan-
tities not greater than one quarter aec-
tl«D to one purelHMer, and at a price not
•xceedlng 92.60 an acre, also enjoined such
oompuiiee from lelllng any timber on said
lands, or any mineral or other deposits
therein, except as a part of and in conjunc-
tion with the land Itself, and, except In con-
nection with tbe sals of the land, from cut-
ting or removing or authorising the cutting
or removal of any of the timber thereon, or
from removing or autltorieing the remoraJ
of mineral or other deposits therein, was
warranted by the mandate of the Federal
Supreme Court, which, having reversed a
pnor decree of the diatriet court, had re-
manded the cause for further proceedings
in accordance with the opinion of the Su-
preme Court, whers suah opinion expressed
the view that the railway conpaniea should
not only be enjoined from future salee in
violation of the covenants, but should be
enjoined from any disposition whatever of
the landa or the timber thereon, and from
cutting or authorizing the cutting or re-
moval of such timber until Congress should
have reasonable opportunity to provide by
l^slation for their disposition.
[SO. Mota.—For otliar esMS, ■•• Appeal and
Bmr, C«Dt. Dls. | 4B».]
OoHBTrrtiTioNAi. I^w «=»277(I)— Due Pk(j-
CBss or Law— VtSTM Riohib— Eailwai
Land Gtiant— BKroBcmo FiarouuRCX
or COVBITANTB.
2. Vested ri|^ta of railway companies
whose disregard of the covenants In certain
landa granted ahaJl be sold to actual set-
tlers only, in quantities not greater than
one fuansr section to one purchaser, and
• CoiuUtutlanal
' ftt a price not exceediiu 12.60 an aere, had
made the landa more mvitiiig for specula-
tion than for settlement, were not destroyed
without due process of law by the enact-
ment, in the exercise of the reserved power
to alter or repeal, of the provisions of the
Act of June 9, 1918 (S9 Stat, at L. 218,
chap. 137), which revest the title to the
unsold lands in the United SUtes, excepting
rights of way and lands in actual use for
depots, sidetracks, etc, and regulate the
disposition of such lands and the distribu-
tion of tho proceeda, securing to the rail-
way companfea 92.60 an acrc^ less any off-
sets properly chargeable against the railway
companies on account of prior sales, the
use of the timber, the sradjng of taxation,
etc.
[Bd. Not*— For otlisr a
Law. Cenl. Dig. | TO,]
PuBuo Lands C=990— Mobtoaoe of Bail-
wjiT Laud QnAni^RiaHTB of Tbhstee.
8. Righta acquired Iw fbe trustee foi
bondholders under a mortgage executed bj
a railway company upon the lands embraced
in its congreuional land grants were sub-
ject to the obligations of the railway com-
pany to keep, and to the power of the
government to exact performance of, the
covenants in these grants that the lands
rnted shall be sold to actual settlers only,
quantities not greater than one qnartar
section to one pnrehaser, and for a price not
exceeding t2.60 an acre.
[Sd. Nata.— For other cassa, §•• Pabllo Iduda
Cant, Dig. I 273.)
TJinntD States «=147— Appeai^-Cowb —
WHEW United States ib Paett.
4. Ihe costs of an appeal to the Federal
Supreme Court In a ease in whieh the
United States Is a par^ should not be al-
lowed to the United States I^ the decree of
a Federal diatriet court, enisred pursuant
to the mandate from the Supreme Court,
where the latter oourt did not, and could
not, make any orders respecting such costs,
becausft of the declaration of Uie Supreme
Court rule 24, that the provisions of that
section giving costs to the prevailing party
do not "apply to cases where the United
Stataa are a party; but in suoh caaes do
costs shall be allowed In this court for or
againat the United SUtes."
dStuil^iiZ '"^" "^ •" """^ *"^
[No. 492.]
Argued March 8 and fl, 1B17. Decided April
23, 1917.
O",
N A CERTIFICATE from, and WRIT
OF CERTIORARI to, the United States
Circuit Court of Appeals for the Ninth Cir-
cuit, bringing up for review a decree of »
District Court for the District of Oregon,
enjoining certain railway companies from
aelling any part of the lands granted to
them by Congress in violation of the cove-
nants In the land grant acts, and from dl^
M SM ume topic k KET-NT7IISBB In all Eer-Nnmbered Dlnits * Indaiai
.gic
n SUPREME COUBT BBFORTEB.
Oct. TEUt,
posing of tkoy of the timber, or minenil, or
other depout*. JUHrmed.
The fact* nre stated in the opinion.
Mesara, P. F. Donne, WUliam F. Her-
rlu, William D. Fenton, and Frank C.
Cleary for the Oregon & CaUfmnia Railroad
Compsn; et al.
Mr. Perry D. Trafford for tli« UdIou
Trust Company.
Special Assistant to the Attomejr Qeneral
Smyth and Solicitor General Davii for
tlie United States.
^ Mr. Francis J. Een^ as amicus eurin.
8 .
■ Mr. Justice HoKenna delivered tlift opin-
ion of the court:
This la the sectmd appearance of the ease
in this court. It is on certificate from and
certiorari to the circuit court of appeals
for the ninth circuit, to which oourt It was
taken by appeal to review a decree of the
district court for the district of Oregon,
entered in fulfilment of the mandate of this
g The decree of the district court was re-
• versed, and the*present controversy is as to
what our mandate required. As expresstng
tbeir different views of it the government
and the railroad eompanj— we shall so refer
to the defendants, except where a distinction
is nscessarj — submitted forms of decrees to
the district court. The court adopted the
decree submitted by the government, and
that action is assigned as error.
The case aa made in this court on iU first
appearance Is reported In 238 U. S. 393-
43S, 60 L. ed. 1390-1397, 35 Sup. Ct. Rep.
908, and contains all of the elements for
the declHion of the questions now presented.
Before detailing those elements we may say
preliminarily tliat the difference between
the decree entered and that proposed by the
railroad company was in the extent of the
restraint upon the company in the disposi-
tion of lands granted in aid of the construc-
tion of certain railroads and telegraph lines.
The acts making the grants contained the
provision that the lands granted should be
sold to actual settlers only, in quantities
not greater than one quarter section to one
purchaser, and for a price not exceeding
fZ.SO an acre.
The decree restrained the railroad com*
pany from selling "to any person not an
actual settler on the land sold to him," with
limitation of quantity and price stated, "and
from selling any of the timber on said lands,
or any mineral or other deposits therein,
except aa a part of and In conjunction with
the land on which the timber stands or In
which the mineral or other deposits are
found; and from cutting or runoving or
authorizing the cutUng or removal of any
at the timber thereon; or from removing
or authoriring the removal of mineral or
other deposits therein, ezc^t in connection
with the sale of tlie land bearing the timber
or containing the mineral or other deposits."
He decree as proposed by tbe railroad
company omltt«d the injunction against sell-
ing the timber and mineral deposits. n
* Upon these differences in the proposed*
and entered decree the railroad company
bases its contention that the latter is not
in accordance with the mandate of this
court, and in support of it it has presented
elaborate arguments to establish a distinc-
tion between land* and the timber on them
and the mineral deposits in them, and that
the command of the acts of Congress to sell
the lands did not ioclude the timber or de>
posits. In other words, it is contended that
the acts of Congress gave the railroad com-
pany "the right of an owner by absolut*
grant to the use of the timber on bis land"
and to avail himself of t^e minerals there-
in; and that, therefore, the restraint that
the district court put upon the railroad
company was In excess of the mandate. "It
was what this court has termed an 'inter-
meddling* with matters outside ol the scope
of the mandate. It proceeded to determine
that tlie railroad had no right to use the
timber upon its land* while th^ were still
unsold and in its possession and occupancy;
it determined that the railroad company
could not even make a clearing in anticipa'
tion of a sale to some settler, or dig out a
ton of coal; and it adjudged that the owner
of the land had no right in the timlier or
the coal except to pass it, as part of the
realty, when It sold ths land to a settler
at 92.S0 an acre."
The complaint is graphic. Its attempted
justification is the assertion of a grant in
absolute ownership. Such ownership is the
foundation of the railroad company's con-
tention, and on this foundation it builds its
argument and upon the insistence that the
lands having been granted, necessarily aa
incidents to them the timber and minerals
on and within them were granted. An im-
mediate and sufilcient answer to tbe conten-
tion would seem to be that the grant was
not abaolute, but was qualified by a condi-
tion in favor of settlers, and that if the
"lands" granted had such incidents, the
"lands" directed to be sold to actual set-
tlers were Intended to have such incidents.3
That la,* if the "lands" granted carried by-
necessary Implication all that was abov*
the surface and all below the surface ta
the railroad company, they carried such
implicatitm to the actual settler. In other
words, what "lands" meant to the railroad
company they meant to the settler, em-
braced within bis right to purchase and
acquire. We are not disposed, however, to
A^^OOglC
A OALIFORNU R. CO. v. UNITED STATES.
It It not 11MMU17 to tnca tlw titla of
the lAndB to the rallroAd compKny. It la
■ufflcient to M7 that the lource of tlie title
wfta an act of Cocgreaa approved July 2Ci,
ISSe, chap. 242, 14 Stat, at L. ES9, aa
amended by the acta ^proved June 2S, 1806,
chap. Bff, 1& Stat, at L. SO; AprU ID, 1869,
chap. Zr, la But. at L. 47; and Ifay 4,
1870, chap. 09, IS SUt at L. 94, which acta
franted lands to aid in the constmetion of
certain railroadi and telqp^ph lines. The
Act of 1869 contained this proviao: "And
provided further. That tho landa granted by
the act aforesaid [Aet of 1808] aball be
■old to actual Bettlers only, in quantitiee
not greater than one quarter aection to one
purchaaer, and (or a price not exceeding two
dollara and fifty eanta per acre." There
waa a like proTigioD In tha Act of 1870.
The government brought auit tgainat the
railroad company, alleging that these provi-
•oa constitutwl conditions anbsequent, char-
ging breaches of the omdltions by the com-
pany, and praying for a forfeiture of the
nniold lands.
The railroad company denied that the
proriaos were to be so ooaetrued, and al-
leged that they constituted restrictive and
unenforceable covenants, and set up other
Tha district court adopted the view of the
government as to the provisos, and entered
a decree forfeiting the lands, and tha case
came here for review.
The contentiona of the government and
^the railroad company were repeated In this
• Qonrt, and It waa, besides,' contended that
tha provisos only applied to lands suscepti-
ble of actual settlement and cultivation, and
did not include timber lands.i
We rejected the contention of the govern-
ment; we rejected in part the contention
of the railroad company, saying: "Our con-
clusions, then, on the contentions of the
government and the railroad company are
that tiie provisos are not conditions subsa-
quent; that they are covenants and enforce-
aUe."
But how' enforceahlaT And what was the
remedy for breachesT — and breaches there
were, many, gross, and determined. It was
■ lliera were oroas complainants and In-
torvenera, tha first aasertlng that the provi-
•OB created trusts In favor of actual set-
tlers, and the second that the trust had the
■oope of including all parsons who desired
to make actual aettlements upon the landa.
The decree of the district court and tha deci-
aion here were adverse to both oonteotiona,
and this case has no further ooncem with
thssn or with thoaa who made them.
certainly not intended to be decided that
these breaches, with all of their cona^
quencea, ware to be put ottt of view and Uie
railroad company only enjoined against fu-
ture breachea. Yet this, in effect, is the con-
tention, and It Is attempted to be eupported
by certain language in the opinion. Befora
quoting it we may say in general that mnch
that is dted from It must be considered in
reference to tha ccmtroversiea which were
presented, and that the granting seta and
their proviaos were necesarily construed aa
of the time of their passage. Action under
them end the breachea of them came after-
wards, and a consideration of the remedies
to which the government was entitled.
Keeping this comment in mind we can mora
easily understand tha language of the opin-
ion in description of the grant and In rq^ard
to the relief that waa awarded tha govam-
Aa to tha grant, this waa said— and It
la much inalated on: "There waa a com*
pleta and absolute grant to the railroad com-
pany with power to sell, limited only asS
•prescribed, and wa agree with the govem-r
ment that the oompany 'might choose tha
aetoal settler; might sell for any price not
exceeding IZ.60 an acre; ml^t aall In
quantities of 40, SO, or 100 acres, or any
amount not exceeding 160 acraa.'" And
we added: "It might choose the time of
sale or its use of the grant aa a means of
credit, eubjeet ultimately to the restrictions
imposed; and wo say 'restrictions imposed'
to reject the contention of the railroad com-
pany that an implication of tha power to
mortgage the lands carried a right to sell
on forecloeare, devested of the obligations
of the provisos."
Thia deolarea the meaning of tha words
of the acta, talcen by themselvea. It polnta
out the power of the railroad company and
that It waa "limited only aa prescribed."
It does not point out the remedy of the gov-
ernment if the limit preaeribed was tran-
scended. For that we must look to other
parte of the oplni<m. We took pains to de-
clare that the principles of the case were
"not in great compass," that circumstances
had given "perplexity and prolixity to dla-
cusaloD," but had not contused tha simple
words of the acta of Congress, regarded
either as grants or as laws, and that they
were both, and, aa both, they conferred
rights quite definite and imposed obliga-
tions as much 80, — the first having tba
means of acquisition; the second, of per-
formanea. And we gave onphs^ to tbam
aa laws and tha necessity of obedience to
tbtaa aa such, the remission of their obliga-
tion to be obtained "through appeal to Con-
greaa," and not by an evaaion of then or •
daflanoa of tham.
,A_^OOglC
M6
t7 SDPRSMS COURT RBPORTBB.
Ooi. iBif,
Th« «TuioDi uid dttflkiiea wa atiowBd, ud
Uie exUnt to which thej- tniwcmded the
policy Mid puipoH of the goTemmont «i-
preued In the eoveiuuita. W« cootruted
tlw reqniremeDt ol the gruita oi m wJe to
ftn actual settler of 180 ftcres {maximum
amount] with salM of 1,000, 2,000, 20,000,
«uid 46,000 jLdea to tingle purchaaerB, and
tSthe lue of the lands for bomea with their
* VM for immediate* or •pecuUtive enter-
prisea. The relief the goTermnent waj en-
titled to, we said, wai not latisfied bj pre-
serving its rights to the lands aold, and we
further said that "an InjuncUon simply
agsinat future Tiolatlona of the covenants,
or, to put it another way, aimply mandatory
of their requirementa, will not afford the
meBBUre of relief to whioh the facta of the
case entitle the goTemment"
The TiaMm wae ezpresaed. The gorem-
ment alleged, to ahow a disregard of the
covenanta, that more than 1,000 persona had
applied to purchase lands from the railroad
Munpany in conformity with the corenanta.
The company, replying, said the applications
were not made in good faith for settlement,
but for speculation, the landa being valua-
ble only lor their timber, and not being fit
(or settlement; and further alleged that at
no time had the lands Qt for actual aettle-
■nent exceeded 300,000 aere^ In widely sepa-
rated tiaota, and had been sold during the
oonstruction of the road and prior to its
completion to astual sattien in the pre-
acribed quautltiea and at the preaorjbed
We have seoi that other aalea were made
in quantitiee in ezceaa of that preacrlbed
by the statute, and not for settlement^ at
prices from 95 to (40 an acre, and that at
the time the answer was filed there remained
nnaold over £,000,000 acres, the raaaon^le
Talue of which was 930,000,000. There waa
BO Intimation that the lands did not In-
elude the timber, and it was not only recog-
nized but asserted that the lands were more
valuable for the timber than lor settlement.
Our judgment toolc esxe of the altuation.
It preaerved the remedies of the goveru-
ment for past violatlcHta of the granting
acta and recognized that new dlqiaaitions
were ucceasar; to seonre the rights that had
accrued to the government. We said that,
owing to the "conditlona now existing, inci-
^dent, it may be, to the prolonged dlar^ard
got the eovenauta by the railroad company,
• the lands'invite now more to specnlatlon
than to aettlement, and we think, therefore,
that tbe railroad company should not only
be enjoined from sales in violation of the
eovenanta, but enjoined from any dlapoal-
tlon of them whatever or of 1A« Hmier tker»-
oa, imd froM cutttnf or removing ang of the
Mmber thtrttm, until Congraaa shall hava a
reasonable opportnnltf to provide 1^ legis-
lation for their dlqioution in aeoordanea
with auch policy as it may deem fitting
under the oircumatancea, and at the same
time secure to the defendants all the value
the granting aeta conferred upon the rail-
The design of this and U» adequa^ would
seem to need no comment. It was intended
to be a guide to the district court, — Indeed,
a directitm of the decree of the court. The
decree complied with the direction. See
Southern Or^on Co. v. United States (cir-
cuit court of appeals, ninth circuit, decided
Feb. 13, 1B17].
Congreaa, In tha axeeutiiHi of the polity
it deemed fitting under the olreumatancett
aa expressed in our opinion, enacted what
is called the Chamberlain-Ferris Act of June
9, 1916 (39 Stat at L. 218, chap. 137).lg
The validity ol tha>act Is cliollenged and*
both aides invite a determination of tba
ahalleoge. The validity of the law may be
said not to be Involved. The i^peal I* from
the decree, and, tbat being determined to
be right, the appeal, it may be urged, is
aatlafled; the questions it presents dedded.
It, bowsver, may be considered Important
in the eiecuticm of the deoreck for we have
seen that the granting acts were laws os^
well as grants, had tiie strength and opera-a
tion of laws, •subject to amendment 11 the*
right of amaidment existed or accrued.
There was a reservation in them of the
right of alteration or repeal, and if it could
not he exerted to take bade what had l>e«n
granted and Iiad vested, it could be exerted
to accomplish the remedy which the court
adjudged to the government for the viola-
tion by the railroad company of the provi-
aione of the grants. It Is no answer to the
exertion of the power and remedy to say
that the acts of Congress were initially com-
plete and absolute grants. It is to be boma
In mind that they carried with them col*-
nanta to l>e performed and ueeeaaarlly oa
obligation to perform them, with remedlea
for breaches of performance. Such was our
judgment, aa we have seen, and the judg-
ment was adapted to the ocmditiona oreated
by the breaches, and for Uiia i^islation was
deemed necessary.
But the railroad company aaya that tlie
legislation directed was to have its consent,
and that such consent "was eaaential to
the valid resumption or alteration of ita
vested rights," and that this was what this
■ The provisions of the act, so far aa they
affect the railroad, may be annunarised ••
follows:
It recites, among other things, that Uib
court had ordered that the railroad ccb-
pany be enjoined from 'inaklng farther salsa
of lands in vlidaUan of the law," and hutk
,A_.OOglC
1*16.
QREOOSr * OALIFOBNU B. CO. v. UNTTSD STATBS.
eonrt meint whan It MUd "tliKt uj legli-
lation tn the pramiBM bj Congreu ihould
'■eeure to tbi defendMita all the Tkloa the
(ranting Acta oonferred npoo tlia ntl-
We hiTB alrekdj anawerad the eonten-
tiont. The lallToad oompkoj, bj pnahing
into Tleir tlie lighta eooferred hj the gr^nt-
ing aeti and putting out of view the wrong!
eommitted t^ It, ema euHj bnild an argu-
ment upon and invoke the inTloIabillty of
Toated rlgbta; and to aa^ Qtat ita conient
waa necewarj to leglalaUoa ta to ea^ that
It oonld dictate the remedy for iU wronga,
preclude or embarrM* the policy of the
government.
Hie Intereet that tfao granting aota oon-
farred upon tho railroad company waa (2.00
•n aere. That aeeured to It, "all the value
the granting acta oonterred" upon It waa
^aeeured. It ii true it had the right of
gaal^ aelection of time, and aettler. If theae
• were righta, they were alao alda'to the duty
•I tranamitting the landa to aattlera; and,
tha doty having tieen violated, they became
unsuitable to the conditiona resulting and
obatruotlon* to the relief whioh had accrued
to tho government. In other words, by tlie
eondnet of the railroad company the policy
of Uio granting aota had beeonu imprao-
ticablo ol performance, and the new condi-
provlaion than that preacribed by the grant
ing acts. This waa the declaration and dl>
rectloD of our Judgment, and the Chamber*
lain-Ferrla Act ia the axecutlon of it.
Tho Union Trust Company waa one of
the defendanta in the ault and ia one of tho
parties hero. It was beard liy its own coun>
aol at the bar and through brief. In the
main its argument la tha same aa that of
the railroad company, varied somewhat in
detail, and asaerta that It has not only the
righta of the railroad, but, "in addition and
Mpeotally, that even if it be poesible for
the government now to take away righta
onoe conveyed to the railroad, U connoI
takt than tactpt tubjtet to the !««■ of th*
Ptortgage."
So far aa tha rl^ta of the truat company
coincide with tlioae of the railroad com-
pany we have considered them, and they
cannot be greater than those of that com-
pany. The railroad company, it is tme,
could use tha lands aa a basis of credit, but
only to tha extent of its interest In them,
subject to the performance of its obligationa
and the power of tha government to ezaot
their performance.
e were careful to observe thia aubordi-
nation. We expreaaed tha extent of the
or enjoined from "making any sales what-
ever ol either the lands or the timber there-
on until Congreaa should have a reasonable
opportunity to provide for the diapoeition
•f aaid landa," ate., and enacta that the
title to so much of the lands as had not
and lands in actual use by the railroad tor
depots, sidetracks, eto. (| 1). The lands
shall be divided into three dasaes: power
altes, timber lands, and agricultural lands
(I 2). The timber shall be sold by the
Becretary of the Interior at aueh times and
In auch manner aa may eeem best, and the
landa from which it ia removed Bhali there-
after be classed aa agricultural lands (S 4>.
iia landa dasaed as agricultural shall be
aubjeot to entry under the homestead laws,
but patents shall not Issue until the landa
have been cultivated for Uiree rears (| S).
The Attorn^ General ia autltorlsed to Insti-
tute proceedings against tlie railroad com-
pany and others to have determined the
amount of moneya already received by the
railroad company or ita predecesaora on ae-
eount of aales, etc., of the granted landa, and
which ahould be charged a^ainet it aa part
nf the "full value" aeeured to the granteea
under the granting acts aa heretofore in-
terpreted 1^ thia court. In making snoh
determination the court shall take into con-
^deration all moneys received from sales
of lauds or timber, forfeited contraota, rent,
tlmbar depradationa, and intarast on oon-
traeta, or from any source relating to the
landa, and also the value of the timber from
the lands and used by tbe grantees or their
succeaaors. In auch auita tlie court ahati
alao determined the amount of taxes on the
landa paid by the United States, aa provided
in I 9 of the act, and which ahould have
been paid l^ the railroad, and the amounts
thus determined shall be treated sa money
received by the railroad company ( J 7 ) . Tbt
title to all moneys arising out of tha
granted landa and now on deposit to await
the final outcome of the suit commenced by
the United States in pursuance of the joint
resolution of April 30, 1Q08, ia hereby vest-
ed tn the United States, and the United
States is subrogated to all rights and reme-
dies of the obligee or obligees under any
eontraot for the purehaae of timber on tha
grant lands (S S). Frovieion is made for
the payment by the United SUtes of accrued
taxea on the lands revested by the act (§ 9).
The proceeds of the timber and the lands
shall be deposited in the Treasury of tha
United States, and be paid to the railroad
or tha lien holders as the fund accumuiatea,
and at the end of ten years an appropria-
tion shall be made from the geseral funds
of tha Treasury of the United States to pay
any balance which may be due to the rail-
road (i 10). The profits derived from the
transaction shall be paid one quarter to
t^ atata of Orwon and one (quarter to tha
eountiea where t£e landa are situated, whlla
one halt shall b« retained by tha govern*
moit (I 10).
A^^OOglC
S7 SOTBEME COURT KBPOKIEB.
Dot. Tebh,
fntereat tliat the rsilroa4 eompaaj raoelvad
ftnd that "it might chooie the tima (or Mil-
log or it« use of the giant aa % means of
credit," but, ve also said, "subject ulti-
matelj to the restrictions imposed." And,
further, ve said " 'reatiictioas imposed' to
reject the contention that an implication
of the power to mortgage the lands carried
A right to sell on foreclosure, devested of
£the obligation! of the provisoi."
iP 'The case wbb responded to as it was pre-
sented, and no phase of it was omitted
presentation or responM that could influenee
Its judgment. Of what was In the minds of
counsel, determinlDg and urging their con-
tentions, of what was in the mind of the
court in response to the contentions,
the opinion leaves no doubt, and that after
the fullest consideration of all that wai
Tol*ed of rights and remediea, the judg-
ment was pronounced.
A distinction la now attempted to Im
made between a sale of the lands and the
use of the lands, including In the use of
them the right to cut the timber upon them
and extract minerals (coal and iron) from
them. Such use, It Is asserted, is a n
Maiy incident of ownership, and that such
use was not intended to be taken away nor
could it have been taken away hj our judg-
ment.
To answer the contentions would be mere
repetition of what we have aaid. The dis-
tinction now made between the lands and
their use is but the contention urged
the first iq)peal and rejected, — that the pro-
visos onlj applied to lands susceptible of
actual settlement, and not to timber lands.
The distiDction then was between the lands;
now, between their constitntiug elements,
and for the same reason: to give to the
railroad company and the trust company
what the granting acts did not give;
rather, gave for the purpose of transmission
to actual settlers. This transmiaslon be-
coming impracticable, other dispositio)
the lands, including all that la signified by
tlie word, was adjudged.
The Trust Company also attacks the
Chamber lain -Ferris Act and is assisted In
the attack bj a "friend of the court." The
attacks have the same basis as that which
we have noticed, — that is, the rights of
the railroad company arc asserted to be
vested and inviolable. The contention gets
a semblance of strength from the ability of
^counsel. To yield to it would be in effect
gto declare that covenants violated are
• BUne as covenants performed,— wrongs done
the same as rights exercised, — and, by con-
founding these essential distinctions, give
to the transgression of the law what Its
abservance is alone entitled to.
Tke decree of tha district court taxed
costs against the railroad company, and
this is assigned as error. Tiie amount is
lUted to be 90,249.02. So far as this sum
includes costs on the (ormer appeal we
think there was error. The railroad com-
pany was compelled to appeal from the de-
cree againat it. The decree was reversed
and no costs were awarded for or againat
it, and could not have t)een under rule 24
of this court The rule gives costs to tha
prevailing party in eertaln cases. The pro-
vision, however, does not "apply to case*
where the United States are a party; but
in such cases no costs shall be allowsd la
this court tor or againat the United States."
Our mandate was in accordance with the
rule, and the decree should not have award-
ed costs to the United States. To that
estent it is erroneous and should be modi-
fled by deducting the costs which were In-
curred in this Dourt; and, so modified. It is
affirmed.
TTniTBD States «=>Z1— Oonokess — Goii-
TEMPT— Gknebal Powbb to Pohish.
1. The distinotion between l^slatlvg^
executive, and Judicial powers, recognized
by the Federal Cbnetitution, and the express
limitations in such Constitution, n^atlve
any implication of the possession by Con-
gress of the commingled legislative- judi-
cial autliority as to contempts whidi is
exerted In the ^glish House of Commons.
[BO. Mote.— Tor other ckms, is* TInJted atatM^
C«it. Dig. I U.1
Dkitbd Statm «=21— OoMoiffias — Con-
TxuPT— Power to Pukish— luputuTioii
raou NKCBssrrr.
B. Power to deal directly by wi^ of
contempt without criminal prosecution majr
be Implied from the constitutional grant <d
legislative power to Congress in so far, and
BO far only, as such authority is necessary to
preserve and to carry out the l^islative
power granted.
[Ed. Note,- B\ir other caat*. — United States
CsdC. Dig. I 13.]
Uhitxd States «=>21~CoHaBEss — CoM-
TBltPT— PU MIBHUB ST.
8. Punishment for contonpt as punish-
ment for the offense was not embraced in
the authority to deal directly I^ way
of contempt nithout criming proaecu-
tion, implied from the constitutional grant of
legislative power to Congress, since such
power rests only upon ^e right of self-
preservation, 1. «., the right to prevent acts
which, in and of themselves, inherently ob-
struct or prevent the discharge of legisla-
tive duty, or the refusal to do something
Ic & KBY-NUUBSR In all Kar-Numbared DKa
its*I«l«™[(^
»1«. MARSffHT.T. y. GORDON. M»
whlcli there ia ui inherent legklatlve power i Mtesra. D-Cadj Herrtck, UstUb W.
to compel, in order that l^BlatiTe function! Lltttaton, uid Hcniy U. Qoldfc^Ie for kp-
may be performed.
[Ed. Note.— For oUiar c«Ma. Ma CnltKl SUtai,
CcDt. Dls. 1 11.}
DmTED STATca «=s21— CoHOBEas — Con-
1XHFT— Extent or Punibuuxnt,
4. Imprisonment only, and for a term
not exceeding tlie seasion of the body '
whifh tlie contempt occurred, il the Hi
of the Huthority to deal directly by way o(
contempt without ertminal proaeeuiioa, tm-
tilied from the conitltutioDal grant of 1egi»
fttive power to Congreu in ao far aa such
authority ii naceaaary to prMerve and to
early out the l^ialative poww gi«iit«d.
[Bd. Nota.— for ottier cum, ■•• United Statei,
Cent, Dig. g 12.]
IjKrrED States «=i21— Cokgeess — COK-
TEilPT— POWKB TO PUKIBH— PAST COH-
DXIOT.
5. Congragsional antboillj to deal di-
Mctly by way of contempt wiuiout criminal
prosecution with acts which interfere with
tlie preaerration of ita legislative authority
doe* not ceaae to exiat merely because the
act complained of may have been ctnnmitted
before the authority Is exerted.
[Bd. Note.— For other esMa, ■•• Dnltad Btatai,
Cent. DIs. | U.)
United St&tbs «s921— Gorobebs — OoN-
TKMFT— POWEB TO PUNIBH—PDBLIOaTIOIf
or DETAiuTa&T Lettek.
e. The implied power of the House of
ItepresentatiTes to deal directly by way of
contempt, without criminal proaecution,
with acta, the prevention of which ia necea-
■ary to preserve and to earry out ita legis-
lative authority, does not embrace the pun-
Ishment, sa for a contempt, of the action
of a Federal district attorney in writing
and publishing a letter addressed to the
diairmsn of a subcommittee of the House,
eontaining matter defamatory to the House
or the committee, even conceding that the
Bonse was considering, and its oommittee
eontemp latin g, impeachment proceedings
against that official.
[Bd. Not*.— ror other caaea, ms United Statei,
CeaL Dig. i la.]
[No. eo«.]
Arpud Deeember II and 18, ISIS. Decided
April 23, 1017.
APPEAL from the Diatriot Court of tha
United SUtes for the Southern Dis-
trict of New Yorlc to review an order refus-
ing relief by halDcaa corpua to a person un-
der arrest fM' an alleged cmitenipt ol the
Honsa of Rapreeentattves. Ravened, with
directions to discharge the rdator from mw-
tody.
See same ease below, 23fi Fed. 422.
The facta are stated In the opinion,
Ueasrs. Obarles P. Spooner, Jeaae C.
Adkina, and John C Spocnar for appel-
pellee
'Mr. Chief Justice Wbite delivered the*
opinion of the court:
Iliese are the facta: A member of the^
House of Repreaentatlvea on the floolg
charged the appellant, who waa the district*
attorney of the southern district of New
Yorlc, with many aota of miafeasance and
nonfeasance. When this waa done the
grand jury in the southern district of Now
Voric was engaged in Inveatigating allied
illegal conduct of the member in retation to
tha Sherman Anti-trust Law July 2, 1800,
c. 047, 26 Stat 200 and asserted illstal
aetivliies of an organiiation known t»
Lsbor's National Peace Conncil to whldi
the member belonged. Hie inveatlgatlon aa
to the latter subject not having been yefc
reported upon by tha grand jury, that bodj
found an Indictment against the member tor
a violation ol the Sherman Law. Bubs*-
queatly calling attention to his previona
charges and stating others, tiie member re-
quested that the judiciary oommittee be di-
rected to inquire and report ooneeming the
charges against the appisllant in to (ar as
they constituted impeachable oCTenees. Aftar
t^ adoption of tills resolution a subcom-
mittea was appointed which proceeded to
New York to take testimony. FrietiMi
thsre arose between tlie subcommittee and
the office of the district attorney, based upon
tlie assertion that the subcommittee waa
seelclng to unlawfully penetrate the pro-
ceedings of the grand jnry relating to the
indictment and the Inveatigntiona in que*-
tion. In » daily newspaper an artlela
appeared charging that the writer was in-
formed that the subcommittee was endeavor-
ing rather to investigate and frustrate the
action of tiie grand jury than to investigate
the conduct of the dbtrict attorney. When
oalied upon liy the subcommittee to disclose
of his informant, the writer de-
clined to do so and prooeedings lor oon-
tempt of the Houae were threatened. The
district attorney thereupon addressed a let-
ter to the ehainnan of the subcommittee,
avowing that he was the Informant referred
to in the article averring that the oharges
were true, and repeating them in amplifled
form in language which was certainly un-
parliamentary and manifestly ill-tempered,
and which waa well calculated to arouse the g,
indignation not only of the members of g
the**ubcommlttee, but of those of the House *.
generally. Thla letter waa given to the
preai so that it might be published con-
temporaneou^y with Its receipt by Um
chairman of the subcommittee. The judi-
itary committee reported tJie matter to the
House and a select committee was appointed
■ as* sam« toptc * KBT-HUHBBB Is all Ber-Nnssbsred Dlfssts * Indosa
igic
4M
37 SUFREUE COUBT BXPORTER.
Ooi. Teku,
to oonaidBT tli« auLJaet. Tli* diatriet aUor-
Mj wkB e^led before tluit comnuttee »nd
reasserted the chkrges made In tbe letter,
averring that tfaej were justified hj the clr-
ennutuicee. Mid stating that thej would,
under the same conditions, be made agsin.
Thereupon the select committee made a re-
port and stated its concliuions and reoom-
mendations to the House as follows:
"We conclude and find that the aforesaid
letter writtwi and pnbllshed bj said H.
Snowden Marshall to Hon. C. C. Carlin,
chairman of the snboommittAe of the judl-
eiaij committee of the House of R^resea-
taUvea, on Uareh 4, 1B18, . . . is as a
whole and in several of the separate sen-
tences defamatory and insulting and tends
to bring the House into publio contempt and
ridicule, and that the said H. Snowden
Marshall, by writing and publishing the
•ame, Is guilty of contempt of the House ol
Eepresentattvea of the United States be-
oauee of the violation of its privileges, its
honor, and it* digni^."
Upon the adoption of this report, under
the authority of the House a formal war-
rant for arrest was issued and its execution
hj the Sergeant at Arms in New Yoric was
followed by an application for discharge on
habeas oorpus; and the eorrectneee of the
judgment of the oourt below, refusing the
same, la the matter before us on this direct
^ipeal.
Whether the House had power under the
Constitution to deal with the conduct of
the district attorney In writing the letter
as a contempt of its authority, and to in-
M flict punishmoit npon the writer for such
S contempt aa a matter of l^slative power,
* that is, withoat subjecting him to thettatu-
tory modes of trial provided for criminal
offeneee, protected by the limitations and
Mf^^uards whieh the Constitution imposes
aa to such subject, is the question which is
before us. There is unity l>etweea the par-
ties only in one respect; that is, that the
existence of constitutional power Is the sole
matter to be decided. As to all else there
is entire discord, every premise of law or
authority relied upon by the one side being
challenged in some respects by the other.
We consider, therefore, that the shortost
way to meet and dispose of the issue la to
treat the subject as one of first impression,
and we proceed to do so.
Undoubtedly what went before the adop-
tion of the Constitution may be resorted to
for the purpose of throwing light on its
provisions. Certain is it that authority
■ras possessed by the House of Commons in
Bugland to punish tor contempt directly,
that la, without the Intarrsntlon of courts,
and that such power included a variety of
Mta and many forms of pmlahment, Indud-
ing the right to fix a prolonged term of im-
prisonment. Indubitable also Is it, however,
that this power rested upon an assumed
blending of legislative and judicial author'
ity possessed by the Parliament when tbe
Lords and Commas were one, and con-
tinned to operato after the division of the
Parliament into two houses, either because
the intorblended power was thought to con-
tinue to reside in the Commons, or by the
force of routine the mere reminlscenoe of
the oommingled powers led to a continued
•zerciea of the wide authority as to con-
tempt formerly existing long altor the
foundation of judicial-legislative power
upon which it rested had ceased to ezlsL
liiat this exercise of the right of legislative-
Judicial power to exert the authority stated
prevailed In England at the time of the
ftdi^tion of the Constitution and for some
time aftor has been so often recognised by
the decided cases relied npon and by deci-
sions of this court, some of which are Inn
the'margin, 1 as to mslie it too certain for*
anything but statement.
Clear also la it, however, that in the itaU
governments prior to the formation of the
Constitution the Incompatibility of the In-
termixture of the legislative and judicial
power was recognised and the i^.uty of sepa-
rating the two was felt, as was manifested
by provisions contained in some of the staM
Constitutions enacted prior to the adoptiim
of the Constitution of the United States,
aa illustrated by tiie following artjclea in
the Constitutions of A&ryland and Massa-
chusetts !
"That the house of del^fates may punish,
by imprisonment, any person who shall lie
guilty of a contempt in their view, by any
disorderly or riotous behaviour, or by
threats to, or abuse of theit members, or
by any obstruction to their proceedings
They may also punish, by imprisonment,
any person who shall be guilty of a breach
of privil^e, by arresting on dvil process,
or by assaulting any of their members, dur-
ing their ^tting, or <m their way to, or re-
turn from the house of delegates, or by any
assault of, or obstruction to their officers,
in the execution of any order or process, or
by assaulting or obstructing any witness, or
any other person, attending on, or on their
iCrost^'s Case, S Wlls. IBS, 95 Eng.
Bcprint, 1006, 2 W. BI. 764; Burdett ».
AUjot, 14 Bast, 1, 104 Eng, Keprint. 501.
6 Dow. P. C. 166, 3 Bng. B^)rint, 1289, 4
Taunt. 401, 128 Eng. Reprint, 384, 12 K*-
vised Bep. 460; Stoekdals v. Hansard, •
Ad. & EL 1, 112 Eng. Reprint, 1112, Z Perry
kD.l,iUJ. Q. B. N. S. ZB4, 3 Jur. 90S-,
Anderson v. Dunn, 0 Wheat, 204, 6 L. ed.
242; Eilboum v. Thompson. 10> U. 8. IttS,
Z« L. ed. 377.
A^^OOglC
l»ia.
MARSHALL T
QOKDON.
4SI
wa.j to or from the hoiu^ or bf rcaculng
maj person eommlttad by tha honaa: knd
tha sen«te ntdj axeroise the aama power, In
aimilftT cues." Md. Const ITTS, ftrt. IE.
"They [the hoiue of representKtiTee] shall
hmre authoritf to puniah bj Imprteonment
ererj person, not lb member, who shell he
guilt; of disrespect to the house, b; uxj
disorderly or conteniptuoue behavior ii
presence; or vho. In the town vhere the
» general court is sitting, and during the
g time of ita sitting, shall threaten harm to
* the*bod7 or estate of any of its members,
for anything said or done in the house; or
who shall assault any of them therefor;
or who shall assault or arreat any witnaas,
W other person, ordered to attend the house,
1b his way in going or returning; or who
■hall rescue asy person arrested by the or-
der of the house.
"And no member of the house of repre-
■antatives shall be arrested, or held to bail
on mean process, during his going unto,
returning from, or hla attending the general
"The senate ahall hare tha same powwa
la the like caaes; and the governor and
eonnoil ahall haya the same authority to
pni^ah in like easea: Provided, That no
impriaonment, on the warrant or order of
tiie goremor, council, senate, or house of
repreeentatlTea, for either of the above-de-
■eribed offensee, be tor a term exceeding
thirty days." Const Maaa. 1T80, pi S, chap.
1, I 3, arta. 10 and 11.
The eimilarlty of the provisions points to
the Iden^ty of the avil which they were in-
tended to reach. Clearly thsy operate to
deetroy the admixture of judiotal and legis-
lative power aa prevailing in the House of
Commons, since the provisiona in both the
■tate Constitutions and the limitations ac-
Mmpaoying them are wholly incompatible
with judicial authority. Moreover, as un-
der state Constitutions all goremmental
powsr not denied is possessed, the provisions
were elsftrly not Intended to give legisla-
tive power as such, for full legislative power
to deal with the enumerated acts as crlmi-
nal offenses and provide for their punish-
ment accordingly already obtained. The ob-
ject, therefore, of the provisions, could only
have been to recognize the right of the legis-
lative power to deal with the particular
acts without reference to their violation
«f the criminal law and their susceptibility
of being punished under that law because
S of the necessity of such a legislative au-
la thorlty to prevent or punish the acts In-
* dependently,*becauM of the destruction of
legislative power whldi would arise from
nch acta if such authority was not po»-
MBMd.
How doanlnant th«M vlawi wan mb b«
miasnred I^ the faot that in various other
states almost eontemporwieouslj with tha
adoption of the Constitution similar pro-
visions were written Into their CoHtltii-
tiona and eontinuad to be adopted until it
is true to aay that they became, if not uni-
versal, certainly largely predominant in the
aUtea.a
No power was expressly conferred by tha
Conatitntion of the United States on the
aubjeet except that given to the House to
deal with contempt committed by its own
members. Article 1, | S. As the rule eon-
oeming the Constitution of the United
States is that powers not delt^ted were
reserved to the people or the states, it fol-
lows tliat no other express authority to deal
with contempt can be concaved of. It
conies, then, to this: was such an authori^
implied from tiie powers granted! As it is
unthlnkshle that In any ease from a power
expressly granted there can be implied the
authori^ to destroy tha grant made, and
aa the possession by Congress of the com-
mingled leglslatlTe-judlcial authority as to
eont«inpta which waa axnted In tha EouM
of Commons wonld be absolutely destmctlvs
of the distlnetion batweui legislative, execa-
tive, and judicial authority which Is inter*
woven in the very fabric of the Constitution,
and would disregard express limitationa
therein, it must follow that there is no
ground whatevw for assuming that any tm-
plieatlon aa to snch a power may be de-
duced from any grant of auUiorlty made^
to Congress by the ConstitutioBb This eon-M
elusion has long sinee been •authoritatively •
settled and is not open to be diapnted. An-
derson V. Dunn, 8 WhsKt 204, S L. ad. £48)
Kllboum V. Thompson, 108 D. B. IBS, ES
L. ed. S77. Whether the right to dsa] with
contempt in the limited way provided in
tha state Conatltntiona may be Implied in
Congreas as the result of the l^elattra
power granted must d^end upon hcv far
such limited power te anelllwry or incidental
to the power granted to Congress,-—* anb
Jeet which wo shall hereaftar approadi.
The nils of eouttitutional Interpretaticv
announoed In M'OuUoeh v. Maryland, 4
Wheat aiS, 4 L. ed. 619, that that whidi
was reasonably appropriate and relevant
to the exereise of a granted power was to
be considered as accompanying the grant,
has been so universally applied thiLt it snf<
floes merely to etate it And «■ there la
-„ -k, tat.
1, % 13; UOZ, Ohio, art 1, I 14; 1816, In-
diana, art. 3, j 14; 1817, MlssisaippI, art
8, I 20; 1818, Illinola, art 8, t IS; 18H>,
Main^, art. 4. pt 8, | 9| IBKO, lUMmiTl, nrfc
A^iOOglc
U2
37 SUPBEME COUBT REf OBTEB.
Oat. Tom,
noULing in tlie Inherent natnTe ol the pover
to deftl with eontempt which otuiH it to be
•n exception to •uch rule, there c&n be no
rauon for refuaing to appl; it to that lub-
Jeot.
ThuB, In AndeiBon t. Dunn, lupra, which
wai on kctiOD for false impriBonment
againat the Bergeont-at-Anne of the House
for having executed % warrant for arreat
iiaued hj that bod; in a contempt proceed-
ing, alter holding, At we have alreadj said,
that the power poaaeBsed by the House of
Commons was incompatibla with the Con-
■titution and could not be exerted by the
House, it was jet explicitly decided that
from the power to legielate given by the
Constitution to Congress there was to be
implied the right of Congreei to preserve
Itself; that is, to deal by way of contempt
with direct obstructions to its legislative
duties. In Eilbourn r. lliompeon, supra,
which was also a case of false impriBon-
ment for arrest under a warrant isBUed by
order of the Houbc in a contempt proceed-
ing, Blthough the want of right of the House
of RepreseDtatives to exert the judlcial-
legistative power pOBseBsed by the House of
Commons was expressly reiterated, the ques-
oi tion was reserved as U> the right to imply
S an authority in tlie House of Bepresenta-
tives to deal with contempt as to a'subject-
matter within its jurisdiction, the particu-
lar oaee having been decided on the ground
that the subject with which the eontempt
proceeditiga were concerned was totally be-
yond the jurisdiction of the Housa to in-
vestigate. But In Be Chapman, 168 U. S.
661, 41 L. ed. 11S4, 17 Sup. Ct. Eep. 677.
the principle of the existence of an implied
legislative authority under certain condi-
tions to deal with contempt was again con-
ridered and upheld. The ease was this;
Chapman had refused to testify In a Senate
proceeding, and was indicted under 9 102 of
the Bevieed Statutes (Comp. Stat. 1013,
I 167) making such refusal criminal. He
sued out a habeas corpus on the ground
that the subject of the refusal waa exclu-
sively cognizable by the Senate, and that
therefore the statute was uncongtitutional
U a wrongful delegation by the Senate of
its authority, and because to subject him to
prosecution under the statute might sub-
mit him to double jeopardy; that Is, leave
bim after punislunent under the statute to
bo dealt with by the Senate as for coa-
tempL After demonstrating the want of
merit in the argument as to delegation of
authority, the proposition was held to be
unsound and the contention as to double
Jeopardy was also adversely disposed of on
the ground ol the distinction between the
Implied rl^t to punish for contempt and
the authority to proride lij statute for pun-
ishment for wrongful aeta and to prosecute
under the same for a failure to testify, the
court saying that "the two being diverse
intuitu and capable of standing togettter,"
they were susceptible of being separately
exercised.
And light Is thrown upon the right to
imply l^ielativs power to deal directly by
way (rf contempt without criminal prosecu*
tion with acts the prevention of which is
necessary to preserve legislative authority,
by the decision ol the Privy Couacil in
Kielley v. Carson, 4 Mooi^ P. C. C. S3, IS
£ng. Beprint, 225, which was fully stated
in Kilhourn v. Thompson, supra, but which
we again state. The case was this: Kielleye,
was adjudged by the House of Assembly <rfg
Newfoundland ^ilty o{ contempt for bar- ■
Ing reproached » member "in coarse and
threatening language" for words spol:en in
debate in the House. A warrant was issued
and Kielley was arrested. When brought
before the House he refused to apologise
and indulged in further violent language
toward the member and was committed.
Having been discharged on lubeas corpus
proceedings, he brought an action for false
imprisanment against the Speaker and otlier
members of the House. As a justiJication
the defendants pleaded that they had acted
under the authority of the House. A de-
murrer to the pIcA was overruled and there
was a judgment for the defendants. The ap-
peal was twice heard by the Privy Coun-
cil, the court on the second argument bar-
ing been composed of the IjOrd Chancellor
{ Lyndhurst } , Lords Brougham, Denman,
Abinger, Cottenliam, and Campbell, the
Vice Chancellor (Sbadwell), the L^rd Cbiet
Justice of the Common Pleas (Tindal], Mr.
Justice Erskine, Lushington, and Baron
Parke.
The opinion on reversal was written tiy
Parke, B., who said:
"The main question raised by the plead-
ings, . . . was whether the House of
Assembly had the power to arrest and bring
before them, with a view to punishment, A
person charged by one of Its members with
having used insolent language to him out
of the doors of the House, Id reference to
his conduct as a memlMr of the Assembly,
— in other words, whether the House had
the power, such as Is possessed by botlt
Houses of Parliament In England, to ad-
judicate npon a complaint of contempt ta
breach of privilege."
After pointing out that the power was not
expressly granted to the local legislature
by the Crown, it was said the question was
"whether by law, the power of committing
tor a contempt, not In the presepce of the
Assembly, Is incident to every local legl»
lature."
A^^OOglC
1&18.
MAKSEALL t. GOBDON.
453
2 '^he statute law on thh aubjeet being
• silent, tlie'common law is to govern it; and
what is the common Uw depends upon prin-
ciple and precedent.
"Their Lordsliips see no reason to think
that in the principle of the common
any other powers are given them than such
as are necessary to the existence of such a
body, and the proper exercise ol the func-
tions which it is intended to execute. These
powers are granted by the very act of its
establishment, — an act which, on both
■ides, it is admitted, it was competent foi
the Crown to perform. This is the principli
which governs all legal incidents." And
after quoting the aphorism of the Roman
law to the effect that the conferring of a
given power carried with it by implication
the right to do those things which were
necessary to the carrying out of the power
given, ths opinion proceeded: "In con-
formity to this principle we feel no doubt
that such an Assembly has the right of pro-
tecting itself from all impediments to the
due course of its proceeding. To the full
extent of every measure which it may he
really necessary to adopt, to secure the free
exercise of their legialative functions, they
are just 1 fled in acting by the principle of
the common iaw. But the power of pun-
ishing anyone for past misconduct as a con-
tempt of its authority, and adjudicating
Upon the fact of such contempt, and the
measure of punishment as a judicial body,
irresponsible to the party accused, whatever
the real facts may be, is of a very different
character, and by no means essentially nec-
essary for the exercise of its functions by
• local legislature, whether representative or
not. All these functions may be well per-
formed without this extraordinary power,
and with the aid of the ordinary tribuLials
to investigate and punish contemptuous in-
sults and interruptions."
There can be no doubt that the ruling in
the case just stated upheld the existence of
the implied power to punish for contempt
OB distinct from legislative authority and
3 yet Sowing from it. It thus becomes ap-
• parent that from a'doctrinal point of view
ttie English rule concerning legislative
bodies generally came to be in exact accord
with that which was recognised in Anderson
T. Dunn, 6 Wheat. 204, 6 L. ed. 242, as be-
longing to Congress; that is, that in virtue
of the grant of legislative authority there
would be a power implied to deal with con-
tempt in so far as that authority was neces-
sary to preserve and carry out the legisla-
tive authority given. While the doctrine
of Kielley v. Carson was thus in substantive
principle the same as that announced in
Anderson v. Dunn, we must not be under-
stood as accepting the application which
was made ol the rule to the particular caas
there in question, since, as we shall hero-
after have occasion to show, we think that
the application was not consistent with the
rule which the case announced, and would,
if applied, unwarrantedly limit the implied
power of Congress to deal with contempt.
What does this implied power embracet
is thus the question. In answering, it roust
be borne in mind that the power rests sim-
ply upon the implication that the right has
been given to do that which is eaficntial to
the execution of some other and substantive
nuthority expressly conferred. The power
is therefore but a force implied to bring
Into existence the conditions to which con-
stitutional limitations apply. It is a means
to an end, and not the end itself. Hence
it rests solely upon the right of seif-preser*
vation to enable the public powers given to
he exerted.
These principles are plainly the result of
what was decided in Anderson v, Uiinn, su*
pra, since in that case, in answering the
question what was the rule by which ths
extent of the implied power of legislative
assemblies to deal with contempt was con-
trolled, It was declared to be "the least pot-
eibte pofccr adequate to the end proposstT*
(S Wheat. 231, 5 L. ed. 248), which was
but a form of stnting that as it resulted
from implicntlon, and not from legislative^
ill, the legislative will was powerless toj
lend it further* than implication would*
justify. The concrete application of tlia
deflnition and the principle upon which It
rests were aptly illustrated in Ke Chapman,
186 U. 8. 881, 41 L. ed. 1154, 17 Sup. Ct.
Hep, 877, where, because of the distinction
existing between the two which was drawn,
the implied power was decided not to come
ider the operation of a constitutional liml-
.pplieable to a case resting upon tha
e oC s
mliv
gislativ
Without undertaking to inclusively men*
tion the subjects embraced in the implied
power, we think from the very nature of
that power it Is clear that it does not em-
brace punishment for contempt as punish-
ment, since it rests only upon the right of
self-preservation; that is, the right to pra-
vent acts which, in and of themselves, in-
herently obstruct or prevent the dischargo
of legislative duty or the refusal to do
that which there is an inherent legislative
power to compel in order that legislative
rions may be performed. And the es-
sential nature of the power also makes clear
the cogency and spplication of the two limi-
ns which were expressly pointed out fn
Anderson t. Dunn, supra; that is, that the
power, even when applied to subjects which
justifled its exercise, is limited to impilson-
ment, and such imprisonment may not ba
,A_.OOglC
464
S7 SUPSEUE COURT KXPORTEB.
Oct. iKau,
•xt«nded beyond th* aession of the body in
whfcli the oontempt occurred. Not oiilf the
adjudged cAwa, but congreMioDal ftction in
•DAotitig legiBlktlon %t well u in exerting
the implied power, concluaiTelj suatain the
view* juBt stated. Take, for ioBtance, the
■tatute referred to in Ke CiiapmaD, where,
not at all interfering with the implied con-
gresaional power to deal with the refusal
to give teatimanf in a matter where there
was a right to exact it, the tubstantiTe
power had been exerted to make such
fiual a crime, the two being distinct the
from the other. So, alao, when the differ-
ence between the judicial and legiglativa
Mpowere is conaidered and the divergent ele-
Smenta which, in the nature of thinga, enter
* Into the determination of Vbat is aelf-pres-
•rratlon In the two caiee, the aame result
la eatabliihed b^ the atatutoiy provisions
dealing with the Judicial authorltj to sum-
marily punlah for contempt; that is, with-
out reaorting to the modes of trial required
by constitutional limitations or otherwbe
lor substantive offenaea under the criminal
Uw. Act of Uarch 2, laSl {4 Stat, at L.
487, chap. 99, .Comp. Btat. 1913, g 1246).
Hie l^alatlve history of the exertion of
the implied power to deal with contempt by
the Senate or House of RepresentatlTcs
when viewed comprehensively from the be-
ginning pointa to the diatinctlon upon which
the power rests, and sustains the limitations
inhering in it which we have stated. The
principal instances are mentioned In the
margin,* and th^ all, exoapt two or three,
deal with either physical obstmction of the
legislatire body in the diicliarge of Its
dntiea, or phyaical aaaault upon ita mem-
bers for action talcen or words spoken in
tha body, or obstruction of Ita officers in
the performance of their official duties, or
the prevention of members from attending
•o that their duties might be performed, or
finally with contumacy In refusing to obey
orders to produce documents or give teatl-
mony which there was a right to compel.
■ 17B0, attempt to bribe members of the
House; ISOO, publication of eriticism of
the Soutte; 16&9, aaaault on a member of
tha Housej 1618, attempt to bribe a member
•f the Houaei 182S, assault on the Secretary
to the President In tiie Capitol; 1S32, aa-
aault cm a member of the House; 1836,
aaaault on a member of the House; 1B42,
contumacious witnes; 1857, oontumacious
wltneiB; 1863, contumacious witnesa; 18S9
ecmttimacionB witneaa; 1BS6, assault on a
member of the House; 1866, assault on a
elerk of a committee ol the House; 1870,
assault on a member of the House; 1871,
contamadous witneaa; 1ST4, oontumacioua
wltneaa; 1B70, oontumaclona vritneas; 1804,
•ontomaelona wttnaM; ISU, aaMott on a
In the two or three Instances not embracad
in the classes we think it plainly appears
that for the momant the distinction was
overlooked which listed between the It^is-
lative power to make criminal every form«
of act which can constitute a contempt, toS
be*punisbed according to the orderly process*
of law, and the accesaory Implied power to
deal with particular acta as contempts out-
side of the ordinary process of law because
of the effect such particular acts may have
in preventing the exercise of l^ialative au-
thority. And in the debates which ensued
when the various eases were under con-
sideration it would seem that the difference
between the legislative and the judicial pow-
er was alao aometimes forgotten; that la
to say, the legislative right to exercise dis-
cretion was confounded with the want of
judicial power to interfere with the legla-
lative discretion when lawfully exerted. But
these conaiderationa are accidental and do
not change the concrete result manifested
by considering the subject from the begin-
ning. Thus we have been able to disoorer
no single instance where, in tLj exertion
of the power to compel testimony, restraint
was ever made to extend beyond the time
when the witness should signify his willing-
ness to testify, the penalty or punishment
for the refusal remaining eontrolled by the
general criminal law. So, again, we have
been able to discover no instance, exc^t the
two or three above referred to, where acta
of physical interference were treated aa
within tha implied power unleas they poa-
sesaed the obatructiva or preventive charao-
terlstioa which we have stated, or any cane
where any restraint was imposed after it
became manifest that there was no room for
a legialative judgment as to the virtual con-
tinuance of the wrongful Interf erencee which
was the subject of eonslderatlon. And thia
latter atatement causes ua to say, referring
to Klelley V. CarsoTi, 4 Moore, P. C. C. 8S,
13 Eng. Reprint, 226, 7 Jut. 137, that whera
a particular act, because of ita interterenoe
with the right of self-preservation, comes
within the jurisdicticm of the House to deal
with directly under Ita implied power to
preaervB ita functiona, and therefore with-
out resort to judicial proceedings under tha
general oriminal law, we are of opinion
that authorit? does not oeaae to exist ba-^
cause the act complained of had been com-?
mltted'when tha authority was exerted, for*,
to so hold would be to admit the authority
and at the same time to deny it. On the
itrary, when an act is of such a char-
acter as to subject it to be dealt with aa
a contempt under the implied authori^, we
ars of opinion that jurisdiction is acqolrad
by Congress to act on the anbjeet, and thar*-
fOra there aeeaaaarify results from tUs
,A_.OOglC
lOlC
UARSHALL T. GORD<»T.
4U
ponm th« right to determine, In tlia ne« of
legitimate uid fair discretion, how fai from
the nature and character of the act there
ia neceaeity for reprcMioii to prevent imme-
diate recurrence; that Is to aaj-, the con-
tinued existence of the Interference or oI>-
■truction to the ezerdae of the l^slatire
power. And of oonree in each ease, aa in
•ver7 other, nnleu there tie nanifeat an
absolute disregard of discretion and a mere
exertion of a-rbitrary power coming within
the reach of constitutional iimitatione, the
exercise of the authoritj la not subject to
Judicial interference.
It remaina milj to consider whether the
•eta which were At»it with In the ease in
baud were ol such a eharaeter as to bring
them within the implied power to deal
with contempt; that is, tite acceasorj power
poeseesed to prevent the right to exert the
powers given from being obstructed and
Tlrtaallj destroyed. That the; were not
would seem to be demonstrated hj the fact
that the contentions relied upon in the slab-
orate arguments at bar to snetain the au-
thority were prindpaltj rested not tipon
■ueh assumption, but upon the applieatioo
and controlling fores of the mle governing
in the House of Commons. But aside from
this, coming to teat the question I17 a con-
sideration of the eonduaion upon which the
coDtranpt proceedings were based as is-
pressed in the report of the select commit-
tee which we have previously quoted, BJid
the action of the House of Kepreaentatives,
based on It, there is room only for the con-
elusion that the contempt was deemed to
^ reenlt from the writing of the letter, not
2 because of any olMtruetion to the perform-
* ance of'l^slatlve duty resulting from the
lettw, or Iieeauae the preservation of the
povrer of the House to carry out It* legis-
lative authority waa endangered by its
writing, but tiecause of the effect and opera-
tton whieh the irritating and ill-tempered
statements made in the letter would pro-
duoe upon the public mind, or because of
the aense of indignation which it may be
aaiumed waa produced hj the letter upon
the members of the committee and of the
Hcniae generally. But to state tliis situa-
tion is to demonstrate that the contempt
relied upon was not Intrinsic to the right
«f the House to preawve the means of dls-
diarging Its legislative duties, lint was ex-
trinsie to the discharge of such duties, and
rdated only to the presumed operation
which the letter might have upon the pub-
lie mind and the indignation naturally felt
by membera of the committee on the sul>-
JeeL But theae conaideraUons plainly serve
to mark the broad boimdajy line which
■eparatea the limited implied power to deal
with claasaa of aola as eontsmpts for ieU-
preservatlon and tlia comprehensive leg^-
lative power to provide by law for puniah-
ment for wrongful acta.
The conclusions which we have stated
bring about a concordant operation of all
the powara of the legislative and judicial
departmenta of the government, express or
implied, ae contemplated by the Constitu-
tion. And as this is considered, the reverent
thought may not be repressed that the re-
sult is due to the wise foresight of the
fathers, manifested In state Constitutions
even before the adoption of the Constitution
of the United States, by which they sub-
stituted for the intermingling of the legis-
lative and judicial power to deal with
contempt ai it existed in the House of
(Emmons a system permitting the dealing
with that subject in such a way as to pre-
vent the obstruction of the iegialative pow-
ers granted and secure tl^elr free exertion,
and yet, at the same time, not substantially^
interfere with the great guaranties and limi- j
tations*eoncemlng the exertion of the power *
to criminally punish, — a beneficent result
which additionally arises from the golden
silence by which the framers of the Constl-
tutlon left the subject to be controlled bf
the implication of authority resulting from
the powers granted.
It Is suggested in argument that whatever
be the general rule, it le here not applica-
ble because the House waa considering and
its committ«e oontemplating impeachment
proceedings. The argument is irrelevant
because we are of opinion that the premise
upon which it rests is unfounded. But in-
dulging In the assumption to the contrary,
we think it is wholly without merit, as we
see no reason for holding that If the situa-
tion suggested be f—nmmi^ {( authorised «
disregard of the plain purposes and objects
of the Constitution aa we have stated them.
Besides, it must be apparent that the sug-
geetion could not be accepted without the
conclusion that, under the hypothesis stated,
the implied power to deal with contempt ss
anoillary to the legislative power had bean
tranaformed Into judicial authority and be-
come aubject to all the reetriotlons and limi-
tations imposed by the Constitution iqton
thai authority, — a ctmclusion whieh would
frustrate and destroy the very purpose
which the propoaititm is advanced to
aceompllah and would ereate a worse evil
than that which the wisdom of the lathers
oorreoted before the Constitution of the
United States waa adt^ted. How can this
be esc^ted, since It Is manifest that if the
argument were to be sustained those things
which, as pointed out in Be Chapman, IW
U. S. 061, 41 L. ed. 1154, 17 Sup. Ct. B^
8T7, were distinct and did not therafors
tlM one fnistrat« the otherr-tha InpUad
456
17 SUPREUB COURT R£POKTER.
laglelKtiT* Autbori^ to compd ths giving
of testimony and the right crimiuallj' to
puniih for lailure to do wo, — would become
one and the eftms and the ezerciie of
would therefore be the exertion of, and the
^exhausting of the right to resort to, the
S other. Again, accepting the propoaitioa, bj
■ what proceie of Teaaoning could the'con-
eluslon be escaped that the right to exert
Implied authority by way of contempt pro-
eoedingf in ao far ai essential to pTeserrB
legislative power would become itself an
exertion of legislative power and thua at
once be aubjcct to the limitations aa to
modes of trial exacted by the guaranty of
the Constitution on that subject! We re-
peat, out of abundance of precaution, we
are called npon to consider not the legi»-
lative power of Congress to provide for pun-
ilhment and prosecution under the criminal
laws in the amplest degree for any and every
wrongful act, since we are alone called
upon to determine the limits and extant of
Wi ancillary and implied authority eaaential
ta preserve the fullest legislative power,
lAloh would necessarily perish by operation
of the Constitution if not oonfined to the
particular ancillary atmosphere from which
Alone the power ari«ei and upon which it*
existence dependa.
It follows from what we have said that
the court below erred in refuring to grant
the writ of habeas corpus, and its action
nust be and it is, therefore, reverted, and
the case remanded with directions to dia-
•harge the relator from custody.
And it is so ordered.
041 U. S. an
LOUISVILLE A HA6HVILLB RAILROAD
COMPANY and Atlantic Coast Line Rail-
road Company, Lessees of Georgia Raii<
road ft Banliing Company, et aL, Plffi. in
Err,
O. T. LATTOK.
MASTEn AKD Sebvart ^9lll(l)— Safxtt
AfPLIAnCBa— AUTOIIATIC COTTPUBS— Ev-
PLOTl Not Ooxjsuxa oa tlHConPLiRO
Cabs.
An interstate rallwav carrlv la lia-
ble In damages to an employee injured In
the discliarge of his duty, regardleaa of the
position such employee may have iteoi in or
the work which he may iiave been doing at
the moment when be was injured, wherfe the
carrier's failure to obey tlie automatie
coupler requirementi of the Federal Safety
J4)plianee Acts is the proximate causa of
hia injury. These statutes are not Intended
simply for the protection of cmployoai going
between the cars to couple or uncouple them.
[Ed. Note.— For other cases, see Msatar and
Bsrvaat. cent. Dig. U US. KL]
[No. 840,]
JH ERROR to the Supreme Court of the
State of OeorgiA to review a judgment
which affirmed a judgment of the Superior
Court of Fulton County, in thsj: atste, ia
favor of plaJDtiff in a personal -injury ao-
tion. Affirmed.
See same case Iwlow, 146 Oa. 6SQ, SO S.
B. 63.
The facts are stated in the opinion.
Uessrs. Sanders UcDanlel, E. R. Blacky
P. H. Brewster, and H. C. Peoples for plain-
tiffs In error.
Mr. Marlon Smltli for defendant in er>
Ur. JnsUce Olarke delivered tlie opin-*
ion of tlia court:
The plaintiff below was a switchman la
the employ of the defendants when he suf-
fered the injury for which he recovered tlie
judgment which was affirmed liy the supreme
court of Georgia, and wlkich la liere for r*'
view on writ of error.
The facta aasential to an understanding
of the question presented for decisioa are
as follows:
A train of many cars standing on a switdi
waa leparated by about two t»r lengtha
from five can on the same track loaded
with coal. An engine, pushing a stock ear
ahead of It, came into the switeh, and failed
In an attempt to couple to the five car^
but struck tbem with such force that, al-
though the engine with the car attached
stopped within lialf a car length, the flva
loaded can were driven over the two in-
tervening ear lengths and struck so violently
against the standing train that tlie plain-
tiff, who was on one of the Bve ears for the
purpose of releasing the brakes, was thrown
to the track, with the result that his right
arm was crushed by ths wlieels and waa
amputated below the elbow.
The recovery in the case was on the flirt
count of the petition, which alleges that
the defendants were carriers of interstats
commerce, and that they were negligent,
among other things, In permitting the uas
of ths ear attached to the engine and of
the ear to which the attempt was made to ^
couple It, without such cskrs being equipped g
Vith automatic couplers, which would coupls *
by Impact aa required by law, the claim
being that U the care had coupled when
they came together, the five cars of coal
would not have run down against the others,
causing the ahock. which threw the plalnUS
under the wheels.
The purpose of this allegation with respect
to automatic couplers was to make applies
bis to ths case the Georgia Employers' Lla-
I* topic * KHT-NUItBBB iB SU Kv-Hambersd DlnBls A ladax
19IS.
LOUISVILLE * N. R. CO. t. LATTON.
«S7
UUt7 Act, which proTidei that ui injiiTed
employee sball mt be held gull^ of either
ooutributor; neglifenee or of having aa-
Bumed tlie risk when the TiolBtioo of an;
•tatute enacted for hi* wfet^ contributed
to hla Injury.
The defendftnta admit that they were in-
terstate carrier* of eommerec, and that the
plaintiff WBB In the performance of hi* duty
when he was thrown from the car, as he
claimB, or fell, SB the defendant* claim, but
they deny all allegation* of negligence.
On this Btate of pleading and of tact the
eourt charged the Jury that before the plain-
tiff could recover on hi* allegBtion that the
car* were not properly equipped with auto-
mstle couplers, "he must have ehown to
your satisfaction, by a preponderance of
the evidence," either that the car* had
never been equipped with proper conplerB,
or that, if they Iiad been so equipped, they
were in *uch condition that they would not
eouple automatically by impact, and that
SiKh failure to *o equip tiiem ooutributed
to eauBe the injury.
Upon thi* charge of the court the verdict
wae against the defendant, and on it 1*
based the only claim of error of sufBcient
substance to be noticed.
It is admitted by ths defendants that ths
lefeicnce In the Georgia Employers' Lia-
bility Act to "any statute enacted for the
•afety of employeu" is to the Federal Safety
Appliance Act, and that the charge is a
proper one if that act, as amended, is ap-
plicable to a switchman engaged as the
« plaintiff was when hs wa* injured; but the
* elaim i* that it I* not so applicable because
It Is Intended only tor the benefit of em-
ployees injured when between cars (or the
purpose of coupling or uncoupling them.
This claim ia based wholly upon tbe ex-
pression, "without ths neceaaity of men
going between the ends of eara," following
the automatic coupler requirement of g 2
of the Act of 1863 [27 Stat, at L. 531, chap.
106, Comp. Stat. 1913, J 6606], and it 1*
arged in argument that thi* ca*a li ruled
by St. Louie A S. F. R. Co. t. Conarty, 23B
U. S. 243, SS L. ad. 1260, 36 Sup. Ct. Bep.
T8e. In that case, howeTer, it was not
claimed tliat the cotlision resulting in the
injury complained of was proximately at-
tributable to a violation of the Safety Ap-
pliance Act*, and therefore the claim made
for it cannot be allowed.
The declared purpoae of the Safety Ap-
pllanee Act of 18B3 (27 Stat at L. chap.
ISI, p. 631, Comp. Stat- 1013, | 8606), and
«f the amandatory Act* of 1S03 [32 Stat.
at L. MS, chap. 976, Comp. Stat. 1913,
I 8B1S1 and of 1910 [36 Stat, at L. 293,
chap. 160, Comp. StaL 1013, j 8817]. la "U
promote the safety of employee* ■ . .
upon railroad*, by compelling common car-
rier* engaged In Interstate commerce to
equip their car* with automatic couplers
. . . and for other purpoaea," and at the
time the plaintiff waa injured the** acta
made it unlawful for any carrier engaged in
interatate commerce to use on its railroad
any car not so equipped. Southern B. Co>
T. United SUtes, 222 U. S. 20, G6 L. ed. 72,
32 Sup. Ct. Rep. 2, 3 N. C. C. A. 822;
Southern R. Co. v. Railroad CommlBsIon,
236 U. B. 430, GO L. ed. 661, 35 Sup. Ct.
Rep. 304. By this legislation the qualified
duty of the common law is expanded into
an absolute duty with req>ect to car coup-
lers, and if the defendant railroad com-
panies need cars which did not comply
with the standard thus preaoribed, they vio-
lated the plain prohibition of the law, and
there arose from that violation a liability
to make eompeneation to any employe* who
was injured became of it St. Louis, I. U.
t S. R. Co. V. Tkylor, 210 U. S. 281, 205,
62 L. ed. 1061, 1068, 28 Sup. Ct. Bep. 816,
21 Am. Neg. Kep. 404; Chicago, B. ft Q. R,
Co. V. United SUtc*, 220 U. S. 669, 6S L.
ed. 682, 81 Sup. Ct. Rep. 812; Texaa ft P.
R. Co. T. Rigsby, 241 U. S. 33, 80 L. ed.
874, 36 Sup. Ct Rep. 482; Illlnoli C. R.
Co. V. Williams, 242 U. S. 482, 61 L. ed. 437,
37 Sup. Ct Bep. 1£8. S
• While it 1* undoubtedly true that the lm-«
mediate occasion for passing the laws re-
quiring automatic couplers was the great
number of death* and injurie* caused to ttn-
ployees who were obliged to go between car*
to couple and uncouple them, yet these laws
as written are by no means confined in their
terms to the protection of employees only
when M engaged. The language of the acta
and the authorities we have cited malte it
entirely clear that the liability in damagee
to employee* for failure to comply with the
law springs from it* being made unlawful
to us* cars not equipped a* required, — not
from the position the employee may be In,
or the work which he may be doing at the
moment when he is Injured. Thi* effect
can be given to the act* and thdr wi*e and
humane purpoae can bo aoeompllahed only
by holding, as we do, that carrier* are lia-
ble to employee* in damage* whenever the
failure to obey these Safety Appliance Lawa
1* tbe proximate cauee of injury to them
when engaged In the diecharge of duty, Th«
jury found that the plaintiff"* case cams
wiQiln this Interpretation of the statute,
and ths judgment of tlie Suprone Ooort «l
Georgia must be afBnned.
L'.aliz.dbyGoOgle
.498 S7 SUPBBME COUBT UEFOKTER.
(Mt D. a. ton
UNITED STATES, Plff. In Brr,
JESSE T. HOEEHEAD.
PKBJ0Bt ^bT~Oath Autbobized bt Law
— AfTiUAviT— Reoulatiom or Land Dx-
PABTUBNI-
1. A cbftrge of perjury may be based
upon k Tslid regulation of the General Land
Office requiring an affidavit, where the oath
ia taken before a competent tribunal, officer,
[Ed. Not*.— For otiur euas, mae PerJucT, Cent.
Dtg. It 18-25.]
Public LAnoB ^=>9S — Dbparthental
REGUI.ATION — Affibavit to Soldikbs'
HoMESTKAD Deciahatobt Stateurnt.
2. A regulation requiring an affidavit
(o accompany a soldier's homestead dectar-
fttory statement which, when filed by him-
•eli or his agent, givea him a preferential
right to acquire under the Homeetead Law
(U. S. Hev. Stat SS 2304-2300, Comp. SUt.
1813, tf 46B2-4I»1, 4602, 4003, 460S) the
particular land aelected, could validly b«
adopted by the Land Departmoit in the ex-
ercise of ita duty under U. S. Rer. Stat. SS
161, 441. 453. 2478. Comp. Stat {{ 286, 681,
699, 6120, to enforce the public land laws 1^
appropriate regulations, notwithstanding
the reference to "pre-emption caaee" in
% 2309 (Comp. SUt. 1013, S 4006), which
providei that a toldler may aa well by an
ftgent aa in person mt«r upon the home-
a^ad by filing a declaratory statement aa
In pre-emption caeea, and the absence of any
requirement, either by statute or by regul^
tioD, of an afBdavlt in proceedings under
the pre-emption laws.
IBi. Note.— For other euei. see PubUo I.anai,
Cent. Dlr I MO.]
PuBUO Lahds «=>96 — Defabtmehtal
Regoi^tion— Affidatip— Who Mai Ad-
xiHism Oath.
3. A departmental regulation that a
■oldlers' bomeatead declaratory itatMnent,
when filed by an agent, may be executed
before any officer having a seal and au-
thorized to administer oaths generally, is
both appropriate and not inconsistent with
the variona congressional enaetmenta which
provide for the administering of oath* by
registers and receivers, or by the clerics of
«ourts or United States GommisBloners In
the district in which the land la situated,
or with the provision of U. S. Rev. Stat
% 2293, Comp. SUt. 1013, | 404G, relating
to affidavlU Wore the commanding officers
of soldiers actually engaged in aervica^
[Bd. Note.— For other oueo, we Public Landa,
Cent. Dig. 1 tSO.]
PiBJCKT 4s>0(2) — Oath Authouzkd bt
Law— ATFiDAvn Before Statk Ofttoeb.
4. An oath administered by ft notary
public or clerk of a state court in pnr-
auance of a valid reflation of one of the
departments of the Federal government, al-
though without express authority from Con-
sreaa, inbjecU the affiant to the penalty of
we Federal sUtnU against false swearing.
[BM, Note.— For other cum, bm Parjarr, CttiU
[No. SS5.]
tana to review a judgmmt suaUining a de-
murrer to an indictment for conspiring
against the United SUtea by sulraming per-
jury. Reversed and remanded for further
proceedings.
The facU are aUted in the opinion.
Messrs. Francis J. Kearfnl and S. W>
Williams for plaintiff in error.
Mr. W. B. Bands for defendant in erm.^
Mr. Justice Brandos delivered the opin-*
ion of the court-.
Morahead was indicted under 3 37 of the
Criminal Code [35 But. at L. lOOe, chap.
321, Comp. SUt 1813, I 10,201] for eon-
spiring with others to commit an offmsa
against the United States. The offenae con-
templated by the conspirators is subornation
of perjury (Criminal Code, | 126) in con-
nection with soldiers' declaratory statements,
to be filed by defendant as agent, covering
public lands under tJie Homeetead Law.
Hie perjury set forth In the indictmrait eon-
slsta in false swearing before noUrtee publle
and clerks of sUte oourU to declaratory
sUtements. Ihe parU of the sUtement al-
leged to be false are those which declare:
(1) That the elaim Is made for hia [the*
applicant's] exelnaire use and benefit, forS
the purpose of actual'settlement and cnlti-*
vation, and not either directly or indirect^
tor the use or benefit of any other person.
(2) That the agent has no right or In-
terest, direct or indirect in the filing at
such declaratory aUtement
The district court susUined a demurrer
on the ground that the Indictment did not
charge a crime, holding that there was no
law which required affidavIU to soldiers'
declaratory sUtemenU; that the land Do-
partment was not authorized to exact them;
that consequently no law "authorizes an
oath to be administered" to such affldaviU;
and, aa ptt-jory is possible only when Mt
oath Is authorized to be administered, tho
procuring of these false oaths could not bo
subornation of perjury, nor an agreement
to secure them a conspiracy to suborn per-
jury. The case comes here on writ of error
under the Criminal Appeals Aot (March S,
1007, ehap 2004, 84 SUt at L. 1246, Comp.
SUt. 1013,1 1704).
The Homestead law (Ear. SUt !§ 2304~
2300, Comp. SUt. 1013, S| 4692-4094, 4602.
4603, 4600, embodying Act of June 8, 187^
chap. 33S, 17 SUt at L. S33) doea not pro-
scribe whether or not an affidavit shnll m^
company a sddier's declaratory statemort.
He affidavit Is prescribed by a regolatloa
■• tovle * KSY-NUIIBSK IB SU H
v*^iOO^IC
UNITED STATES r. MORSHEAD,
469
of tlia CoimntBilonn of the Qener*l Lftnd
^ Offloe, promulgated witli tlie approral of
g tlie Beentarj of the Interior. > It U elear
■ that a charge of per Jury ■ nifty be baaed
vpoti a valid r^ulation of the Qeneral lAnd
Office requiring an alBdarit if the oath be
taken "before a competent tribunal, officer,
or perBoD." United SUtes v. SmuU, 236
U. B. 406, 6S L. ed. 1141, 36 Sup. Ct Rep.
849. The question obviouely ariiing here is
whether tiie law authoriied the oath to be
adminiitered. Another quertion — whether
U wa* administered bf a competent tribu-
nal, officer, or pereon — wai treated by both
partial aa requiring dedsion. Aisuming
without ipedally determining the occasion
for pasting upon the second question, we
proceed to eonilder both.
1. Whether an affidavit may be required
to a •oldiera' hmiestead deelarktory itato-
^Mcnfc
2 Tht Homestead Law* gives to every boI-
• dier who aerved'in the Army of the United
States during the War of the Ilebollion
for ninety days, was honorably discharged
and remained loyal to the government, the
right, upon certain conditions, to enter upon
100 acres of the public land as a home-
atead and receive a patent therefor. To
comply with these condition* the applicant
must make actual oitry, * settlement, and
improvement; and he must, on applying
to enter the land, make and file the affi-
davit, aa provided in Rev. SUt. | 2260,
Comp. Stat. 1913, | 4S31, that such applica*
tion is honestly and in good faith made
for the purpose of actual settlement and
cultivation, and not for the benefit of any
other person. Furthermore, in order to ob-
tain a certificate or patent, he must, under
Rev. Stat, a £201, Comp. SUt 3913, S 4532,
make proof of his residence for the full
period, and an affidavit "that no part of
such land hae been alienated." The filing
of a declaratory statement is not a neces-
sary step in acquiring title to land. It
relate* to a privilege^ akin to pre-emption,
hj which he may seoure, prior to the entry
under | 2290, Comp. Stat. 1913, { 4631. a
preferential right to acquire, under the
homestead law, the particular tract located
on. The privilege la exercised by filing the
declaratory statement with the register;
and il exercised, lapse* unleaa, within stK
months thereafter, the soldier makes entry
and actually commences settlement and im-
provement. See Re Hotaling; 8 I^nd Dee;
IT, 20; SUpheni t. Ray, 6 Land Dec. 183,
I The material part of the Kegnlatlon of
October 11, 1910 (39 Land Dec 291, 284,
£96), is as follows:
TIliB aoldier'i declaratory statemoit, ft
filed in person, must be acoompanied by the
Creserlbed evidence of military service and
le oath of the person filing the lame, stat-
ing hie residence and postoffiee addrees, and
setting forth that the claim la made for hia
exdueive use and benefit tor the purpose of
actual settlunent and enltivatioD, and not,
dther directly or indirectly, for the um or
bensfit 4^ any other person; . . .
'In ease of Sling a soldier's declaratory
■tatanent by agen^ the oath must further
deelare the name and authoriW of the agent
and the date of the power of attorney, or
vther instrument ereuiug the agency, add-
ing that the name of the agent was inserted
therein before its execution. It should also
state in terms that the agent has no right
or interest, direct or indirect,* in the filing
«f luch declaratory atatemcnt-
^Ihe agent must file (in addition to hia
power of attorney) his own oath to the ef>
lect that he has no interest, either present
or proepeetlve, direct or indirect, in the
elaim; that the same la filed for the sole
benefit of the soldier, and that no arrange-
ment has been made whereby said agent has
beai empowered at any future time to sell
or relinquish such claim, either as agent or
In filing an original relinqnisbmMit of the
daimant.
"Where a soldier's declftratorr statement
is filed In person, the affidavit of the soldier
•r tailor nuat be sworn to b^ore either the
ngietar or the reeetver, or before a United
BMm oommiatloBav, or » thiHad States
court commissioner, or judge, or clerk of a
court of record in the county or land di>-
trict in which the land sought is situated.
Where a declaratory statement Is filed by
an agent, the agent's affidavit muat be exe-
cuted before one of the officers above men-
tioned, but the soldier's affidavit may be
executed before any officer having a seal and
authorized to administer oatbs generally,
and not necessarily within the land district
in which the land is situated."
■ lUv. Stat. I S304, Comp. SUt 1918, I
4G92.
"Every private soldier , . , who has
served in the Army of the United SUtes
during the recent rebellion . . . shall
... be entitled to enter upon and receiTa
patenU for a quantity of public lands not
exceeding one hundred and sixty acres
. . . subject to entry under the homestead
laws of the United States; but such home-
stead settler shall be allowed six months
after locating his homestead, and filing bis
declarstoiy statement, ... to make his
entry and eommencs his settlement and iin-
provement."
■ Hie term "entry" is used in the statutes,
regulations, and decisions in several senses;
sometimes to designaU the initiatory pro-,
ceeding whereby an inchoate right or prlvi^
lege is acquired; sometimes as referring to
final entries or proof; sometimes as refer-
ring to the proceeding aa a whole. DeaH
T. United SUtes, 162 U. B. 680, 646, S3 £.
ed. 646, 647, 14 Bup. Ct Rep. BSO, 9 Am.
Grim. Rep. 161; Steams v. United SUte^
82 a. a A. 48, 162 Fad. SOD, 007; United
States V. Koriham P. B. Oo. KM Vad. 4SS.
A^iOOglC
«0
17 8UFBXME COUBT REPORTEB.
Oot. ■
134. To render tU« privilege readilj »tu1-
^ Able to loldiera living at a distanes, au-
^thority ii given (Rev. Stat. | 2309, Comp.
• SUt. 1013, S MOfi)* to "eotar npontliB
liomeatead by flllng a declaratory itate-
ment," "as veil by an agent as In peraoD."
Thus the Boldier can be aasured of the h-
lection of an advantageous homestead bo-
fore perfecting his plan for removing to Ua
new home.
It ia a matter of common knowledge that
thia ipeciai privilege, granted to fadlitato
the acquisition by soldiers of homeateade in
graUful recognition of patriotic service,
was eooo perverted into an inatrnmaut of
fraud. Soldiers' declaratory statementa,
acquired by so-called i^ents in large aun-
bera, became the subject of axteusive specu-
lation. They were used as a means of pre-
onpting choice lands for a period of six
months witli a view mtnlj to selling re-
linquishments of locations to psrsoDS dedr-
lug to acquire public lands under the pre-
emption or general hMnestead laws, (Bee
Re Gardner, 1 Land Deo. 79.) To atay
tbia abuse the General Land Office issued,
OD December IS, 1SS2, the circular concern-
ing "Soldiers' Homestead Declaratory State-a
ments" (1 Lasd Dec SIS),* prescribiogs
requirementa'whioh have since remained in*
force and are embodied in substanca in Ute
regulation of October 11, 1910.
Defendant eontends that this regulatiM,
wliich has beat enforced continnoualy tor
nearly thirty-five years, is Invalid. Since
the Land Department is expressly charged
with the duty of enforcing the public land^
laws 1^ appropriate reflations, ■ and theg
regulation in question was* duly promnl-*
gated, the asaertion of Its invalidi^ must
I «Bev. Btat. $2309:
"fivery soldier, sailor, marine, officer, or
other person coming within the provisione
of section twenty-three hundred sjid four,
may, as well by an agent as in peraon, enter
upon such homestead b^ filing a declaratory
statement, as in pre-emption cases; but such
claimant in person shall within the time
prescribed make his actual entry, oommence
aettlementa and improvements on the same,
and thereafter tulSI all the requirements of
Uw."
"Circular.
"Commieaioner McFarland to registera
and receivers, December 15, 1882:
"In view of extensive frauds in the matter
of declaratory etatementa of homestead ap-
plicants under g§ 2304 and 2309 of the Re-
vised Statutes (Comp. Stat. 1913, 9S 45B2,
4605), the privilege conferred by the Bling
of such claims having been made the occa-
sion of barter and sale, without attempt on
the part of the eoldier to comply with the
statute by making formal entry at the dis-
trict office, and eommeacement of settle-
ment upon the land within the preacribed
period of six months, the following regular
tions are prescribed for the admiaaion of
Buch filings:
"1. Proof of qualiflcation as an honor-
ably discharged soldier must be famished
in accordance with existing regulations in
caae of entry by soldiers who make direct
homestead application without availing
themselves of the preliminaTy filing. Oath
of the soldier, setting forth his resi-
dence and postoffice address, must accom-
pany the nling, to the efTeet that the
claim Is made for hia exclusive use and
benefit, for the purpose of actual settlement
and cultivation, and not either directly or
Indirectly tor the use or benefit of any other
person; and it must also be shown by such
oath that he has not theretofore either made
a homestead entry or filed « declaratory
statement under the homestead law.
"2. Where the declaratory statement Is
offered for filing by an agent under % 2309
(Comp. Stat. 1913, g 4606), the oath must
further declare the name and authority at
such agent, giving the dato of the power of
attorney or other instrument creating the
agency, and also aver that tht name waa
inserted therein before execution. It will
be observed that with the filing of the de-
olaratoiT statement the power of the agen^
under the law, is at an end. He has l£er^
after no right or control with respect to
the matter nor over the land selected, and
has no authority to relinquish the claim or
do any other act in the premises. The tiu-
ther declaration of the statute is express,
that 'auch claimant in person shall within
the time prescribed malce hla actual entry,
commence settlemoitB and improvements OB
the same, and thereafter to fulfil all Um
requirements of law.' Nevertheless, th*
oath of the soldier and the power of attor-
ney should show that such is the under-
standing of the matter, and he should swear
in terms that aucb agent has no ri^t or
interest direct or indirect in the filing of
auch declaratory ■tatement."
<Rev. Stat. | 441, Comp. Stat. IDU,
a 681.
"The Secretary of Hit Interior is charged
lating t.. ...., .v..
The public lands, . . .
Rev. Stat | 463, Comp. BUt 1913, |
seg.
"The Commissioner of the General Land
Office shall perform, under the direction of
the Secretaiy of the Interior, all executive
duties appertaining to the surveying and
Bale of the public lands of the United States,
or in anywise reiq>ectlng such public lands,
Rev. BtaL J 101, Comp. SUt. 1913, S 235.
"The head of each Department ia au-
thoriced to prescribe regulations, not incon-
aistent with law, for tlM government of hte
Department, the condnct of its officers and
clerks, the distribution and pwformonce of
Its busineaa, and tha custody, uac^ and pna-
,A_^OOglC
1016.
UKITED STATES t. UOBBHEAD;
MI
b« predicated dther upon tti being Ihcod-
•btent with the ittttutei or upon ita being
In itselt unreaeonable or InapproprUt*.
Thet the requirement of the ■oldier'B Affi-
davit to the fftcts euential to the existence
of Kn7 right of the applieuit under the iftw
1j both reasonable and appropriate can
■carcelj be doubted. United States v.
SmutI, 236 n. S. 40S, 411, S9 L. ed. 641,
M3, 35 Sup. Ct. Hep. 349; United SUtea t.
Bailey, 0 Pet. 23S, 266, 0 L. ed. 113, 120.
But defendant urges that the regulation is
Inoon HI stent with the statute, in that it
adds to the requirements of the statute still
another condition to be perfonned before the
wMler can acquire his homesteAdj and
hence fa legislation, not regulation. But
the regultttion does not add a new requira-
ment in exacting the adld&vit, as In Wil-
liamson T. United States, 207 U. B. 426,
46$-4a2, 62 L. ed. 278, 2M-2B7, 28 Sup. Ct.
Rtp. 163. It merely demands appropriate
eridmce that the proceeding Is initiated —
■• the statute requires it must be through-
mt conducted — in good faith, for the single
purpose of acquiring & homestead.
Great stress is laid upon the reference to
■^rfr^mptlon cases" In Rer. SUb | 2309,
Comp. Stat 1613, § 4606, which provides
that the soldier "ma; as well bj an
agent as in person enter upon such home-
stead b; flliug a declarator; statement
a* in pre<emption cases." In proceed-
tnga under tlie pre-emption laws (Rev.
Stat H 2275, 2276, 2286, 2288, Comp. Stat.
S leiS, a 4860, 4861, 4SG». 453S, repealed b;
fAct'ot March 3, 1801, chap. 661. 26 Stat
at Jj. 1095, Comp. Stst 1813, f SlIO), an affi-
dartt was not required either l^ the statute
«r b7 regulstlan (see 10 Land Dec. 687) ;
and it is said that it cannot therefore, be
required under ihe provisions for soldiers
tn the Homestead Law. But the reference
In the latter statute carries no such im-
plication. It was inserted for a different
purpose. The general homestead taw does
not give the privilege of securing, in ad-
vance of formal entry, a preferential right
to a particular location. That is. It gives
no right to prior selection) and none ae-
crues from prior occupation save sucb as Is
given by § 3 of the Act of Uay 14, 1860,
chap. 80, 21 Stat at L. 140, Comp. Stat
1S13, g 453& Nor does the pre-emption
law give a privll^e to acquire, merely b;
selection, a preferential right to a particu-
lar parcel of land. But under it, the par-
son who actually "settle* and improves"
land may, in advance of entry under Rev,
Stat, j 2262, acquire a preferential right
over others, to the particular parcel, by
filing with the register within thirty days
thereafter (Rev. Stat. | 2264) "a written
statement describing the land settled upon."
To that "written statement" the "declarar
may be likened; but the conditions under
which It la filed are very dissimilar. The
pre-emptloner must personally, before "fil-
ing," have astually entered upon the land,
must have commenced settlement nnd im-
provement,— acta wblch. In themselves,
furnish evidence that the proceeding ha*
been initiated in good faith. The soldier
homeetesder, on the other band, need d*
nothing whatever to obtain a six months
preferential right save file the declaratory
atatonent, and that nay be done by an
agent, — a situation calling for extrinsic
ervidoice by affidavit of the applicant's good
faith.. Oood reasons thus exist for a diffar-
enee in requirements in the two classes of
cases; but the power of the Land Depart*
ment to require an affidavit to the declara-^
tory statement even in pre-emption ill wis, ^
ss It did to declaratory* statements under*
the Coal Land I«w, seems not to bar* been
questioned. (Rev. Stat || E34S, 2349,
Comp. Stat 1013, gg 4660, 4661; 1 Land
Dec 6S7, HIT 28, 33.) The r^ni'^^ion ulBng
for an affidavit to a soldier's declaratory
stat«9nent under the Homestead I«w, nnllks
that considered in United States v. Oeorgs,
22S U. S. 14, G7 L. ed. 712, S3 Sup. Ct Rqi.
412, Is thus a regulation entirely consistent
with the statutory provisions; and being
also appropriate, is valid,
2. Whether state ofBeers are authorised to
administer the oath.
The purpose of Congress In allowing HI-
inge to be made by an agent was to faeill*
tate the acquisition of homesteads by aoir
dlers living at a distance from the land to
he settled on. To their declaratory stat»
ments the several statutes T which provide
for the administering of oaths by registers
and receivers, or by the clerks of eourts or
ervation of the records, papers, and prop-
arty appertaining to it"
Rev. Stat. | 2478, Comp. Stat 1913,
fl 6120.
"The CommiesionGr of the General Land
Office, under the direction of the Secretary
of the Interior, is authorized to enforce and
carry into execution, by appropriate regu-
lattmis, every part of the provisions of £ls
title [title 32— The Public lAnds] not otb-
^rwlsa q)ecia]ly provided for."
t Rev. Stat || 2246, 2200, 2294, Comp. SUt
1913, gg 4494, 4E31, 4546; Act of June 9,
1880, obap. 164, 21 Stat at L. 160; Act of
May 28, 1890, chap. 865, 26 Stat at L. 121,
Comp. SUt 1913, S 4646; Act of March 11,
1S02, chap, 182, 32 Stat at L. 63, Comp.
Stat IBIS, I 4646; Act of March 4. 1S04,
chap. 394, 33 SUt at L. 69, Comp. Stat
ISIS, I 4S46.
z.dbyG00gle
n SDPRBHB COUBT RBFOBTEB.
Ooi. Tmc,
United BtatM ooramlasmien in tlw dlitrlct
wlwrein the luid is rituatod, are obrfouoly
not eselusiTelj applieabla. If applicable at
alL And plalol/ the proHBiMi of Rev. St&t.
I 22S3, Comp. SUt. 1913, | 4HS, relating
to affidavits before the conunandlng officers
ot eoldiera actualljf engaged in eerrice, le
Inapplicable. The requirement of aa affl-
daTit to the declaratory atatement, to be
made bj soldiera living elsewehere than in
the land diatrict, can be eomptted with only
If an oath before eome officer other than
those speci&callr named in those statute!
la recognized aa being within the authority
of law. It follows that, to cany ont the
duties imposed hj law, the Land Depart-
ment waa called upcu to make appropriate
provision for the administering of oaths in
■neh cases; and the provision that soldiers'
declaratory atatementa, when filed by agent,
"wuj be executed before any officer having
fe.a awl and anthorlzed to administer oaths
2 generally," is both appropriate and "not
■ inoonsiatent with law." Ever since the deci-
el(m in United State* t. Bafltr, 0 Pet. £38,
2S6, e L. ed. lis, ISO, it has been held that
•a oath administered by a state magistrate,
in pursuance of a valid r^ulation of one
■f the departments of the Federal govern-
ment^ though without eipreM authority
from Congress, subjects the affiant to the
penalties of the Federal statute against
false swearing. Sea Caha t. United States,
162 U. 8. 211, 218, 38 L. ed. 410, 417, 14
Sup. Ct. Rep. S13.
The Indictment charges a crime under
the laws of the United State*. Judgment
of the District Court ia reversed and the
ease Is remanded for further proceedings in
eimformity with this opinion.
It ta ao ordered.
(t*»V.B.sm
8T. LOUIS, IRON MOUNTAIN, t BOUTH-
■EKS RAILWAY OOMPANV, PIS. in
to state eourta, wheov the action was one
against the initial carrier of an interstato
shipment to recover upon a through bill of
lading fw the negligence of the connecting
carriers, as well as of itself, and was
brought since the paaeage of the Carmaek
Am«idm«it of June 29, 1906 (34 Stat, at
L. 600, chap. 3591. j 7, pars. 11 and 12, Comp.
Btat 1913, t 6002), to the Act of February 4,
ISST (24 Stat at L. 386, dap. 104), { 20, by
which Congreae took entire poeeesaion of the
subject of the rights and liebilities growing
out of contracts for interstate shipments, and
the defendant carrier, though not specifically
mentioning the Federal statute in its an-
swer, did qieciSeally plead a breach of the
obligation under Uie bill of lading to report
claims for damages to the terminal carrier
in writing within thirty-six hours after tJia
consignee had been notlQed of the arrival
of the freight at the place of delivery, In-
sisting that such obligation had not been
oomphed with, and the state court, in de-
elding the case afainst the carrier, stated
that a through bill of lading had been issued
and would be controlling ui the absence of
special facta which it found as to Uie effect
of verbal notice ^Ten to certain agents of
the terminal earner.
[Ed. Note.— E'er olhar cant, lee Courtu, Cant
Dig. i 1004.]
Oabbiebs «=>169(2)— IiUcmNO Liabiutt
— NOTicD or Cum.
2. A stipulation In a throng bill of
lading for an Interatate shipment of peaehea
that the carrier taauing the bill of lading
shall not ba held liable for damage* unleas
A claim for damage* ia r^orted by the con-
signee In writing to the terminal carrier
within thirty-six hours after the consignee
haa been notified of the arrival of the
freight at the place of delivery Is valid and
not unreasonable.
[BM. Note.— For stber oasai, ••* Oairlsrs,
Cent. Die. ti 7U-T1S.]
Cabbiebb «=>159(1)— IjiimHa Lubujtt
— NonoB or Claim,
3. Written notioe within the time stipn-
lated of an intention to make a claim for
damages, without specifying the amount ot
the &magea claimed, fa a sufficient eon-
Eliancs with a stipulation In the throu^
ill of lading for an interstate shipment ot
peaches that Uie carrier iseuing the bill
shall not be held liable for damages unless
a claim tor damages is reported by the con*
signee in writing to the terminal carrier
within thirtv-six hours after Uie eonsi^e*
hat been notified of the arrival of the freight
at the place of delivery.
rEd. Note.- For other cues, see Carrlars,
Cent. Dla. E! 668-m. TOO, m.]
OABBiEBa ^=159(1)— I-mrriMO Liabilitt
—Notice of Claim— Actual Norics.
4. The failure to comply with the
requirement of a stipulation in a throng
bill of lading for an Interstate shipment ot
fruit, conditioning the liability of the car-
rier issuing the bill of lading upon the re-
port by the consignee of claims for dam<
ages to the terminal cerrier in writing
wiUtin thirty-eix hours after such condgnaa
er cases lea sun* topic * KEY-NDMBBR In all KsT-NvmbSred DlEeatS * Indexes
• Aet Uarch t, IIU. e. m. tS SUt. IIH (Oomp. BL 19U, | 1114).
C A. 8TARBIKD. Administrator d the
Estate of Adam MUler, Deceased. (No.
276.)
Ooi:ier8*=394(16)— ElsBORTo State CotrBT
— Fedibal Qobotion— How Raised amo
Decided.
1. A right, the creation ot a Federal
,A_^OOglC
1&16.
61. LOUIS, I. M. & a S. CO. T. STASBntD.
4M|
Iitd been iiotifl«d of fli« ■rrlTil of tha
freight at the place of deliTerj, waa
excused, where the tennina! carrier h&d a
freight agent at the place of deliver; in
diorge of the dooka upon which tha ship-
ment waa delivered, by virtue of tha giTing
of verbal notice of the bad condition of the
ahipmcut to the terminal oarrier*! di>ck i
ter, or because of the knowledge of aueh
oondition hy longahoremen working on tbe
[Bd.' Note.-For othar caan, ■«• Oarrters,
Cert. Dig. {! 6es-m, TOO. 711.]
CouBTS <e=394(15)— EJbbob to State ConiiT
— Federal Questiom — Right Uhdkb
I^DESAT. Statute.
G. A judgment of the highest court of
a etate, which, upon the ground of the Talid-
ity of the stipulation in an interstate
through hill of lading reapecting the giving
of notice of claims for damages, reveraed
in part a judgment in favor of the
•ignee in an action against the initial . .
rier to recover on such bill of lading for
the n^ligene* of connecting eairiera at well
as of itself, ma; be reviewed in the Federal
Supreme Court on croaa writ of error, where
the consignee asaerts that the provisiona of
the Act of June 28, 1809 (34 Stat at h.
696, chap. 3591. f 7, pare. II and 12, Comp.
Stat 1!)]3, { SS92). amendatory of the Act of
Febmar? 4, 1887 (24 Stat, at I^ 386, chap.
IM). I 20. are violated by Mch atipulatfon.
[Bd. Not*.— For other oaaei. •■• Courts. Oent.
[No*. 27& and TBS.]
Argaed December 6 and B, ISIS. Dcoided
AprU ao, 1»17.
■^N WMT AJTO CROSS WBIT OF KRr
R to tha Suprone Court of tha Stata
of Arkansaa to review a Judgment wUeli af-
firmed in part and iwrened in part a jndg-
ment of the Oreult Comt of Crawford
Cotmt;, In that atata, in favor of plaintiff
In an aotioa ^vnat a carrier to raeover
for the damage to a perishable ahipmait.
Judgment reversed on writ of error lued
mit by the carrier, and affirmed on oroH
writ of error.
See same oaae below, 118 Ark. 48G, 177
B. W. 912.
The facta are stated In the opinion.
HeasTB. Thomas B. Pryor and Edward
J. White for the St Louis, Iron Mountain,
A Southern Railway Company,
Messrs. Robert A. Rowe and Charlea D.
Toleom for C. A. Starblrd.
s
• *Ur. Juvtlce Day delivered the opinion of
Ifaa ooart:
A motion ti made to diamlia the writ of
error npon tlie ground that no Federal ques-
tion was properly raised in tha state court.
The dispotitim of thia motion requires a
•ousideration of j 287 of the Judicial Code
[36 Stat, at L. 1160, chap. 231, Comp. 8t*L
0",
, 18IS, I 1214], which aectlon'is In effect bat'
a re-raactment of | SS of the Judiciary Act
of September 24, 1780 [1 Stat at I/. 8G,
chap. 20], and | 70B of the Revised Stat-
ute* of the United States.
This suit was brought by Miller, and re-
vived by his administrator, to recover
against the initial carrier, tiie St Louis,
Iron Mountain, k Sonthem Railway Com-
paoy, for ita n^ligenca and that of con-
necting carriers in failing to properly ra-
frigerate certain carloads of peaches, shipped
from a point in Arkansaa to the city of
New York, over the linea ol the initial and
connecting carriers, and In the last-named
ci^ delivered upon the dock of the Penu-
aylvaula Company, and found to be in a
bad condition. Each shipmoit waa intei^
state and upon a through bill of lading, tha
bill containing, among other things, a stipu-
lation that the carrier should not be liable
for damages unless claims for damage* wet*
reported to the delivering line within thirty*
dz hours after tha consignee had been noU-
fled of the arrival of the freight at the place
of delivery. In the answtr Bled In the eaa*,
making one of the Issues upon whiah tiu
ease was tried and dedded, the driendaat
aet op thii clause in tht bill of lading and
the failure of the plaintiff to eonply with
It
Without BOW reciting other provlaion* of
I 287, it la enough to aay that a case ia
reviewable In thla court where any title,
right, privilege, or Immunity la claimed
under a statute of the United States, and
the deeiaion is agalnat the title, right, privi-
lege, or immunity eqieoially set iqi or
claimed by either party under such ctatnta.
We hav^ therefore, to datamine thre*
propoaitlona: (1) Was there a right In-
volved which Is the ereation of a Federal
statute! (2) Waa it sufficiently aet up and
called to the attention of tha state oourt
so as to be "especially set up or claimed,"
within the meaning of the acti (3) Waa
the decision against the right aet up or
claimed under the Federal sUtutet If thee*
requisites are complied with, th* case is a
reviewable here. 3
*1. On June 29, 1908, Congress passed the
M-calted Hepburn Act (34 Stat at L. SS4,
chap. SE91, Comp. Stat 1913, | 8S92), by
I 7 of which it undertook to provide for
the liability of carriers in interstate com-
inerce, and to subject them, as to interstate
ahipments, to oertain obligations which
should supersede Uia varying requirement*
of the states through which interstate trana-
portatlon might be condneted. The con-
struction of this aet came before this eourt
in Adam* Ezp. Co. v. Croninger, 22B U. S.
4S1, 67 L. ed. 814, 44 L.R.A.(N.8.) 2fi7, U
Sup. Ct. Rep. 148, and t^eii full oonridera-
la topic ft KBT-NUHBBB in aU Kar-
A^iOOglC
17 SUPREME COURT REPORTER.
Cot. Tebi^
'don It WM hdd Uiat Uia effect of the Cftr-
jnack Amendmait wu to auperBede ftll Itgit-
l&tion in the purtjcular itatei, aad to
(mbrace the liability of the carrier in inter-
state tranaportation. It was there aald
that almost ererjr detail of the eubjeet had
been conqiletelj ooTered, and that there
oould be no rational doubt that Congreaa
Intended to talce possession of the subject
and lay down rulea and regulations upon
vhlch the parties might relj and have their
rights determined by a uniform rule of
obligation. Among other things, the act
required that the initial carrier should is-
sue a receipt or bill of lading wheniver It
received property for transportation from
a point In one state to a point in another
state, and the Initial carrier wae made lia-
ble, not only for the results of its own negli-
gence, but also for loss, damage^ or injury
to the pn^erty occasioned by any con
carrier, railroad, or ta'ansportation
pany to which Uie property should be de-
livered and over whose line or lines the
property might paas; and it was provided
that no eontract, receipt, rule, or i^ulation
should exempt such initial carrier from the
liability imposed by the act.
As the shipment In thia oaee was inter-
state, there can be no question that, since
the decision In the Croninger Case, supra,
the parties are held to the responsibilities
imposed by the Fed^al law, to the exclu-
sion of all other rules of obligation. Since
a Uie Carmack Amendment, the carrier in
E this case is liable only under the terms of
* that'act (d Congress, and the action against
It to recover on a through bill of lading
for the negligence of connecting carriers as
well as of itself was founded on that Amend-
ment. Atlantic Coaat Line R. Co. v. River-
■ide Mills, S19 U. S. 186, lee, GS L. ed. 1S7,
ITS, SI L.R.A.(N.5.] 7, 81 Sup. Ct. Rep.
104.
This principle has been so frequently ree-
dgnized in the recent decisions of this court
that it is only necessary to refer to son
than. In Southern R. Co. v. Prescott, 240
TJ. 8. 632, 636, 639, 60 L. ed. 836, 838,
36 Snp. Ct. Rep, 460, this oourt said:
"As the shipment was interstate, end the
bill of lading was issued pursuant to the
Federal act, the question whether the con-
tract thus set forth had been discharged
was necessarily a Federal question. . . .
Viewing the contract set forth in the bill
of lading as still in force, the measure of
liability under it must also be regarded as
a Federal question. As It bee often been
•aid, the statutory provisions manifest the
Intention of Congress that the obligation of
the carrier with respect to the services with-
in the purview of the statute shall be gov-
erned by uniform rule in the place o( the
diverse requirements of state legislation and
decisions."
In Southern Exp. Co. t. Byers, 240 U. a
612, 814, 60 L. ed. 826, 827, L.ILA.1B17A.
1»T, 36 Sup. Ct Rep. 410, this oourt said:
"^aoifestly, the shipment was interstate
commerce; and, under the settled doctrine
eBtabliahed by our former opinions, rights
and liabilities in connection therewith de-
pend upon acts ot Congress, the bill of
lading, and common-taw principles accepted
and enforced by the Federal courts."
To the same effect, Northern P. R, Co.
V. Wall, 241 U. S. 87, 81, 02, 60 L. ed. B06,
807, 908, 38 Sup. Ct. Sep. 493; Georgia, P.
ft A. R. Co. T. Bllsh MiU. Co. 241 U. S. 190,
60 L. ed. 948, 36 Bup. Ct. Rep. S41; Cin-
cinnaU, N. 0. t T. P. R Co. v. Rankin, 241
U. B. 818, 60 L. ed. 1022, L.R.A.1S17A, 269,
36 Sup. Ct. Rep. 666.
2. As to the part of | 237 which deaU
with rights ot this character, it requires
that the right, privilege etc, must be ea-^
pecially set up or claimed in order to make 8
a decision'of the state court a proper snb-*
ject of examination by writ of error from
this court.
It would be snperflnoua to review the
many densiona in whioh thie court has bad
occasion to consider the effect of this pro-
vision, which has been In the law ever since
the passage of the Judiciary Act of 1789 In
practically the terms in which it Is now
embodied in 1 237.
It le manifest that the object ot the pro-
vision Is to require that the alleged right
of a Federal character must in some way
be drawn to the attention of the statv
court so that It may know, or, from the
nature of the pleadings, be held to hav«
known, that a Federal right was before it
for adjudication.
The Ckrma«k Amendment is a Federal
statute regulating interstate commerce. It
was passed under the power conferred bj
the Constitution upon Congress to r^ulate
such commerce^ and Is applicable through-
out the United States, and at once became
the rule ot law governing such shipments
all the courts of the country. Clafiin ▼.
uaeman, 03 U. B. 130, 136, 23 L. ed. 833,
838; Second Employers' Liability Cases
(Mondou V, New York, N. H. & H. R. Co.)
223 U. S. 1, 66 L. ed. 327, 38 L.RA..(N.S.)
44, a Sup. Ct. Rep. 160, 1 N. C. C. A. 169.
Since the passage of the Carmack Amend-
ment, the state court must be held to haw
known that interstate shipments were eor-
ered by a uniform Federal ruk which rw
quired the issuance ot a bill of lading, and
that that bill ot lading contained ttie entlr*
contract upon which the reeponsibllities ot
the parties rested. This is the remit wit
A^^OOglC
BT. LOUIS. L U. * 8. IL Oa ▼. BTABBIRD.
• *Tha Federal right i» not rsqvired to b«
plMded In utj BpecUl or particalftr form.
It u enough tluit it b« relied upon and io
a proper manner called to the attention o{
the conrt. Section 23T of the Jadicial Code
does not require that the statute creating
the Federal right shall be eapecially set up.
He courts tslce judicial uotice of the stat-
ute. It la the right, privilege, or immunitjF
of Federal origin which must be brought
to the attention of the itate court.
nils question has been frequently dealt
with in the decisions ol this court; under
the Judiciary Act of ITSQ a case arose
which required a consideration of § 2S and
the requirements to be obaerred in order to
tiring a case within ita proTi^na, — Crowell
T. Randell, 10 Pet 368, S L. ed. 468. In
that case the requirements of the Judiciary
Act and the former decisions of this conrt
were reviewed hy Mr. Justlee Story. Deal-
ing with this feature of the law, he said:
"That It is not necessary that the ques-
tion should appear on the record to liaTS
been raised, and the decision made in direct
and positive terms, ipsisaimis Terbis; but
that it is lufflcient if it appears by clear
and necessary intendment that the quea-
tlon must have tieen raised, and must have
been decided in order to have induced the
judgment."
^ It is to be noticed, ai to the manner of
• pleading a Federal right, that Mr. Justice
■ Stoi7 observed that all tliat is*esienti&l is
that it must appear by clear and neceaaarj
intendment to have been raised. When the
answer in this ease set up the requirement
of the bill of lading upon which the suit
was brought and the failure to comply with
it, that was all that was neoessary to fairly
challenge the attention of the state court
to rights existing by virtu* of a Federal
statute as to oarriers in Interitato eom-
In ■paalcing of the neeeuity of eapedatly
tatting up Federal rights under S 709 of
1 St. Louis, I. M. k a. B.. Co. v. Faulkner,
111 Ark. 430, IE4 S. W. 763; Oamble-Robin-
ton Commission Co. v. Union P. R. Co. 262 111.
400, 104 N. E. «6, Ann. Gas. 19106, SB;
Johnson Grain Co. v. Chicago, B. ft Q. R.
Co. 177 Mo. App. 194, JM S. W. 182; Cling-
an V. Cleveland, C. C. A St. L. R. Co. 184
III. App. 202; Kansas City fc M. R. Co. v.
Oakley, 116 Ark. 20, 170 8. W. GSE; Mitch-
ell V. Atlantic Coast Line R. Co. 10 Oa. App.
7B7, 84 S. E. 227; Bailey t. Missouri P. R.
Co. 184 Mo. App. 407, 171 S. W. 44; Spada
t. Pennsylvania R. Co. 88 N. J. L. 187, 92
Atl. 379; St. Louis A S. F. R. Co. v. Bilby,
3S Okls. OSS, 130 Fac. 1089; HisBOUri, K. t
T. R, Co. T. Haitey, — Tex. Civ. App, — ,
lOe 8. W. 1119; American Silver Mfg. On.
37 S. C— 30.
the Revised Statutes, now | 837 of the
Judicial Code, this court said, in Oreea Bay
t M. Canal Co. v. Patten Paper Co. 172 U.
S. S8, 87, 43 L. ed. 364, 368, IB Sup. Cb
Rep. ST:
"But no particular form of words or
phrases has ever been declared necessary la
which the claim of Federal rights must be
asserted. It ia sufBclent if it appears from
the record that such rights were specially
set up or claimed In the state court in such
manner as to bring it to the attention of
that court.
"... In Roby t. Colehour, 143 V. 8.
IBS, 109, 86 L. ed. 922, 924, IS Sup. Ct. Rep.
47, it was said that 'our jurisdiction being
invoked upon the ground that a right or
immunity, specially set up and claimed un-
der the Constitution or authority of the
United States, has been denied liy the jud^^
ment sought to be reviewed, It must appear
from the record of the caee either that the
right so set np and claimed was expressly
denied, or that such was the necessary ef-
fect in law of the judgment.' If It appear
from the record, by clear and necessary in-
tendment, that the Federal question must
have beeo directly involved, so that the
stato court could not have given judgment
without deciding It, that will be sufficient.'
Powell V. Brunswick County, 160 U. S. 433,
440, 37 L. ed. 1184, 1138, 14 Sup. Ct Rep.
106; Sayward t. Denny, 108 U. a 180. 39
L. ed. S41, IS Sup. Ct. Rep. 777; Chicago,
B. k Q. R. Co. V. Chicago, 166 U. S. 286,
41 L. ed. 9T9, 17 Sup. Ot Rep. 081."
In Ferris v. Prohman, 223 U. 3. 424, M
L. ed. 492, 32 Sup. Ct. Rep. 263, It appears
that the complainant asserted a copyright^
in a certain play under *Uie common law*
and defendant set up the copyright for the
play, the performance of which was sought
to be enjoined, which copyright waa issued
under the laws of the United States. The
state court enjoined the defendant from
using that copyright, and it was held that
was suJlicient to show that a Federal right
had been set up and denied, as the copy-
T. Wabash B. Co. 174 Mo. App. 184, 156 B.
W. 830; Wabaah R. Co. v. Priddy, 179 Ind.
483, 101 N. £. 724; AtlanUc Coast Line R.
Co. v. Tbomasville Live Stock Co. 13 Oa.
App. 102, 78 8. E. 1019; Ford v. Chicago,
R. I. ft P. R. Co. 123 Minn. 87, 143 N. W.
249; Joseph v. Chicago, B. & Q. R. Co. 178
Mo. App. 18, 167 8. W. 837; Baratow t.
New York, N. H. k H. R. Co. 168 App. Div.
880, 143 N, Y. Supp. 983; Missouri, K. ft
T. R. Co. V. Walaton, 37 Okla. 617, 133 Pac.
42; St. Loula & S. F. R. Co. v. Zickafoose,
39 Okla. 302, 13G Psd. 406, 6 N. C. C. A.
717; Texas t P. R. Co. v. Langbehn, — Tex.
D,at,z.d-,.'^-.OOt^lC
17 SVPBJOa OOUBI BXPOBTXB.
On. ^mM,
ri^t of tlia defradant wu derlTsd nndef
th* FedvaJ Iftv. ThM,t the oontroTeny
ndaad k Federal queatton wai held bf this
oonrt uid the contnxj contftntlon diipoaed
at In the following language:
"Hm delenduita in error contest the
Jnriadietion of this conrt upon the gronud
that the btll wae buad entirelj upon a oom-
mon-law right of property, and iDitet that
the upholding of thU right by the ttate
court ralws no Federal queation. But the
eomplainanta aued, not eimply to maintain
their common-law right is the original play,
but, by virtue of it, to prevent the defend-
ant from producing the adapted play which
ha had copyrighted under the lawa of the
United Btatee. They challenged a right
which the copyright, Lf eustalnable, eeeured.
Bev. Stat. J 4962. It wae necBBsary for
them to make the challenge, for they conld
not succeed unlaw thlt right were denied.
Ferrie stood upon the copyright. That It
had been obtained was aU(«ed in the hill,
wae averred in the answer, and waa found
by the court. The fact that the ooort
reached Ita eonelneion In faror of the oom-
plainante by a consideration, on oommou-
]aw principles, of their proper^ in the
wl^nal play, does not alter the effect of
the dedslon. By the decree Ferrle wu per-
manently enjoined from In any manner
O^ng, . . . selling, produdng, or per-
forming . . , the said defendant's copy-
righted play hereinbefore referred to for
any purpose.' The dedaion thus denied to
him a Federal right qMdally set up and
etaimed wUhln the meaning of | 70fl of the
Revised SUtotea of the United BUtea. ThU
S80, SB1, SO L. ed. SW. 004, 600, 86 Sup.
Ct Rep. Ml, 4 Ann. Cae. IITG; McQuira v.
HaHsachueetts, S Wall. 882, SSfi, 18 L. ed.
164, lOGi Anderson t. Caikins, 186 O. S.
4S3, 480, S4 L. ed. £72, 274, ID Sup. Ct Rep.
•OS; Shively v. Bovlby, 162 U. B. 1, fl, 38
L. ed. 331, 336, 14 Sup. Ct Rep. 648;
Koriihern P. R. Co. ». Oolbnm, 184 U, 8.
363, 38S, 3B6, 41 L. ed. 470, 480, 17 Sup.
Ct Jiep. 98 1 Qreen Bay ft U. Canal Co. *.
Fatten Paper Co. 172 U. B. 68, 67, 68, 43
L. ed. 364, 368, 860, IS Bnp. Ct. Rep. 07."
In CreewlU v. Orand Lodge, E. P. 225 U.
8. 246, 268, G6 li. ed. 1074, 1078, 32 Sup.
Ct Rep. 622, the defoidanta were enjoined
from using their corporate name, and it
was held that, aa this right or privilege wae
derived nnder a statute of the TAilted Statae,
authorizing the incorporation, the case
reviewable here under | 237 of the Judicial
Code.
In St Louia, L U. & a R. Co. T. Uc-
WUrter, 220 U. S. £66, B7 L. ed. 117B, 88
Sup. Ct Rqt. 868, where a auit waa brought
to reeoTCT for a death ocenrring while plain-
tlfTe Intestate was engaged in intwstate
commerce, it wae held that the qtuation of
the amount of evidence neeeaaary to estab-
liah a liabUity waa inherenUy of a FedenI
character, and that tUs eourt might raviaw
the deeisl(» of the atate court for that
3. The other requialte eeaential to faring
the case within | 237 of the Judicial Coda
U that the all^^ Federal right must be
denied. It baa never been required that a
Federal right must be denied In terms, but
it haa been uniformly held that it is suffi-
cient if the state oourt necesearily denied
it in the judgment rendered. If the plain-
tiff, In bringing this ault to recover against
the initial carrier, not only for its own neg-
ligence, but for that of Ihe intervening ear-
riera in the failure to care for and deliver
the se*ersl ears of peaches, had said bt
terms that the suit waa thua brought uptm
a through bill of lading beeauBe of the Fed-
eral atatnte giving the ri^t to tbua proee>
rate the action, no one would doubt that the
Federal qneation waa brought to the attof
tion of the state oonrt; whut the plaintiff
set forth facts iritieh necessarily showed
that a suit conld only ha maintained because
of rights given under the Cazmaek Amend-^
ment, upon a bill of lading required by thatg
•aet, it waa nnneeeesary to farther labd the*
cause of aetlmi 1^ ^oeifie rrference to tlw
Federal stktote. JonM Nat Bank r. Yates,
240 U. 8. 641, SSO, 661, SO L. ed. 788, 7M,
7S7, 86 Sup. Ct Bep. 4&B. So, when tbs
defendant aet up the breach <rf the through
bUl of lading, and InsUted that it had not
beea compiled with, he would have made
his ease no stranger tat the pniposea ot f»
view hen had qtaeiflo rtferenee ben made
to the Feder^ statnta which made this UU
at lading the sole rule of obligation between
the partiM.
Thie reeord pres«mt«d a suit which showed
that It waa naoeeaarily brou^t under rights
conferred 1^ a Federal act; the defendant
apediically pleaded the failure to keep the
obligation of the contract whose force was
binding by virtue of such act; and the state
courts in stating In its decision that this
bill of lading had been issued, and would
be eontrolUng in the abaeaoe of epecial facta
which it found as to the effect of verbal no-
tice given to certain agents of the Penn-
sylvania Company in New York, neeessarily
denied the coutttithm of Federal right made
hj the defendant that the provision of the
bill of lading was ooaclosive of the rights
of the parties in this ease, and required
written notice within thir^-dx honre after
notice to the consignee at the deliwy at
the goods.
v*^iOOglC
81. lAtnS, L M. & a R. 00. T. STABBIBD.
Tot tbtm rauou th« cua ta pr^arlj n-
vUiTKUe hve.
Th« itlpnlatlon readai
"Ynalnu for dunagM moat b* iqtortad
hj eonaigne^ In writing to tha dallTaring
Una within thirty-six houra after the con-
algnee hu been notified of the ajrlval ot
tlia freight at the place of deUvarj. If aueh
notica U not titera girfn, neither thla oom-
pany nor any of the oonneeting or inter-
medUte c*rrler« ahall be liable."
Five of tha oara arriTad at Jaraey CSi^
and were lightered over to Pier 29 in the
•nming, where they who opened And un-
loaded by the longahoreman of tha Pann-
f^^lTania Company. The record ehowa that
gthe coune of bueineH at the dock lAare
• Uieae peaehM ware dellTered la: At*mid-
night a bulletin la put up showing the car
munbers and eonsignaea. At 1 o'clock in
the morning the dock 1* opened to the deal-
tn, uanallj praaant In large nDmbera, who
then go upon it and find their shipmenta.
Uiller teatifled that he bed to get trueks
to take the peachea to his store, and then
had to get extra men to eort and repack
them so that they could be sold the follow-
ing day, and Uuit he conld not tell within
two or three daya and until hia bodckeeper
had figured up what waa going to be lost
eoi eaah car, what the amoant of the dam-
age was, and in some eases it would be
three or four or fire d*ye after fhe cftr ar-
rired before he knew,
Uiller further teatifled that, by reason of
a wuni^ from the Health Department that
It would deataroy enaDing ahipmenti of fruit
if they arrived in aa bad oonditlou aa those
in preceding <»r^ he Iwd the railroad com-
p«ny, upon the arrival of the other five
eftra in Jaraey City, unload them and take
tha peaches to the Merchants Refrigerating
Company'e plant, where he had them sorted
and repacked and then loaded on ears and
taken over to Fier 29 for aaie. He teatifled
that he was notified of the c^ra' arrival and
w«it over to the Refrigerating Company;
that he put a lot of men at work sorting and
regaoklng the peaches; that it would t«ke
from two to four days to do this and an-
other day to put them on board the can and
get them over to Pier 89 and sold, and it
would be another day before the reports of
sale could be made up.
The state court held that the stipulation,
in view of the perishable character of these
shipmenta, was a rcAsonable one, but aa
there was proof in the ease to show the
knowledge of the superintendent ol the dock
ot the Pennaylvanla Company, where deliv-
ery waa made, aa to five cars of peaches,
that as to auch c«rs the necessity of notice
WM dispensed with, notwithstanding the
rafuirament of the bill of lading. Am to
other oars Involved In tha eroaa writ of
«rror. Case No. 7S6, tha court held that thaS
only 'knowledge of the oondition of that
peaohea waa that of longshoremen working
on the doek, and not nnder du^ to inspact
the fruit, and that as to such cars the a»
tion must falL
ipolationa of this character have not
infrequently been inserted in bUla of lading
and, where reasonable In their terms, have
been sustained by this court. Soutbom Exp.
r. CaldweU, 81 WalL 2U, 22 L. ed. 66S;
The Queen of the Paidflc, 180 n. S. 49, 4S
li. ed. 41S, 21 8np. Ct. Rep. 2TS. Whether
such stipulations are reasonable or not do-
pende on the drcumatances of each case.
Pennsylvania Co. t. Shearer, 7B Ohio St.
240, 116 Am. St. Rep. 730, Ttt N. E. 431,
0 Ann. Cas. IS. We agree with the supreme
court of Arkansas that, in view of the
highly perishable nature of this shipment
and the necessity of giving notice promptly
in order that the carrier might have an op-
portuni^ to examine tha same and det*^
mine the nature and extent of the injury
thereto before the fruit waa sold or de-
stroyed, Uie stipulation requiring notice of
snch intontion within the time named In tha
bUI was not nnreasonabla. What constl-
tntea reasonable time In which notice may
ba required must depend on the nature ot
the freight; and. If snch notice la to ba
of service in esses like the present, it must
ba given promptly. In Northern P. E. Co.
r. Wall, 241 U. S. 87, 01, 02, SO L. ed. 005,
007, 008, SB Sup. Ct Rep. 493, this court
dealt with tha requirement of a bill of
lading that the ahlpper must, aa a eondi-
tion precedent to hi* right of recovery for
injury to cattle In transit, give notica In
writing to some officer or agent of the initial
carrier before the cattle were remored from
the place of deatination, and held that such
requirement must be complied with by giv-
ing notice to the agent of the delivering
oarrier, aa the Carmaek Amendment makes
such carrier for this purpose the agent of
the Initial carrier. And see Chesapeake 4
O. R. Ca. T. UcLanghlin, 242 V. S. 142,
61 L. ed. 207, 37 Sup. Cc Rep. 40. The Oar-
mack Amendment reguirea the receiving car.
rier to issue a through bill of lading, and
makes that blU of lading the contract of ship-
ment, and the Initial carrier la made liable fdrS
injuries in the course of transit over oonJt
necting lines. Hie requirement that notlc*
in writing of a claim for damages shall ba
given in snch eases to the delivering car-
rier, who is the agent of the initial carrier
for the purpose of completing the shipment.
Is but reasonable. In Georgia, F. & A. R.
Co. T. Bllsh mil. Co. 241 U. 8. 100, SO Ii.
ad. 048, as Sup. CL Rep. Ml, it was hdd
that a stipulation of this kind waa oom-
A^iOOglC
n SDFRKUB OOUKT BKPORTER.
On. Tan,
piled with wImd tita noUo* in wriUng waa
given by telESTKm vitUn tha tine nsmed In
the bill of lading.
It la not difficult for tha ecnulgnee to oom-
plj with a requiremait of this kind, and
gifs notice In writing t« the agent of the
deliveriog carrier. Such notice puta In pei-
maneot torm the evidence of an intention
to claim damagea, and will aerve to call the
attention of Uie carrier to the condition
of the freight, and enable it to make auch
invcE ligation ai the facta of the caaa require
while there is opportunity lo to do.
In thta CMC no attempt wai made to give
■uch notice In writing to the agent of the
delivering carrier. The record abowa the
delivering carrier had a freight agent at
the place of delivery in charge of the docka
upon which the peachea were delivered, and
he teatiflea without contradiction that no
■uch notice was given to him; that he waa
acquainted with Adam Miller, the conaignee,
a commieaioQ merchant in New York city;
and that he never heard of any claim for
damage* until after the beginning of the
present euit. The fact that the peachea
were greatly depreciated waa known to the
oonaignee very ahortly after arrival and
within aufficicnt time to have enabled him
to give notice in writing within the time
fixed of his intention to claini damagea.
It ia true that the reoord contain! teiti-
Biony tending to abow that it would take
more than thirty-itx houra to eeparato the
good peachee from the bad, and to re-crate
eand aeil the good onea. But the bill of
S lading in this caee only requires that
* "claims for demsges muat be reported'by
the conaignee, in writing, to the delivering
line" within the time named. Thia bill of
lading contained no atipulation requiring a
■peciflc claim to be Sled within thirty-aiz
hours, filing the amount of damages to be
claimed. It was entirely conaiatoit with
titie requirement, on discovery of the bad
condition of the peaches, to have given no-
tice within the time stipulated of the in-
tention to make a claim for damagea, al-
though the exact amount of the claim might
not have been ascertained, Thia would have
given an opportunity for the delivering car-
rier to moke the examination which it waa
the principal purpose of the atipulation to
afford. Northern P. R. Co, v. Wall, aupra;
St. Louie, & S. F. R. Cto. v. Keller, BO Ark.
SOS, 313, 119 S. W. 2S4, El Am. Neg. Bep.
622. As was said in the Keller Case; "The
contract of shipment in this case specifically
provided that, before a recovery could be
had, a notice In writing must be given of
loB8 or damage within thirty hours after
the arrival of the peaches at destination and
their delivery; that is to aay, a notice of
the intention to elaim damagea must bo ao
givKL And hi thti CMO an(& notiee waa
not givcd." Complianoa with the require
ment of the bill of lading in thia reapeet
would leave a right ol reoov«7 within tha
period named by tha Statute of Limitatlona
If the ahipper haa a good cause of action.
Pennaylvanla Co. v. Shearer, Tti Ohio St. £54,
lie Am. St. R(p. 730, 79 N. &. 431, 0 Ann.
Cas, IS, aupra.
We find nothing nnreaaouahle In the atip-
ulation concerning notice, and there wm
no attempt made to comply with it. Wa
therefore think tha supreme court of A^
kanaaa erred in holding that verbal notioa
to the dockmaatar of the condition of tha
peaohea waa a oomplianee with the terma of
the contract
We may not« that this eaae aroaa befora
the paaaage of the Act of March 4, IBIS
(38 SUt. at L. 1106, chap. 176), nsidatinft
among other things, this feature of a bill
of lading iaaned under tha Carmaok Amaid>
On eroaa writ of amir. Ho. 706, a reveraal*
ii aought oftha Judgment of the Buprema*
Court of Arkanaaa aa to tha five can when
the damaged condition of the peachea waa
shown to be known to the longahoremen.
This eroee writ involvea the liability of tht
carrier under the blU of lading, and It la
aaaigned for error that the itipulaticm ia
question vloiatea the aet of Congreaa known
aa tha Hepburn Aet and tha Carmadk
Amendment, and there are other reason*
aaaigned for tha alleged Invalidity of the
stipulation in the bill of lading. Ilils mnrt
has Jurisdiction upon the eroaa wriL Aa
to these ears, we think the condnalon
reached by the Supreme Court of Arkanaaa
was a correct one, and npon the eroaa writ
of error the Judgment le affirmed. Aa to
No. E7fi, the writ aued out by the railroad
company, tha judgment of the Supreme
Court of Arkansas ia reversed, and the cauaa
remanded to that eonrt for further pro-
ceedinga not ineonaiatcnt with tha opinicn
of thia court.
OLIVIT BROTHERS.
OODRTB C=394(1S)— Ebbob TO Statx Cocbt
— Fbivoloub Fede&u. QUEBTIOir.
1. The contention that the owner of tha
shipment, or someone shown to be duly an-
thorized to act for him in a way that would
render any judgment recovered in the so-
tion against the carrier res judicata in any
other action, ia what waa meant by tM
i, chap. 3591, | 7, pan. 11
I* loplc A KEY-NUUBER In all K«r-Namt«red Dlnsts A Indexee
PENNEnaVAmA K. 00. t. OUVIT BROS.
tnd 12, Comp. Stat. 1913, 1 8502), to the Act
of Pebruarj 4. ISST (24 Stat at L. 388, chap.
104), I 20, that an; common carrier receiving
property for tmnsportation ftwn a point In
one Rats to a point in another atite shall
l*au« a receipt or bill of lading; therefor, and
■hall be liable to the lawful holder there^ for
anj losi, diimase, or Injury to such prop-
erty, ii Dot BO frivoloui aa not to serve aa
the baaie of » writ of error from the Fedeml
Supreme Court to a atate court to ri
a judgment rejecting auch contention.
red. Note.— For otbtr eaiM, ■•• Courta, Cant.
Dfg. 1 10«.]
Cakriirs iS=t76— Liabujtz rox Duuob—
Carmace Auekdueht— "EiAwrui. HoLiv
KB."
2. The worda 'lawful holder," a
the provision of the Carmack Amendment of
June 29, 1906 (34 StaL at U EtOS, chap. 3S91,
1 7, pan. 11 and 12, Contp. StaL 191». S S592).
to the Act of February 4, 1887 (24 Stat at L.
386, chap. 101), { 20, that any common carrier
reoeiving property for tranaportation from
% point In one state to a point in another
«t«te ahall issue a receipt or bill of lading
therefor and shall be liable to the lawfiU
holder thereof for any loai, damage, or in-
JU17 to auch property, cannot be said to
mean only the owner of the ahlpment or
■omeons aliown to be duly a.nthorlzed to act
for him In auch a way aa to render any
adgment recovered In the aetion against
e carrier res judicata In any other action,
althouf!h by g 8 of the earlier act « carrier
ia made liable "to the person or peraons in-
jured" In consequence of any Tlolatlon ol
the act, since to adopt this view would
permit the general purpose of the latter
■action to control the purpoae of the ai
ment, which is special and deflniteli
Csses the lawful holder of the bill of
Ing to be the person to whom the carrier
•hall be liable.
[Sd. Note.— I'Vn- oUi«r oases, ms Canian,
Cent. Dig. {[ 266-i7], Ka.
For oUier dcBnItlDu, SM Words and Fbrsmeo,
Lawful Hatdpr.]
TxiAL ^=2fl0(7)— Erbor in InsTRUCTion
Odbed bt Otfikb 1\htruction.
S. Error, if any, in the ruling of the
trial court In an action sgainat a carrier
for damages caused by delay in traniport-
ing an interstate shipment of perish able
freight, that merely proving an accumula-
ti<m of freight or a strike did not shift the
burden of pioof, but that, to complete Ita
defense under strike and accumulation of
freight clauses in the bill of lading, the ear-
rier must show that auch strihe or accumu-
lation of freit;ht caused the delay, ia iu>t
prejudicial wliere tlie jury were otherwise
carefully instructed that the carrier had
proved a cause beyond its control, i. 0., ■
strike, and that if no negligence on its part
was shown it was not liable, and that the
burden of proving such negligence was upon
the plaintilT, and a like instruction waa
given as to any cause beyond the carrier's
eoDtrol, including an accumulation of
freight.
[x3. NDte.—For othar oaasa, ■•• TrtaL Cent-
Dig. I no.]
Carriera <S=>32(1.) — Dxlay in Drliveby
— RccovRRT or Frxioht Paii>— Rrbatrb.
4. The recovery, aa a part of the dam-
agM canted by a delay in traDsportlng an
interstate ahlpment of perishable frei^t, of
the freight paid upon delirery at destina-
tion, is properly allowed, notwithstanding
tbe prohibitions of the Int«ntato Com-
merce Act of February 4, 1887 (24 StaL
at L. S7B, chap. 104, Comp. SUt. 1918,
g 8663), against dertationi from tbe flled
tariffs and schedulea, and against rebates
and undue preferences and dUcrimination^
— .especially wbers the bills of lading re-
quire damages to be computed upon the
basis of tbe value of the property at tlia
place and time of abipment.
[Bd. Nota.— For ochor caat» se* Oarrlors,
Cent. Die 1 S3.1
[No. 677.)
IN BRROR to the Supreme Court of the
State of New Jersey to review a jud^
inent aiBrmed by the Court of Errors and
Appeala, of that atato, in favor of plaintUf
in an action against a carrier to reeover
damagea for injury to interstate shipmoita
of perishable freight. Affirmed.
See same case below, 88 N. J. I« 878, M
Atl. SSB.
The facts are atated in the opinion.
Messrs. Frederlo D. McKenney, John
Spalding Flannery, Albert C. Wall, and
Jolm A. Eartpence for plaintiff In error,
Messrs. £dward P. Stout and (Seorge 8.
Hobart for defendant In wror.
'Mr. Justice MoXenna delivered the opiii<>
ion of the court:
This is a consolidation of actions, caeh
action BSpreased In a number of counts, andS
each count praying for the*recovery of the*
sum of (500 for a carload of watermelons
received, as it is alleged, and accepted hy
the railroad company to be transported and
delivered within a reaaonable time to plaln-
it Jeraer City, New Jersey, and alleging
that by reason of the failure so to transport
and deliver, a lar^e number of the melons
re wholl7 lost and the remainder delivered
a bad and damaged condition.
The car numbers are given, the placea of
receipt, all of whieh were in Korth Carolina,
and the datea, all between July 28 and
August 2, 1B12, both datea Inclusive.
le answers of defendant denied the al-
legations of the complaint and set up, be-
sides, the following defenses: If the prop-
erty came into the handa of defendant for
the purpose of transportation, it did so as
to each and every count of the complaint
under tbe terms and conditions of a certain
bill of lading issued to plaintiff by the ini-
tial carrier of the property, pursuant to the
provisions of the Intn-stata Commsre* Act,
constituting an azpreM agreement wbersbyQI(^
the defendant wu to ha rdUered from mafcS
lo A KBT-NDUBBB In alt Ksr-Nnmberad Dlf H
«•
17 ffOPBEUB COUBT KEPORTKS.
Oor. IMmm,
uid lU UkMIHt for dunmga to tht property
nraltliig bom dalaj In tnu^orUtloB and
dalirwy U tha dalkj wm wvMd bj {•) »
■trike or ifaikei unong dafanduif * amplof-
«esi (b) Ml KcwmrnlKtion of freight at uij
point; <e] or bj U17 othsr cause or ouum
over whieli delenduit hkd no oontrol.
It is allied that a atrllce did talu
place among defendant's employees and con-
tinued from J11I7 S, 1912, to the Slet of
th&t month, whidi itrlke was tlie oaiuo of
the alleged delay; also that an accamula-
tkin of freight did occur at Jersey City,
which continued from July 0 to August IS
and beyond.
It Is furthar aQegad as a defense Uiat ao
elaim for the loos or dajnaige to tho prop-
erty was made In writing, a* required by the
laspectiTa bills of lading of defendant at
the point of delivery of the property within
Stan di^ after its dellTery, or after due time
• for its delirsry to plaintiff,* though it was
agreed betwemi plaintiff and defendant that
such claim should be made at the tlnie, plaoa,
and in the manner menUoned.
Nor was there any claim for inch loia or
damage made in writing to defendant at the
point of delivery or point of origin within
four months after the delivery of the prop-
erty, or af tar a reasonable time for delivery,
thou^ It was expressly agreed that such
claim sliould be made at the time, place,
and in tba manner moitloned, and, if not
so made, defendant ehould not be Jlabla.
It will lie observed, therefore, that the
basis of the action is that certain carloads
of watermelons were received for shipment
ky defendant at certain places in North
Carolina for transportation to and delivery
at Jersey 01^, New Jenej, and tiiat do-
fandant faile^ to transport and deliver the
Hme within a reasonable Um^ in conse-
quence of which a large number of the mel-
mis ware loet and tlie others delivered in a
bad condition.
In point of fact the melons were not do-
llverad to defendant in North Carolina, but
in such stato to a carrier with which defend-
ant had connaetioni, and were delivered to
defendant at Bdgemoor, I>alawBT«^ to be
transported from there to Jersey Gitf, and
were eo transported.
The melons were transported on tbrongh
hills of lading issued by the initisi carrier,
which contained the atlpulatione apon which
the defenses are based, to wit: (1) that
the delay In transportation and delivery waa
eanaed by a atrik^ accompanied by demon-
■trationa of violence over which defendant
had no control and against which it could
not contend; (2) that there was a eonges-
tlcoi of frei^t, due to oausea beyond tta
control I and (S) that claims for damages
were not made witliln the time required by
tlia btOs of lading— Oat Is, within ten days
In soma eases, thirty days In others, and
four motttlis in othara.
Th» ultimate basis of these defeases ls|
the Cannack* Amendment to the Intentate*
Ctanmeroa Act. What this amendment ra-
quires of shipper and carrier beoomea tlie
question In the ease.
The ease Involves, as wa have said, a num-
ber of actions tried together and submitted
to one Jury. Plaintiff vras plaintiff in all
of them and obtained jadgment which was
affirmed by the oourt of errors and appeals
on the authority of another case of like
kind.
Here was a stipulation which concentrat-
ed the ISBuea and removed from controversy
the amounts involved. For instance, as to
the latter it was atipulated that the value
of the melons at the time and place of ship-
ment waa 113,400, and that they were sold
at the place of delivery for |8,B9G, being the
beat price which could be obtained for them,
owing to their damaged condition. And it
was further stipulated that the freight
charges paid by plaintiff amounted to the
sum of $6,484.59.
As to the other alemoita, it was stipulated
that Uie melon* were received and accept-
ed by defendant at Edgemoor, Delaware, for
transportation to Jersey City, New Jersey,
In accordance with the bills of lading; that
the uaual and customary time for transpor-
tation was about seven hours, under the
most favorable circumstances; that plaintilt
was, at the time of bringing the actions, and
la now, the lawful holder ol the bills of
lading; that the melons were received at
Edgemoor by defendant In apparently good
order, but were In a damaged condltioa
when delivered to plaintiff at defendant's de*
livery yard at Jersey City, and that claims
for damages were duly made in vrriting, as
required by the bills of lading.
The coses are designated as the "64-eount
cas^" the "13-count case," and the "11-connt
case." All of the bills of lading in the "U-
eount case," one in the "18-count case," and
four in the "ll-connt case," contain a provi-
sion exempting the carrier from liabili^ for
lose or damage resulting 'from riots or«
strikes." Twelve of the*bills of lading In?
the "IS-eonnt ease" and seven in the "11-
eount eaae" provide that the carriers should
"not be liable for any Injury to or decay of
fruits or vegetables, or other perishable
freight due to detention or delay occasioned
by on accumulation of freight at any point
... or to any other causes over whioh
the carriers have no control." And there Is
difference in times of demands.
A motion is made to diamies on the
ground that no Federal question appears
in the rsourd, or alternatively. If one ap-
A^iOOglC
lUC
PBNNSYLTAHU R. Oa t. OUVH BBOa
«n
peut, it- U wlttumt merit. In mpport of
tba eontentionj it it ikid the qneetione In
the COM ve (1) whether. It being etlpnhit-
•d thet pleintiff was the holder ol the bille
of lading, it was the owner of the melons
nt the time the ihipmenta were made) (S)
wbetlier there wm* an^ evidence of a«^li-
gence of defendant wUeb ahould have been
submitted to the Jury; and (S) whether
plaintiff was entitled to recover the freight
paid by it.
The firit question involve* the Carmack
Amendmeiitj and, conaidering it, the court
of errore and appeals decided that "any
lawful bolder of a bill of lading laiued b;
Uie initial carrier pursuant to the Carmack
Amendment . , upon receiving prop-
erty for interstate transportation, may
maintain an action for any loss, damage, or
Injury to such property caused by any oon-
itMting carrier to whom the goods are de-
liverwl." [88 N. J. L. 236, Se Atl. OSB.]
Citing Adams Exp. Co. t. Croninger, 226
U. a 4S1, 67 L. ed. 914, 44 Ii.ILA. (HjS.)
2S7, 33 Sup. Ct. Rep. 148.
We are not prepared to say that a eon-
test of this view Is frivolous, and ttie mo-
tion to dismiss in denied. Besides, It Is con-
tended that the shipments having been In
interstate oommeice, they are subject to and
governed by the luterstata Commeroe Aet.
Coming to the merits of the question,
kowever, we coneur with the oovtit of errori
and appeals in Its construction fl the Car-
mack Amendment. It provides: That any
Bommon carrier . . . receiving proper^
Stbr transportati<m fvom a point in one state
Su> a point in*nnollier state sliall iesue a re-
ceipt or bill of lading therefor and shall
be liable to the Uwfvl hoMer [ItallM onra]
thereof for any lo*^ damage, or injury to
such property caused by it. . . ." [34
But. at L. US, chap. 3061, Camp. Stat IBIS,
I Sfi92.3
The emdal words are "lawful holder."
Defendant contends that tbey mean "tiie
owner or someone shown to be duly author-
ised to aet for him In a way that would
render any judgment recovered in luch an
acUon against the carrier res adjndicata In
any other action." And | 8 of the Inter-
state Commerce Aet is referred to as tortl-
Qing such view. It provides that "sveh
common eairier shall be liable to the per-
son or perBons injured" in consequence o(
any violations of the sct.i
To accept this view would make I 8 eoof
tradiet the Carmack Amendment (| 20), It
having only a general purpose, whereaa the
purpose of the amendment is qiecial and
definitely expresses the lawful holder of the
bill of lading to be the person to whom the
carrier shall be liable "tor any loss, dam*
eg^ or Injury" to property caused by It.
Adams Exp. Co. v. Croninger, supra.
The next eontentlon of defendant Is that
Qiere was error in applying the burden of
proof upon the motion to direct a verdict
lor defendant.
The grounds of the contention urged at
tbe trial and now repeated are that, by cer-
tain of the bills of lading, the carrier is re*
lieved from liability In case of a strike, by,
oertaln others In case of delays occasioned*
]jj causes bsyond'lts control, and by otheri*
in case of an accumulation at freight proved
to be a matter heyond the control of the
carrier. And these causes having been
proved. It is contended the carriers were
broii^t within the protection of tlie stipula-
tion, and it became Incumbent upon plain-
tiff to show that defendant. In one way or
another, failed "to handle the altuation at
that time in a way which was free from
negligence." It was and is contended that
the whole issue was shifted "from the gen-
eral all^^ation of negligence to the allege
tton that the Injury was caused because the
defendant tailed to perform the duty which
U was obliged to perform nnder the law."
Counsel concede that the whole question
was whethtf, whm the proof was that "thora
was the excepting eaua^" defendant did
what It "should have dona to meet the sltnai-
tion;" and the burden was upon the plain-
tiff to show that the earriec did not do what
It "ought to have done."
The court rejected the eontentlon. H
replied tiiat merely proving an accumula-
tion of freight or a strike did not shift the
burden of proof, hut that to complete ita
defmse the carrier must show that the
strike or the accumulation of freight caused
the delay in executing its contract to deliver
the property.
If we should grant that the ruling wat
technically erroneous, its effect in the ease
can hardly be estimated. In view of the in-
structions of the court to the jury, entirely
considered. They are too long to qoot^
but we may say of than that they were very
1 "See. B. That in case any eommon car-
rier subject to the provisions of this aet
■hall do, cause to be don^ or permit to be
done any act, matter, or thing in this aet
prohibited or declared to be unlawful, or
■hall omit to do any act, matter, or thing
in this act required to be done, su^ eommon
enrrler diall be liable to tiie owson or per-
«as injured thareby for the toll amount af
damages sustained in conseqnence of any
such violation of the provislonB of this aott
together with a reasonable counsel or at-
torney's fee, to be fixed by tlie court In eveir
case of recovery, which attorney's fee sbaU
b« taxed and collected aa part of the costw
In tiie ease." 24 Stat, at L. 882, diap. VH,
Comp. Btat 191S, | 8678.
D,at,z.d-,.'^-.00'^IC
<T1
S7 SDFKEMB COtTBT REPORTER.
Oct. Ikuf^
e»r«full7 «zpT«ued to give the Jnij the ele-
meDU of decUion.
The court told the jurj that defaaduit
had proved a cauie b^ond ita control ; that
It, a strike; sod, at the request of defendaiit,
further inatnicted that if do negligecce on
the defendant'* part was ihowu, defendant
waa not liable, and that the burden of proT-
Ing such negligence was upon the plaintiff.
A like Instruction waa girai ai to an;
SeauBa beyond defendajifi control, Including
Tan 'accumulation of freight, if reaaonabls
care naa ezercited b; defendant to reliere
tb« lituaUon, that u^ligencc was not to
be preeumed, but must be afSnoativel;
proved; and that the burden of proving It
was upon plaintiff. "The queatlon ia," the
court taid, "whether or not, in the light of
what occurred over there, the defendant In
this case has been ibowo by the greater
wei^t of the evidence t« have been negli-
gent in the forwarding and the delivery of
this freigbL It it has been, why these plain-
tiffs are entitled to recover and to have you
assess their damages, unless some of these
other defenses have been mads out hj the
greater weight of the evidence. If the de-
fendant has not been shown to have been
negligent in the particular indicated, whj,
then, manifestly, the defendant is not re-
■ponsible, and the verdict in all the cases
where these nilea apply would have to be
(or the defeBdant."
Defeadant, however, contended that there
was not eufflclent evidence of negligence to
Justify the submiuion of the caae to the
jury. Counsel, in attempted support of
the contention, select certain elements in the
ease, ignoring others and tiieir probative
value. That is, counsel ignore the fact, of
which there waa evidence, that the melons
were received for shipment after the strike
was over, and the fact, of which there was
evidence, that the delay in delivery was
caused by the use by defendant of tracks
where melons were usually delivered for
the delivery of peaches, usually delivered
elsewhere, to the exclusion of melons, which
were placed in storage trades at the "mead-
ows."
The fourth contention is that plaintiff
■houtd not recover as part of its damages
the freight paid upon delivery at destlna-
The contention is rested upon the prohibi-
tion of the Interstate Commerce Act tgainst
deviation from the filed tariffs and schedules
«aod against rebates and undue preferences
jgand discriminations. It is not asserted in
* the'present case that there was an evasion
of the statute or an attempt to evade, but
that the possibility of such result makes
the recovery of freight UI^^. It li urged,
besides, that the melons wera carried to
deatination and were there sold by plain-
tiff or on Its account, and that freight thera-
by accrued and was properly paid- For
which 2 Hutchinson (m Carriers, 3d ed. |
602, Is cited. But the cited authority shows
that to be the rule when the loss or damsg*
results from no fault or negligence of the
carrier. And, besldee, to the contentions
the plaintiff opposes the terms of the bills
of lading, they providing that the amount
of loss oT damage for which a carrier is
liable "shall be computed on the basis of
the value of the property (being the bona
fide invoice price. If any, to the consignee
Including the frelgbt charges, if paid) at
the place and time of shipment. . . ."
Some of the bills of lading do not contain
this provision, but It was agreed at the trial
that the proper measure of damages was to
be computed upon the basis of the value of
the property at the place and Ume of ship-
ment and that such measure should be read
into all of the bills of lading. As plaintiff
further aaya, to recover the damages sus-
tained by it, based upon this tsIds, plaintiff
must receive from defendant the difference
between this value and the proceeds of the
sale, and the freight paid. In this we con-
cur, and therefore there was no error in
including In the recovery such freight. Shea
V. Minneapolis, St. P. A 8. Ste. M. R. Co^
B3 Minn. 228, 6S N. W. 468; Davis v. New
York, 0. 4 W. R. Co. 70 Minn. 37, 44, 78
N. W. 823 i Homer v. Missouri P. R. Co. 7»
Mo. App. 285, 294; Tlbblts v. Rock Island
k P. R. Co. 49 111. App, 607, B72. The plain-
tiff was no more Uian made whole.
AfQrmed.
(HI Q. 8. UI>
PBNNBYLVANIA RAILROAD COMPANY,
Plff. in Err.,
ISAAC W. CARR and Fannie O. ErtM,
Partners, Doing Buaineas ma Isaac W.
Carr t Company.
This case is governed by the decision In
Pennsylvania B. Co. T. Olivit Brothers,
ante, 468.
IN ERROR to the Supreme Court of thn
State of New Jersey to review a judg-
ment affirmed by the Court of Errors and
Appeals, of that state, in favor of plaintiff
in an action against a carrier to recovef
damages for injury to Interstate ahipmento
of perishable freight. AfBrmed.
,A_^OOglC
Lorr ▼. pnruAN.
471
Sae ■
• bdow, 88 N. J. L. SSfi, tW
The faeta are stated in the opinion.
Ueasri. Frederio D, HoKenner, John
6palding Fianuery, Albert C. WaU, and
■John A. Eartpence for plaintiff In error.
Uewia. Edward P. Stoat and George S.
fiabart (or defendants in error.
ill, Juitice HcKenna dellrcrad the opin-
ion of the court:
Action in leren coonta praTlug for dam-
ages caused bj delaf in the dellverj ol cer-
tain watermelons received for shipment and
■accepted bj an iniUal carrier at certain
places In the state of Qeorgia, to be trans-
ported to Jersey Citj, New Jerse;, and
transferred in good condition to ddendant'
line at Edgemoor, Delaware^ a point oo the
A Tiolation of the contract of earrlage Is
eharged in that the melons were not trans-
ported within a reasonable tlm^ hj reason
g^of which a large part of them was lost and
*the rest delivered tn a damaged condition.
« 'The defCDBea were denials of the allega-
ticms of the complaint, and an averment
that the delay in delivery waa caused by a
strike on the road, for which cause, under
the bills of lading issued t^ the initial cai^
rier pursuant to the Interstate Commerce
Act, defendant was exempt from liability
for damages. This was one of the defenses
In No. 577 [243 D. S. 674. CI L. ed. 908, 37
Sup. Ct. Rep. 463], with which this case waa
-Mibmitted.
Judgment waa entered for plaintiff by oon-
Mnt, and that plaintiff's damagea be as-
•essed at 91,841.13, "reserving to defmdant
ths right to reduce said judgment in accord-
ance with its exceptions and objections per-
t^ning to the measure of danagaa, and
without prejudice to defendant to appeal
from said judgment, pursuant to law."
The judgment was affirmed by the Court
«( Brnira and Appeals. 8S N. J. Ulw, 23S,
fie Atl. 5S8. Indeed, it was upon the opinion
In the latter case that the Court ot Errors
and Appeals decided No. D77.
On tJie authority of No. 677 the motim
to diamisB which is made is overruled and
the judgment is
Affirmed.
OoRBTTruTioNAi. Law ^=271 — Ddis Pbo-
CEBS or Lav — Criminal PaoCEEDtRaB—
AiTiKiunCE or Sentence by Divided
OoVKt — Pabticipation by Newly Ap-
poiHTED JnooE ts AmauANCE.
The aHlrnuuice by an equally divided
court, cMiformably t« Oft. Coda, 1011^
I 0116, of a sentence to life imprisonment
upon a conviction for murder, did not de-
prive the prisoner of his ilber^ without due
process of law, contrary to U. S. Const.
14th Amend., although but one half of the
judgea of the appellate court who partici-
pated in ita opmion heard the argumuiL
and although one of the judges who voted
to affirm was not even a member of the
court when the case was argued, where,
after his appointment, notice was given to
Esrtiea and counsel in all cases then pend-
ig in which argument had been heard prior
to his appointment, and which were to ba
passed upon by him, setting the time for ths
rsargument of anch cases.
[Bd. Note.— For other oases, s
Law. Cent. Die- I TtO.]
[No. 8B4.]
of Georgia to review an order refusing r*.
lief by habeas corpus to a person in cus-
tody under a criminal ssntence. Affirmed.
The facta are stated in the opinion.
Messrs. Jobn Randolph Cooper and T.
A. Wallace for appellant.
Ur. Clifford Walker, Attorney Oenural
of Georgia, for appellee.
Mr. Justice UoKenna delivered the opIa-!P
ion of the court:
Petition in habeae corpus, in which ap>
pellant was petitioner, whii^ presents the
ioUowiog facts, stated narratively:
Appellant is confined in the common jail
of Ware coun^ in execution of a life sen-
tence upon conviction for murder, the sen-
tence having been affirmed by the supreme
court of that state. The court was evenly
divided in opinion, and therefore the judg-
ment waa affirmed by operation of law un-
der the proviiiou of that part of 9 6110 of
the Code of Geor{^ of IBIO which is as
follows; "In all cases decided by a full
bench of six justices, the concurrence of a
majority shall be essential to a judgment
of reversal; and K the justices are evenly
divided, the judgment of the court below
shall stand affirmed."
Three of the judges did not hear the argu-
ment, but participated in the opinion of the
The case was argued before tfae supreme
court on June 3, lOIfl, and when it waa
argued Justice Gilbert waa not even a mem-,
ber of the court, but was appointed ing
■September, ISIS, to fli the place made vacant*
by the death of a member of the courL
Upon these facta it is averred that ap-
pellant waa denied a right guaranteed tiT,
WW H* isme leple A K
r-NtniBER la all KsT-NninbeTad DicMla A Index
!gic
'474
37 SUPBKUE COUB.T SEPOKTEB.
Oos; Tamu,
Om ConatitaUon uid Urn of tlu United
Statu, — tbe benefit of counsel uid right to
b« heaxd, — which abridged his pririlq^ utd
Immunitie* >■ a citizen of the United States,
deprived bim of libertj without due prooeH
of law, and of hie ri^t to have a judieiBl
determination of ^^* Aiiit or Innooenee by
a reriewing court.
Attached to the petition wae a teanecript
of the record la the trial oonrt and the
■npreme court.
His prater to be discharged was denied.
An appeal was allowed, the court certifying
tliat liisra was probable cause.
It appears from the transcript of the
record tliat the judgment affirming the aen-
teoee wu rendered sft«r Justica Gilbert had
taken his seat as a member of the oourt,
and Uiat if he had not taken psrt the judg-
ment would have been reversed. It sleo ap-
pears that after the judgment a petition for
rdiearing was filed which attacked the stat-
ute permitting a judgment of affirmance by
a divided court npon the same grounds as
those alibied In the petition for habeas nor-
pus and now urged here, and also attacked
the judgment for the participation therein
of Justice Gilbert.
It was stated in the petition for r^earing
as follows:
"This ease having bean heard before three
justices by oral argument, or rather Wash
Lett having appeared by attorneys, the ease
having bean passed upon by the court as a
whol^ consisting of the entire sis judges,
and the defendant not having been heard
before the said six judges, either in person
or by attorneys, movant begs leave to call
the court's attention to | 0110 of tha Code
«i Ul» whkh U as followat
"'Whmevar any jostles in either divi-
sion differs from the other tw» as to anya|
particnlar case psndinf*befoTe it, such ease,
shall go to the court aa a whole, or any one
or more justices of the other division may
be argued before one division only, it may,
upon its own motion, but not otherwis^
order a reargument therein,' "
It was suggested that the court "hear rs-
argument in this osse on its own motion"
because the oourt had overlooked the sso-
tion of the Code quoted above and the provi*
sion of the Conatitution of Uie United Statea
which gives assurance that no person shall
be deprived of his liberty without due proo>
ess of law.
The petition was filed November 24th and
overruled December 19, 1S16. Upon what
consideration it does not appear; but it may
be presumed that the court was of opinion
that the statute of the state had been ade-
quately complied w{th. The Attorney Gen-
eral asserts in his brief, and there is no
denial by appellant, that after the appoint-
ment of Justice Gilbert notice was givoi to
parties and counsel in all cases then pending
In which argument had been heard prior to
hii appointment, and which were to be
passed on by him, setting a time for reargu-
ment of such eases. The appellant, there-
fore, was given an opportunity to be heard.
Besides, the right of appeal is not essential
to due process. Reetz v. Michigan, 18S U.
S. GOB, 608, 47 L. ed. EOS, S6B, 23 Sup. Ct
Rep. S90. It was, therefore, competent for
the state to prescribe the procedure and oou-
tUtlons, and the cases oited I^ appellant
are not appoiritob
Order afDnaed.
>v Google
FOLLOWING ABE MEMOEAHDA
CASES DISPOSED OV AT OCIOBEB TESH, 1916,
OB ocnmwna Diaro«u> o* ta x
nutE C. Stkttlcb, FlKintUt in Error,
Edwin T. O'Haka «t »1., ConBtitating tha
InduitrlAl Welfare Commiuion of the
Bute of Oregon [No. 2S] ; tnd Ajoha
SUFBOif, FUlntlff in Error, r. Sowm V.
OHau, at &!., ConrtitiiUiig Uie Industritl
WeUtre Commiaaioii of tha SUtc ta Ore-
gon [Ko. SO].
In Enror to tha Supreme Conrt of the
State of Oregon.
Messrs. Charles W, l^aitan and BoniB Q.
Brown for plaintiffs In error.
Ur. Felix Fnuikfnrter for defendants in
•TTor.
April 9, IBIT. Per Curiam: Judgments
(89 Or. 019, 130 Pac. 743, Ann. Ota. 1916A;
217, and 70 Or. 261, 141 Pac. 1B8) affirmed
with costs bj an aqoallr divided court.
ViOKw Taxa3, PetltlonBr, t. Uitltra
States. [No. BSB.]
FetiUon for n Writ of Certiorari to tha
United Statas Cirouit Court of Appeals for
tha Second Circuit.
Mr. Terence J. HcManus for petitioner-
No brief fliad (or reapondenL
April >, 1017. Granted.
UmTD Staiks, Patitlonar, ▼, Biooklth
East^m Dunioi Tkbiohal. [Ho.
1014.1
PeUUon fw a Writ of Cartioiul to the
United States Ciroait Court of Appeals for
tha Third CircuiL
Mr. Solicitor Qenaral Davis lor petitioner,
Mr. Henrj B. Closaon for reapondaoL
.^ril », 1917. Granted.
CKHTKU. TBU0T COUPANZ OT Nxw YoiK,
PetiHoner, t. Tkxu Oovaufr. [No.
am-
Ptrtltlon for a Writ ol Certiorari to tha
United States Circuit Conrt of Appeals for
tha Fifth Circuit
Mr. Arthur E. Tan Bmnt for petitioner.
Ur. Amoa L> Beat; for raqiondent.
J^ril 9,1917. Denied.
Ckntral Tbubt Coupart or Nkw Yobk at
al.. Petitioners, t. Tuub Coupaht. [No.
sgg.]
Petition for a Writ of Certiorari to the
United States Circuit Court ol Appeals for
the Fifth Cirouit.
Measn. George Walwood Unrray and Ar-
thur H. Van Brunt for petitioners.
Mr. Amos L. Beaty for respondent.
April 9, 1917. Denied.
BSS.]
PeUUon for a Writ of Certiorari to the
United States Circuit Court of Appeals tta
the Sixth drcult.
Mr. Frank E. Robson for petlUoner.
Mr. Sldne; T. Miller for reapondent.
April 9, 1917. Denied.
Btxok F. BiBBm, Tmatee, ate, PeUUoner.
T. CUOLINB S. Kead at al. [No. 1008.]
Petition for a Writ of Certiorari to tha
Uolfad Statas Circuit Court of Appeals for
the Seoond Cirettit.
Mr. Charles A. Boston for petiUoner.
Mr. Charlea E. Rushmore for responduita.
April B, 1917. Denied.
CuoLm B. Bead et aL, Executors, ate,
PetitioDere, ▼. Btboi* F. BAnnrn, Tniate^
eto. [No. 1080.]
PetlUon for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Seoond Circuit
Mr. Charlea E. Rushmore for petitioners.
Messrs. P. Tajlor Brjaa and George H.
Williama for respondent.
April 9, 1917. Denied.
Diati... ■■■-'^■.OOt^lC
476 17 SUFBEUK OODBT RBEPOSTEB. Oor. TmM,
r. Joaa B. Laiu
Owner, efa)., PsUtliHier,
•t si. [Not 1013.]
Petition for » Writ of Certiorari to tlie
United Stfttee Circuit Court ol Appeslj for
the Tbird Circuit.
Mr. RuEsell T. Uonnt for petitioner.
No appearance for reapondeuta.
Aprils, 1917. Denied.
Hatthkw Hciwabd SMut, Petltloiur,
Cbofp ConcMCTK iiAaaisEKi Cohputt at
al. [No. lOlS.]
Petition for a Writ of Certloraxl to the
United States Cireuit Conrt of Appeal* for
the Seventh Qrcuit.
Ur. Otto Hajmond Barnett for petltic
MeBsre. William Nevarre Cromwell
Lewia T, Greist for respondents
AprU 0, ISIT. Denied.
Wahkinotoit RAitWAr ft ELnrmo Coic-
PAITT, Petitioner, t. MufA L. CLASS, Ad-
mlofBtratrii:, etc. [No. 1024.]
Petition for a Writ of CerUorarl to tfae
Court of Appeala of the Dittrict of Colum-
Ua.
MeaiTi. John B. Barbour and George P.
Hoover for petitioner.
Meeara. Wilton J. Lambert and Budolph
H. Geatman for reapoodent,
^ril B, 1S17. Denied.
B Dona, Petitioner, r, HAKn-nm
Fish CospoKAnoir. [No. 1026]
Petition for a Writ of Certiorari to the
United Btatee Circuit Court of .^eala for
the Second Circuit
Mr. Max J. Kohler for petiUoner.
Hr. Henry W. Taft for reepondcnt.
April B, 1017. Denied.
UiriTED States, Appellant, r. lUJKOis Ceb-
TKAL Batlsoad CaitxAsr et sL [No.
1012.]
Appeal from the Diatrict Court of the
United State* for the Northern Diatrict of
niinois.
The Attorn^ General for appellant.
Hessra. Ednard J. Brundage and Jamei
H. WilkeraoD for reapondents.
April 9, 1917. Dismlaeed, OB motion of
counsel for the appellant.
[No. TBI.]
On Writ of Certiorari to the United
States Cireuit Court of Appeals lor the
rirst Clrealt.
Hr. Henry Wheeler for petitioner.
The Attorney General for respondent.
April B, 1917. Diamiaaed with costs, o>
motion of counsel for the petitioner.
AivBB) P. Lownx, Petitioner, r, '
E. Swxcraa. [No. 702.]
On Writ of Certiorari to the United
Bute* Circuit Conrt ol Appeals for the First
Circuit.
Mr. Henry Wheeler for petitioner.
The Attorney Qeneral for respondent.
April B, 1917. Dismiaaed with costs, «
motion of eonnsel for the petitioner.
A. I«o Weil, Plaintiff In Error, t. Ebiist
K. Black, Judge, ete. [No. 297.]
In Error to the Supreme Court of Ap-
peals of the State of West Virginia.
Meesrs. P. C. Enox, Louis Msraball,
George E. Frlc^ B. M. Ambler, F. DeC
Faust, and Charles F. Wilson for plaintiff
in error.
UMsra. T. C. Townaeud and S. B. Aris
for defendant In error.
April B, 1917. Diamiased with eosta and
mandate granted on motion of oounsel for
tbe plaintiff In error.
NoBTOLK ft WsBTrnt Rah-wat CokpaitT(
Plaintiff In Error, t. Cokheuus H. Miif
viw. [No. 820.]
In Error to the Court at Appeals for the
Fourth Judicial Diatrict, SUte of Ohio.
Mr. Theodore W. Keath for plaintiff ia
No counael appeared for defendant In er-
April 9, iai7. Diamiased with coats, «
moUon of counsel for the plaintiff in error.
SosA C. Ooom et si.. Plaintiffs in Error, t.
UiriTEs States. [No. 348.]
In Error to the Court of Appeals of ths
District of Columbia.
Messrs. Charlea T. Catea, Jr., Willisn G.
Johnson, and Henry P. Blair tor plaintiffs
Tlie Attorney Gaieral for defendant la
April 10, 1917. Dlamiflsed with easts, es
motion of counsel for the plaintiffs In error.
,A_.OOglC
iai«.
UBUOKAinU OAffga
«n
Hahdr H. Oocu) and Frodaridi A. W^Id-
ran, App«llMita, v. HxBc Paue WjlTn
CoMPAST, Tliet Naitloiul Bank of Boston,
and Citj of Boiton. [No. 85.]
Appeal from tli« Diatriet Court of the
United 8tat«a for (ha District ol Maau-
cbuMtta.
Ifeaara. Frederick S. Ddtrlok and Roacoa
Waleworth for appellant*.
Meaira. Robert BL Morae, William If.
Slehardaon, and Edward E. Blodgett for
April 18, 1017. PerCarian: Dimlwad
for want of iurlBdictlon upon the authority
of Deming t. Carliale Facting Go. S20 U.
8. 102, 106, 57 L. ed. 140, 148, 33 Sup. Ct.
Hap. 80: Coniolldated Tump. Co. t. Norfolk
A 0. V. B. Co. 228 U. S. 600, flOO, 07 L. ed.
OSe, 9S3, S3 Sup. Ct Kap. 609; St«wart t.
Kanaaa City, E39 U. S. 14, 60 L. ed. ISO, Se
Svp. Ct Kep. IS.
Br. LociB, Bah Fmaitoiboo, k ItaAB Raii<-
WAT CoMPAXT, PtainttS in Error, t.
Maud Smith, AdmlniEtratriz td the Ba-
Uto of M. T. SMle, Deoeaaed. [No. S»2.]
In Error to the Conrt of Civil Appaala for
the Fifth Bupreme Jvdiclal District of the
6Uta of Tezaa.
Meaira. W. F. E^rani and Frank Andrewe
for plaintiff in error.
Meaue. Jodeon E. Wood and Jamea P.
Haven for defendant In error.
April 16, 1917. Per Curiam: Judgment
alBnned wiOi coats ^on the author!^ of
Miisonri, K. 4 T. R. Co. ▼. Wulf, 220 U. 8.
S70, 67 L. ed. 3SS, 33 Sup. Ct Bep. 13S,
Aan. Css. 1914B, 134; Seaboard Air Line
R. Co. V. Koemiacka, 23B U. S. 3S4, 00 L.
•d. 320, 36 Sup. Ct Rap. 126, 11 N. C. C.
A. 16S; Seaboard Air Line R. Co. t. Rnm,
Ml U. B. 203, 60 II ed. lOOB, SB Sup. Ct
Bep. S67; See St. Lonia, S. F. ft T. B. Co.
▼. Seale, 2S» U. 8. 166, ST L. ed. 1120, 33
Sap. Ct Rep. SSI, Ann. Cas. 1S14C, 166.
HJlTHAWat Habfo, Plaintiff In Error, t.
BOASD or CouHTT Coiacissiomxa or
Oklasoua Cowtt, Stata of Oklahoma,
at at. [No. 422.]
In Error to the Supreme Court of the
SUta of Oklahoma.
Mr. Arthur O. Moaelej for plaintiff in
•m>r.
Mr. Charlaa JT. Eapplar for defendants In
April la, 1917. Par Curiam: DlimlMed
for want of Jnriadlctlon upon the antheri^
of Deming t. Cnrliele Packing Ca 226 U.
S. 102, 106, 07 L. ed. 140, 142, 33 Sup. Ot
Rap. SO; Consolidated Tump. Co. r. Norfolk
R. Co. 228 D. S. 606, 600, 67 L. ed. OS^
083, 33 Sup. Ct Rap. 600; 8f«wart v. Kui-
saa City, 230 D. & 14, 60 L. sd. 120, H
Sup. Ct Bep. U.
Don Laot, aa Liquidating Agent of tba
(Mclahoma City NaUonal Bajik, PUinUff
In Error, t. Holuk Ezsaxd. [No. 610.]
In Error to the Bupreme Court of the
State of Oklahoma.
MesBra. W. F. Wilson and Enoch A. Chaaa
for plaintiff in error.
MesBTB. Harrej B. Winn, Henry E. Aap,
and Henry Q. Snyder for defendant In error.
April 16, 1917. Per Curiam: Judgment
•fBrmed wilJi costs upon the authority of;
(1) Chemical Nat Bank t. Hartford De-
posit Co. ISl U. S. 1, 40 L. ad. 600, 16 Sup.
Ct Bap. 439; CapiUl Nat Bank v. First
Nat Bank, 172 U. S. 426, 43 L. ad. 602, 10
Sup. Ct. Bep. 202; Union Nat Bank v. Mo-
Boyle, 243 U. 3. 26, 61 L. ed. B70, 37 Sup.
Ct Bep. 370; (2) Kudssb City Southern B.
Co. V, H, Albers CommisEion Co. 223 U. S.
ST3, 691, 6S L. ed. 536, 565. 32 Sup. Ct. Bep.
aie; CreswiU t. Grand Lodge, K. F. 225 U. S.
24B, 261, 66 L. ed. 1074, 1080, 32 Sup. Ct
Bep. 822; Norfolk & W. B. Co. t. Conlej.
236 U. S. OOfi, 609, 610, 60 L. ed. 74E, 741,
748, P.U.R.1B1GC, 293, 36 Sup. Ct Rep. 437;
(3) Southern P. C. t. Schuyler, 287 U. B.
601, 611, 612, 67 L. ed. 662, 669, 43 T.R.A,
iS£.) 001, S3 Sup. Ct Bep. 271.
Skaboabd An Lm Bailwat, Plaintiff in
Error, v. Cznthia WiLLiAxa, Adminietrm-
triz of the EiUta of W. E. Williams, D»
ceased. [No. 732.]
In Error to the Supreme Court of the
State of South Carolina.
Mr. J. B. 8. Lyles for plaintiff in error.
Mr. W. Boyd Evans for defendant in er-
April 16, 1917. Per Curiam: Judgment
affirmed with ciHta upon the authority of
Chicago Junction B. Co. v. King, 222 D. a
222, 66 L. ed. 173, 32 Sup. Ct Bep. 70; Sea-
board Air Line B. Co. v. Padgett, 236 U.
S. 668, 00 L. ed. T7T, 36 Sup. Ct Rap. 481 ;
Baltimore 1 O. R. Co. v. Wlitacre, 242 U.
S. 169, 61 L. ed. 228, 87 Sup. Ct Bep. S3.
D,at,z.d-,.'^-.00'^IC
4Tt
S7 BUPSXta OODBI BBPOETEB.
Ooi. Tbm,
Uhud Statsb Vmurr ft Ocaautr Coh-
FAKT, Appellant, v. TkiTXUia Inousuicii
UAOHun COKFAHT. [No. MS.]
Appeal from the Dittriet Court of tlia
United State* for the Dlitrict of Arisona.
Mr. William Manhall BoUitt for appel-
lant.
Ke»8TB. David R. Caatleman and Wallar
Bennett for appellee.
April 16, 191T. Per Oiuiun: Dlemlsaed
for want of juriodietion upon the authority
Of Bache t. Hunt, 198 U. S. 623, 48 L. ed.
774, 24 Sup. Ct Hep. 647; LouUville Trust
Co. V. Enott, lei U. B. 226, 48 h. ed. 16S,
84 Sup. Ct. liep. 119; Sailroad Commiseion
T. Louiiville & N. R. Co. 226 U. 8. 272, 2TB,
SS L. ed. 1087, 1090, 32 Sup. Ct. Rep. TS«.
A. S. COHiT, Petitioner, t, R. A. UaloiO,
Trustee of A. 8. Cohn, Bankrupt. [No.
es2.]
Mesere. George B. Jones and James E.
Hclntoeli for petitioner.
Messrs. Aloander Akerman, Charlea
Akerman, and John D. Pope for respondeut.
April 10, 1017. Order entered herein on
Uarch 6, 1917, vacated and set aside, and
petition for Writ of Certiorari granted.
Savckl C. Coheh, aa Tmstee in Baakruptey
of Elias W. Samuels, Bankrupt, Peti-
tioner, T. EuAB W. Baicdels. [No. 806.]
Mr. lAwrenee B. Cohen for petitioner.
MesBTS. Irring L. Ernst and Samuel
Sturtz for respondent.
April le, 1S17. Order entered herein on
Hanh t, 1917, vacated and set asld^ and
petition for Writ of Certiorari granted.
SoTiTHEBii PAOtno CoHPAHT, Petitioner, t.
CAi,m>Bi(iA AnrosncBitT Cohpaht. [N».
99S.]
Petition for a Writ of O^iorari to the
United States areuit Court irf Appeals for
the Ninth Circuit.
Messrs. C. W. Dnrbrow and W. F. Eerrlu
for petitioner.
Mr. Leon E. Morris tor respondeaL
April 10, 1917. Granted.
CnABLES D. SuiTH et al., PeUtloners, t.
Copiah Coumtt et al. [No, 098.]
Petition for a Writ of Certiorari t« the
United States Circuit Court of Appeals for
the Fifth Circuit.
Hr. Caruthers Ewing for petitioners.
MeserB. J. S. Sexton and H. J, Wilson for
respondents.
April 10, 1917. DMOad.
Cbamlmm a. Nom, PeUttoosr, r. Sub w
Hhv JawT. [No. lOM.]
Petition for a Writ of Certiorari to the
Court of Erron and Appeals of the Stat*
of New Jersey.
Ueisrs. Barry Mohoa and Henry E. Davb
for petitioner.
Mr. Janua Henry Hjurrison for re^ond-
AprUlClOlT. Denied.
DAvnt W. Snnr, Petitioner, r. Om or
Mabcclho, In the County of Linn, State
of Missouri [No. lOlS.]
Petition for a Writ of Certiorari to the
United SUtes Circuit Court of Appeals for
the Eighth Circuit.
Mr. John T. Wayland for petitioner.
No appearance for respondent.
April IS, 1917. Denied.
Craxleb Hatsawat st al., etc., Petitioners,
T. JoasPH B. MABTiintAU et aL, Reaeir-
ers, etc. [No. 1019.]
Petition for a Writ of Certiorari to the
[Jaited States Cireult Court of Appeals lor
the Second Circuit.
Mr. Alfred B. Cruikshank for petiticmeis.
Mr. Charlee E. Bnahmore '
^ril U, 1917. Dented.
Saai^rbj) PuBLiBHina Cohfakt et aL, Pe-
titioners, T. Q. It 0. **"~^*" COKFAHT.
[No. 1022.]
Petition for a Writ of Certiorari ta the
United State* Cirenit Court d Appeals let
the Sixth Cirenit.
Messrs. Wade H. Ellla aod ChaUan B.
Ellis for petitioners.
Mr. William B. Hale for reipondcnt.
April K, 1*17. Denied.
Ilurois Sunrr CoiiFAitT, Petitioner, t.
SiAiniAXD UnsKaoBomiD Cabix Comvair.
[No. 1026.]
Petition for a Writ of Certiorari to the
United States Circuit Court id Appeals for
the Third Circuit.
Mr. Albert J. Hopldn* for petitioner,
Mr. George B. Gordon for reepondeot.
Afril 10, 1017. Denied.
UinoEt Sahii * Uaixual CoKFAm, Pett'
Uoaer, t. Stati or Auumsas. [K«.
1039.J
Petition for a Writ of Gertlormri to tta
Supreme Court of the State of AricansM.
Hr. Camthers Swing for petitioner.
No appearance for respoodsnt
.^rU IS, 1017. Dnied.
,*^iOO^lC
ICBHORAHDA QABM
<7»
fkAlKn Baaimi at tL, PaUtlcmm, r. I
•mu. Amaam Cohfawi, hU^ at aL [Ho.
10470
Petition for t. Writ of Onttonri t» tha
anltcd SUtaa Qrenit Conrt of AppaaU for
Oiollrat dKuit
Mcaara. Pvry Allm and Elijah N. Zollna
lor paUtionan.
Maacri. Cbulaa HartMOl and Jfalwda
Donald for raapondanta.
^ril le, U17. Denied.
latnusa Co±l & Cokb Comtaht, PaUtlm-
•r, T. B^am Euican, [No. 1049.]
FeUtion for a Writ of Certiorari to the
United Statea Cirouit Coort <a AppeaU for
the Sixth Circuit.
Ur. Wliifa B. Ulllor for petlUonar.
Ho counael q>peared for rwpondent^
^ril le, 1»17. Denied.
OuBLM W. RurnniL, Ja., Petitioner, r.
HoBTH Gmuif lAJont. [No. 1067.]
Petition for a Writ of GerUorari to the
Doited Statea Circnit Conrt of Appeal* for
the Firat Cirouit.
Heun. J. Parker Klrlln, Charlea R.
fficlcos, and Edward B. Blodgett for petl-
Meaara. Joaeph Larocque and Walter C.
Noyea for reepondent.
April le, 1917. Denied.
ILLVBiOt Eaitsbehb, Petitioner, V. HOBIH
Gebuak Lu)Td. [No. loss.]
Petition for a Writ of Certiorari to the
United Statee Circnit Court of Appeala for
the Pirat Circuit.
Ifeaar*. J. Parker Klrlln, Charlea R.
HIdtoz, and Edward E. Blo^ett for petl-
Meaara. Joaeph Larocqne and Walter C.
Hofes for reepondent.
AprU 14, 1917. Denied.
Umitid Btateb, Plaintiff In Brm,
Gkotsb 0. AsURBioir. [No. 293.]
In Error to the Dlatrict Court of the
Untied Statea for the Weatem Diatriet of
Virginia.
The Attomaj General for plalntUt In er-
ror.
Ho appearance for defendant In error.
April IS, 1B17. Dlamiaaed, on motion of
eonnael for the plalnUff Id error.
Waltb Bumrt, Appellant, t. Tboouji W.
MoMAif, Warden, ete. [No. 468.]
Appeal from the District Court of the
United Btatoa for the Diatriot of Kanaas.
Mr. Prana K Lindqolat for a^teliaat.
Ho appeaianoe for appellee.
April IS, 1917. Dlamiaaed with eoat^ m
motion of connad for tlia appellaoL
iHnurA.TiaiiAL Luinaa Cokpaitt, Phiin-
tiff In Error, t. Uinnit States. [No.
S19.]
In Error to the Ihilted Statea arniit
Court of Appeala for the X^bth Circuit.
Mr. Harri* BIchardsMi for plaintiff in er-
The Attorney General for defendant In er-
ror.
April 17, 1917. Diamiaaed, puranant to
the Sixteenth Rule, on motion of counsel
fw the defendant in error.
Adolm Gaboia GuifADA. Plaintiff in Error
and Appellant, t. Joal Bta. Uaua et aL
[No. 188.]
In Error to the Supreme Court of tha
Philippine lalands.
Mr. Clement I* Bourtf for plaintiff in er-
No appearanoe for defendanta In error,
April £0, 1917. Diuniaaed with coata^
puranant to the Tenth Rule.
UoOouaiOK LuMBix Ooutaitt, Appellant
T. Charles J. Kimeca.vaa et al. [Nol
189,]
Appeal from the United Statee Circnit
Court of Appeala for tha Ninth Circuit.
Measrs. John P. Oraj', William E. Culien,
and F. M. Dudley for f^pellant.
Meaera. Junes E. Fomej and Frank L.
Moore for appelleea.
April 23, 1917. Per Curiam; Judgment
■Annad with coat% upon the authority of
John«>n r. Towalej, IS Wail. 72, 20 L. ed.
486; Bbepley t. Cowan, 01 U. S. 3S0, 23 L.
ed. 424; De Cambra t. Rogera, 1B9 U. B. lift,
47 L. ed. 734, 2S Snp. Ct. Bep. S19; Oreena-
meyer t. Coate, 212 U. S. 434, 63 L. ed.
687, 2ft Snp. CL Bep. 34B.
Uximi Statu, Petitioner, v. WnxiAH B.
FouHD et aL [No. 1015.]
Petition for a Writ of Certiorari to tha
United States Circuit Court of Appeala for
the Hlntb Qrcuit.
Hie Attorney General and Mr. Bolldtor
General Davis for petitions.
No eonnael appeared for reapondeaita.
April 23, 1917. Granted.
A^K~>ogle
Thokab Oh-obkui, FeUtioser,
Cm-LooaH et %L [No. lOfiS.]
Petition for « Writ of Cartior&ri to tha
Bupreme Court of the SUite of OkUhoma.
Mr. A. J. Biddiion for petitioner.
UeesrB. Frederick De Courcj Fanst uid
Charles Frederick Wllaon for teapwidmts.
April 23, IQIT. Qrmnted.
S7 SUPHXUB OODBT EBPORTEB.
G. R.UO-
Oct. Toot,
DmoR PAcmo Rahsoab Ccwpant, Fett
Uonsr, V. Mathm H. HE^iinacHf, Admini*-
tratrii, etc [No. 1043.]
Fetltion for ft Writ of Certianri to tht
Supreme Court of the Stat* of Nebraakk.
Meaen. N. H. Loomis and Alfred G. SO-
llek for petitioner.
M«aara. T. J. Mabonej ftnd J. A. & Km-
nedj tor rMpondaut.
i^ril 23, 1017. Denied.
HOBTBEBH PaoDTO RUUTAT COIaAlTT Bt
*!., Petitloueri, v. E. W. UoCoiUB. [No.
1065.]
Petition for a Writ of Certiorari to the
Supreme Court of the Stkte of Or^oo.
M«s«ra. Charles E. Carey, James B. Kerr,
and Charles A. Eart for petltionera.
No counsel appeared for reapondeBt.
April 23, iei7. Granted.
JoBira HKimiJta et al, Petttloners, v.
Uinrm Suna. [No. 1044.]
Petition for a Writ of Certiorari to the
United BUtea Circuit Court of Appeali for
the Second Circuit.
Ur. Walter JeffrsTS Carlin for pBtitio<»
Hie Attorney General for re^ondenL
April 23, 1917. Denied.
tTnoir pACino Bjjlboad Covvivr, Peti-
tioner, v. Eva E. Cook, Admlnlatratrlx,
ato. [No. 1002.]
Petition for a Writ of Certiorari to the
Bupreme Court of the State of Iowa.
Messrs. N. H. Loomia aad Alfred G. El-
lick for petitioner.
Mr. William R. Green for respondent.
AprU 23, 1&17. Denied.
Smmr J. Baoou, Racdnr, lie^ PeUtiooer,
V. EuFiBE TBU8T CoufAifT et aL [No.
lOEO.]
Petition for a Writ of Certiorari to tb*
United States Circuit Court of Appeals tor
the Fifth Circuit.
Maaars. Walter P. Napier, E. C. Brandoi-
burg, Weldon Bailejr, and Cheatar H. T«>
rell, for petitioner.
Messrs. Thomae H. Franklin, Stephen H.
Clin, and Henry C. Coka for respondent!.
April 23, 1917. Denied.
Uinixs States ex bml. Kq. Bak et •!, Pe-
titioners, V. JoBEPH H. Waixib, Assist-
ant Commiasitner of Immigration,
[Na IMl.l
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Fifth Circuit.
Mr. Bobert M. Moore for petitioners.
Mr. Solicitor General Davis for respond.
AprU 2S, 1017. Denied.
Mouirr VntNtnt ft Mabsbau Hau. Sixain
BOAT CoxFAiTT, loD., Petitioner, v. Jomi
L. McEERmcr. [No, 1072.]
Petition for a Writ of Certiorari to the
Court of Appeals for the District of Colum-
bia.
MesflTS. Daniel Thew Wright, Henry V.
Woodard, and T. Morris Wan:q>ler for p«tl-
No appearance for rcapondenL
April 23, 1917. Doiied.
HVOH Chambers, Trustee, ate. Petitioner,
V. CowTntEWTAi. Tkubt Coupavt. [No.
1040.]
Petition for a Writ of Certiorari to the
United Statea Circuit Court of Appeals for
the Fifth Circuit
Mr. Rudolph S. Wlmberly for petitioner.
Messrs. George B. Jones and OrvlllB A.
Park for reapondent.
April 23, 1917. Denied.
Pmbbitbuaw Home Hmfrai. et al., Fetl-
tlonen, v. Habt Dookxbt Goooh, hj Hw
Next Friend, William D. Oooeh. [No.
107S.J
Petition for a Writ tA Certiorari to' tlia
United States Circuit Court of Appeals for
the Sixth Orcnit.
Messrs. John L. Stout and John W. A|v
ley for petitioners.
No appearanoa for respondent.
April 23, 1917. Denied.
v*^iOOgle
uu.
UMOBAinU. OASEa
CznTon Wooi Ooiipaht, VeUthner,
SuequsRijiiiA Boom Odxpaht. [Nol
1074.]
Petitioii for •, Writ of Gertlonul to th*
United State* Circuit Court o( Appeal* for
the Third Circuit.
Hr. Mortimer C. Rhone for petitioner.
Measra. Max L. MltcheU and N. IL Ed-
watda for TMpondeut.
April 23, IBIT. Denied.
nunoiBco Abias and Roiario Arlaa, the
Latter Being Bepreaented bj Her Ouard-
iao ad Litem, Francieoo Arlaa, Appel-
lanta, t. Huiamo Tilobo, Damiana
VeloiD, and Melchor Tela«>. [No. lOSS.]
Appeal from tlie Supreme Court of tlie
PhUipplne Iilanda.
No counsel ^ipeared for appellanta.
Meeara. Alexander Brltton and Sraae
Browne for appelleee.
April 23, 1S17. Docketed and dlamiued
with costs, on motion of counael for the ap-
Fabk SquASK Adtouobilm Btatioit, Plain-
tiff In Error, t. AMKKiaaH LoODKOnn
CoHFAirr. [No. 140.]
In Error to the Dietrlet Court of the
United States for the Northern Diatriet of
Hew York.
Meeara. Fred N. Wler and Edward C.
Btana for plaintiff In error.
HMira. Bobert Q. Dodge^ Uoorfleld
Storey, and B^Inald H. Johnaon for defend-
ant In error.
April 30, I&IT. Per Cariamt Dlemliaed
for want of jurledletion opou the authority
of McLiih T. Roff, 141 U. S. 601, 80 L. ad.
89S, 12 Sup. Ct. Rep. 118; Bolder t. Penn-
■ylTania. Co. 14S U. B. S02, 37 L. ed. 537,
18 8np. Ct Bep. 040; McDonnell t. Jordan,
109 U. S. 734, 48 L. ed. 121G, 18 Sup. Ot.
Bep. V44; Heilce T. United Statea, 217 U.
8. 423, 64 L. ad. 821, 80 Sup. Ct. Bep. 689.
WnuAK W. WrrHMiu, M. Ceolle Wlth-
nell. Ell Wife; Maul B. Ei«er et al.,
PlalntUte In Error, t. Williaic E. BnsB
CoNvnucnoiT Coupaitt. [No. 198.]
In Error ia the St. Lonli Court of Ap-
peals, State of Mlisonri
Meiara Qlfford B. AUen and Edmund T.
Allen for plalntlfTi in error.
Hr. Edward a Eebr for defendant In
April 30, 1017. Per Cnrlami Judgment
reruaed with emrta, upon the anUiOTlty ot
Gaet Realty ft Inreat. Co. t. Sohndder
Onnita Go. 240 U. a S^ 00 L. ad. 623, 86
8Bp. Ct Rep. £64.
87 a a— IL
PxRAHLTAiiiA TotnrB, ft Taxniu. RuL-
KOAD COKFAKT, Plaintiff In Error, «.
CHABLoa B. Hkhduokboii et al, 8t*ta
Board of Aaseseora, and Edward L Ed-
wards, Comptroller. [No. 217.]
In Error to t^ Suprama Conrt of tlia
State of New Jo'aey.
Mr. Albert C. WaU for plaintiff in ernir.
Messrs. Jolm R. Hardin, John W. Weat-
oott, and William D. Bdwarda for defend-
•jita in error.
April 30, 1917. Par Curiam: Judgment
affirmed with eoata iqion the authority of
Florida a ft P. B. Co. T. Rejnoldi, 183 1}.
a. 471, 46 L ed. 288, tt Sup. Ct Rep. 176.
D. U. Hnxn and Max Millar e« al.. Sura-
ties, Plaintiffs In Error, w. TsaiCAa B.
Cbekshaw, Cleric, W. B. Woolen, Rerenua
Agent, and John C. McLemore, Clark.
[No. 040.]
In Error to tlie 8upr«nu Conrt of tha
State of Tenneaaee.
Mr. H. D. Minor for plalnUffi la error.
Mr. R. L. Bartels lor d^endauts In error.
April 80, 1917. Per Curiam: DismlHed
for want of Jurisdiction upon the author!^
of BuBtU T. Bollei, 160 U. S. 301, 37 L. ed.
nil, 14 Sup. Ct Bep. 131; Leatha t. Thom-
aa, 20T U. S. 93, 62 L. ed. 118, 28 Sup. Ct
Rep. 30; MeUon Co. t. HeCafferfy, 230 U. B.
134, flO L. ed. 181, 86 Sup. Ct Rep. 04.
IimusTBiAL AooiDKHT CbiofiaBioii OF Cai»
FORHLA, Petitioner, *. SoDTH^n FAdtwio
CoKFAHT. [Nos. 1000 and 1001.]
Petitions for Write of Certiorari to the
Supreme Court ot the State of Calltomla.
Mr. Christopher M. Bradley for petl-
Meesrs. Hmiey a Booth and W. W. B^
rin for reipondent
AprU SO, IBIT. Danlad.
JoHF B. OixiMON, Petitlonor, t. Mabt O.
Thaw. [No. 1061.]
PeUUon for a Writ ot Certiorari to the
United SUtee Circuit Court of Appeals for
the Sectmd Circuit
Messrs. Jdtn B. Qleason and Olat Blair
for petitioner.
Meeara. Ahram J. Roaa and Alfred CL
Pett4 for reapondent
April 80, 1017. Denial
A^^OOglC
ST Borama ooubt bipobtbr.
Oet "^nt,
Qnr tm Ctarauiu, FaHtfoMr, t. X B.
Tmaw, H BMrinr, aU, tk aL [Ifcb
lOTS.]
PcUttoB for k Writ of Owtlorui to flit
United StetM Ciienit Oonrt at AppMla for
tb« NlnUi dnnlt.
HaMra SuBod H. FOm, Jubm B. Howa,
Diltaa V. HalTwstadt, aad Bkddnm Xa-
ttrliiu far pcrtitloiMS'.
No
^ril to, 1S17. Dnilad.
Kiot A. Matsb, PsUtlonar, t. Vimm BUK-
lOAD QuoufT. [No. lOSfi.)
Petition for » Writ of OarUonul to tbo
8n^«no Omrt ol tba BttM «l PMB^tm-
Hmh. Jflkn IL griwm nd Tnak fl^
HoGlrr for poUtkanr.
Hr. Sunid UoCb? for rwpondML
AprU M^ UlT. Dnlad.
WmUM rnoBT, Pl4liitlff In Srror, t. Etaui
ov Earbu. [No. 80S.]
la Error to tlio Si^rome Oonrt of tba
SUto of Eaiuaa.
Ifetan. Maloolm D. Niehobon, WUlUm J.
Firtle, and Fruu B. Undqiiist for pUuntUt
In (nor.
Hr. J. P. Oolimaa tor dotatdant In arror.
April to. 1817. DismlaMd with oorta, «■
BWtioB af eonnial for tha plaintiff la nrat.
>v Google
isia.
IDA A. VAN DTKE et al., Appta.,
W. PAtJL GEARY et al., Members or tlw
Gorporfttion CommiBslon of thi State <tf
Aricona, et al.
Courts «=339©(1)— FtoEEii. Courts — Jn-
BTBDICTION— BnTIBK CONTROVEBBV.
1. The entire cue tDAy be considered bf
the Fedeial Supreme Court on an dppMl
from a dULrict court to revleir an order
denying an application before three judgea
for 'an Interlocutory injunction to reetraia
the entorcement of an order of a itate pub-
lic MTvice commlasion on the ground oi ita
repugoanc; to the Federal Conatitution.
(Ed, Nole.— For oUur euea, •<• CourU. Cent.
Dig. I 1059.]
COBBTITUTIONAL LAW «=320-'IiCOISI.ATIVX
COKSTBUCTIOIT or STATB COIVBTmlTION—
Powers or Cobpokation Oohvihsion—
MBAniKQ or "Corporations" and
"PoBuc Sebvicb CoRPOKATionB"— Ikdi-
TIDUAL Owner or Pdbuc Utiijit.
2. The legislative construction given by
the Arizona Publio Service Corporation Act
(Ariz. Rer. BUt. 1913, Ut. 9, chap. 11),
enacted at the Qrst eeBBion ot the Arizona
legislature, to the words "corporation ■" and
'public lervice corporation!" in Aric Const,
art 16, creating a Corporation ConuniBiion
with broad powera of regulation, aa embra-
elng a water aystca own»l by an Individual,
will be followed by the Federal Supreme
Court, in the absence of an authoritative
decision ol the Arizona supreme court to
the contran, notwitbatanding the proviaion
ot art. 14 of such Conatitution, defining "eor-
poiation" as ueed in auch article as Includ-
lug all associations and joint stock com-
panies having any powera or privil^ea ol
oorporationa not poasessed by individuals or
oopartnerahipa, — eepeciallj ainca the I^ia-
lature waa empowered by Aric Conat. art.
IS, f IS, to enlarge the powera and extend the
duties ot the Corporation Commiasion.
[Sd. NDt«.— Fpr othar otsaa, t— Coutltutlonal
!.■*, CcdL Dlr II 11, U.
Far other deflnltJDna. aM Word* utd Phruea
Firit and Second 9erl«, Corpormtlen: Second
Berlaa. Public Berrlca Corporation.]
Statcks ^s118(%— EXFRBBSioif or SlTB-
ncT m Title.
3. The incorporation In a statute whoia
■object, aa eapreaaed In the title, ia the
regulation of public service corporationa, of
* proviaion that "public aervica corpora-
tions" shall Inclnds peraona owning a wat«T
■yatem, ii not in violation of the reqaira-
ment of Aria. Const, art. 4, pt. E, | 13, that
iubjeet shall be expresaed In the title.
[Kd. Note.— For other caaaa, bm SUtuta*.
Cent. Dig. I 142.]
Watim and Watbb Courses «=s203(6)—
Public Dthjit— Eau Rkqui^tiopi,
*. A water sjatcm operated for the pur-
poae of Bupplying water to the residents and
Inhabitants of a part of a town site la a
public utility BO as to be subject to rata
regulation by a state public service com*
Kisaion, although the plant ia owned by an
•"'""''•-' -*■- —rape the water on her own
VAN DYKE T. GEARY.
483
fatdividual who p
' land, atores It in tanks on her own land, and
thenca conducts it through pipes, all upon
her own land, and delivers It to consumara
at the boundary line between her and their
properties, they having purdiased their lota
with the oral understanding that wator
oould be secured from such systeia.
[Sd. Note.— For other cana, see Wataii and
Water ConrMa, Ouit DU. | ai.]
Waters and Watkb Coubsbs ^»208(6>—
Wateb Batks— Bcrixw or FiRDinas.
5. The enforcement of an order of a
public service commission fixing water
rates upon the basis of a net return of 10
per cent on the value of the property em-
ployed after deducting an annual deprecia'
tlon charge of 3) per cent should not b«
enjoined by the courts as confiscatory upon
contradictory affidavit! dealing with tlw
items of value which go to make up the
water system, where it cannot be said that
It was impossible for a fair-minded board to
coma to the result which was reached.
[Ed. Nate.— For otkar caHi, bm Waters and
Walsr Couma, Cat. DUt. I Si]
[No. 62.]
Decided May 7,
APPEAL from the Diatrict Court of tlw
United SUtes for the Diatrict of Ari<
zona to review an order which, while tax-
joining the enforcement ot the fines and
penaltiea prescribed by a state statu ta for
failure to obey an order of the Corporatlcm
Commission regulating water rate^ refuaed
to interfere witii the enforcemoit of auofa
order. Affirmed.
See same case below, 218 Fed. 111.
The facts are stated in the opinion.
Messrs. William C. PrentlM and T. 0,
Jacobs for appellant*.
Messrs. Samuel Herrlok, Qewge W.
Harben, E. William Kramer, and Mr. Wiley
S. Jones, Attorney Qeneral of Arizona, for
In 1909 Ida A. Van Dyka and her huaband
organized a corporation under the naina of
the Miami Town-site Company, to acquira a
treat in Gila county, Arizona, and eatablish
a town thereon. A large part of Miami Ia
now located on that land. In order to sup-
ply residents and others thereon with water
for domestic, commercial, and fire purposes,
the Van Dyliea introduced a water system
which dereloped rapidly. In October, 1013,
the Arisona CorjMration Commiaaion, a P>ih.H
lie servic4*commission with the naual powers*
of regulation, tnatituted before itaelf a pro*
feeding to have the rates charged by tka
water system declared excessive, and to
have reasonable rates established. Ths Vaa
Dylces, who were duly served, filed a "^lea
In bar;" alleged that the plant was tlw IsU-
la topic ft KET-NCUBEft In all K*r-Nnmbsred Diitata * ladn
37 SUFREUB COUBT REFORTEB.
Oor. Tom,
ridiisl property of Id* A. Van Dykej tbat
the busineu wki operated bj her with her
husband aa majiager, and not by a eorpo-
ration; and denied not only the validity of
the order, but also the jurisdiction of the
Commission over them. The objection to
the juriediction was overniled; and the Gom-
minBioii proceeded to a heariug on the
merits, at which the Van Dykes ofFered no
evidence. On May 1, 1914, after an elabo-
rate report, an order was entered greatly
reducing the water rates. The Van Djki
promptly filed a motion for a rehearing,
which was denied. Thereupon they applied
to the Commission to stay the operation of
the order pending proceedings for review in
the state court. This application alio was
denied. Then they filed, in the district
court of the United States for the district of
Arizona, this suit against the members of
the Commission, the attorney general of the
state, and the county attorney, to enjoin
the enforcement of the order and the prose-
cution for penalties for failure to observe
the same, and to have the order itself
canceled.
Both plaintilTi and defendants are citizens
and residents of Arfzona. Jurisdiction of
the Federal court was invoked solely on the
ground that the order of the Commission, if
enforced, would deprive plaintifTs of their
property, in violation of the 14th Amend-
ment; and that the penalties prescribed by
the Arizona statute for failure to obey the
order are so severe aa to prevent resort to
the remedies therein provided for testing in
the state courts the validity of the orders.
An interlocutory injunction was applied for;
and the case was heard before three judges,
under S 868 of the Judicial Code [3S Stat, at
L. 1102, chap. 231, Comp. Stat- 1013, |
!{1243J. The jurisdiction of the court was
* suatained under the rule declared *in Ex
parte Young, 209 U. S. 123, G2 L. ed. 714, 13
I>R-A-(N-S,} B32, 28 Sup. Ct. Rep, 441, 14
Ann. Cas. 764; but the court refused relief
against the order reducing water rates, say-
ing:
"The evidence submitted by the com-
plainants does not afford this court a satis-
factory basis on which to adjudicate the
question of the value of the property ueed
as a water plant, and therefore the court
cannot sny that the rates prescribed by tho
Corporation Commission are confiscatory,
and there is no basis on which an order could
be made declaring them illegal. If hereafter
it shall appear that, under actual operation
of the plant under these rates, the return
allowed by inch Corporation Commission
operates as a confiscation of the property of
complainant Ida A. Van Dyke, she may, at
the expiration of one year, again present
lier evidence to the court and obtain ap-
propriate relief on the facts then presented.
'The court will retain jurisdiction of the
case, with permission to complainant Ida A.
Van Dyke, if so advised, after the expira-
tion of one year, to renew her application
for an injunction against the rates estab-
lished by the Corporation Commission aa
confiscatory- In the meantime the rates
established will remain in force."
From an order entered in accordance witli
this opinion the Van Dykes appealed; and
this court has jurisdiction to review the
whole case- Louisville & N. R. Co- t.
Garrett, 231 U- S- 298, 6S L. ed. 22Q, 34 Sup.
Ct. Rep. 48.
The errors alleged are, in substance, aa
First- That the Arizona Constitution and
Public Service Corporation Act were eon-
Btiued and applied to subject property
owned and operated by a natural person to
regulation as a public service corporation.
Second. That a water system established
for the purpose of furnishing water only to
purchasera of lots from the Miami Ton-
site tk>mpany waa treated as a public water
Third. Tbat the rates flxed are eonOsca-
Tbese alleged errors will be considered in
their order. 4
*1. Whether the Arizona Corporation Com-*
mission had jurlsdietlon to regulate a water
syatem owned by an Individual.
Arizona was admitted as a state February
14, 191E; and on that date its Constitution,
which bad been adopted December 0, 1010,
took effect. By article 16 it created (S 1)
a Corporation Commission with full power
to establish reasonable rates in the public
services; and declared (J 2) that corpora-
tions engaged in furnishing water "shall be
deemed public service corporations." Hm
Arizona Public Service Corporation Act
(Ariz. Rev. StaL 1913, title 0, chap.
11) provides tbat tlie term "public serv-
ice corporation" shall include "water cor-
poration," g 2278 (z); that "water corpo-
ition" shall include "every corporation or
ptTion . . , owning, controlling, oper-
.ting, or managing any water system toc
ompensation within the state," J 2278 {x)i
that the term "person" includes an indi-
dual, S 227B (d) ; and that the term "water
system" shall include all property used in
the supply or distribution of water "for
icipal, domestic, or other beueScIal
," S 2278 (w). It is clear that the l^is-
lature intended that the powers of the
Corporation Commission should extend t*
plants owned and operated by Individual^
and that the language used by it was ade-
quate to express that intent. But it is i^
,A_iOOglC
TAN DYEB t. QEART.
4SS
•iated Uwt prOTtsioiu of the AriEona Conati-
tutioQ forbid tlie grant of (uch » power hj
the legislature; and the question resolvei
IteeU into this: Are the term* "corpora-
tion" aod "public service corporation" in
Article 15 of the Constitution, ueed in the
limited sense of incorporated companies, or
do they include all public utilities, both in-
corporated and unincorporated, and whether
thej' be Brms or individuals!
Article 15, entitled, "The Corporation
J Commission," consists of nineteen sections,!
• and confers broad powers of "regulation.
The character of the service, that ia, whether
it ie public or private, and not the character
of the ownership, determines ordinarily the
■cope of the power of regulation. The need
of such regulation and the manner of exer-
daing it are the lame whether a public
utility la incorporated or notj and the pur-
pose of n public service commission eould
•aeily be frustrated If concernB owned by
individuals were excluded from its opera-
$ tion. The district court accordingly declined
* to give a technical* meaning to the terra
"public service corporation," and interpreted
it in the broad popular sense aa embracing
all public utilities. That construction is in
line with numerous decisions holding that
•tatutes imposing certain liabilities on "rail-
road corporations" embrace ail railroads,
whether individually or eorporately owned.*
It ia contended that article 14, entitled,
*^rporationB Other Tli&n Municipal," ren-
ders this liberal construction of article IS
Inadmissible. Section 1, of article 14, de-
Qnea " 'corporation,' as used in this article
, . , to include all aasociationa and joint
stock companiea having any powers or
privileges of corporationa not possessed by
individuals or copartnerahipa;" and § 16 pro-
vides that the records of "all public service
corporations" shall at all times be subject
to the inquiaitorial powers of the stat«. It
is argued that the term "public service
corporation," thus excluding individually-
owned utilities, eould hardly have a differ-
ent meaning in the very next article of the
Constitution. But the answer is that article
14 deals only with the organization, incorpo-
ration, management, and powers of technical
corporations, and the definition therein of
"corporation" is, tor that reason, expressly
limited by tbe phrase "at used in thii arti-
clt." This la significant and is entirely
in harmony with tbe view that the term as
used in some other article, having a wholly
different purpose, should bear a different
and broader construction.
Furthermore, the powers of the Arizona
Corporation Commission are not limited to
those expressly granted by the Constitution.
Section 6 of article 15 authorises the legis-
lature to "enlarge the powers and extend
the duties of the Corporation Commiesion;"*
and the legislature, by* defining "water*
corporation" to include "persons" owning %
water utility, clearly extends the powers of
the Commission to individually- owned con>
corns. So that, even if the Commission waa
not originally vested by the Constitution
with power over utilities owned by indi-
I Included are the following:
"Section 1. A Corporation Commisstou Is
hereby created to be composed of three per-
sons, who shall be elected at the general elec-
tion to be held under the provisions of tbe
anabling act approved June 20, 1910, and
whose term of office shall be coterminous
with that of the governor of tbe state elect-
ed at the same time, and who ahail nuUn-
tain their chief offic«, and reaide, at the
■tate capiUl. . . .
"Sec 2. All corporations other than mu-
Blaipal enip^ed in carrying persona or prop-
M'ty for hire; or in furnishing gas, oil, or
electricity for light, fuel, or power; or in
furnishing water for irrigation, fire pro-
tection, or other public purposes; or In fur-
nishing, for profit, hot or cold air or steam
for heating or cooling purposes; or in trans-
mitting messages or furnishing public tele-
graph or telephone service, and all corpora-
tions other than municipal, operating as
oommou c«rriera ahall be deemed public
service corporations.
"Sec. 8. The Corporation CommlaaioB
■hall have full power to and shall, preaoribe
Just and reasonable classiflcations to be
naed, and just and reasonable rates and
charges to be made and collected, by puli-
Uc service corporations within the state for
auric* rendered thwein, and malce reuon-
able rules, regulatims, and orders, 1^ which
such corporations shall l>e governed in the
tranaaction of business within the state,
and may prescritra tbe forms of contract*
and the systems of iceeping accounts to be
used by such eorporations in transacting
such business, and make and enforce rea-
sonable rules, regulations, and orders for
the convenience, comfort, and safety, and
the preservation of the health, of the em-
ployees and patrons of such corporations:
Provided, That incorporated cities and
towns may be authorized by law to exercise
supervision over public service corporations
doing business therein, including the regu-
lation of rates and charges to be made and
collected by such corporations: Provided
further. That classiflcations, rates, charges,
rules, regulations, orders, and forms or sys-
tems prescribed or made hy said Corpora-
tion CommisBion may from time to time l>«
amended or repealed bv such Commission."
» Union P. R. Co. v. l5e Busk, 12 Colo. iOi,
304, 3 L.B.A. 350, 13 Am. St. Rep. 221, 2D
Pac. 762; Pittsburgh, C. C. & St. L. R. Co.
V. Lightheiser, 168 Ind, 438, T8 N. E. 1033,
1042; Schus T. Powers-Simpson Co. 85 Minn,
447, 460, 461, 60 L.R.A. 887, 89 H. W. <8|
Lewis T. Northern P. B. Co. S6 Mont. SOT,
218, 02 Pu. 460.
A^iOOglC
«se
37 SUPREUB COUBr BEPOBTER.
Ooi. Tecic,
viduals, (t now hai that power directly by
legislative enactment. In other words, the
Constitution prescribed a certain minim
of power with which the CommiBsion v
intrusted; it authorized the legislature
enlarge from time to time the scope of the
Commisaian's dutiee; and the legislature
ta^lended them to water concerns owned by
iodividuala.
This construction of the Arizona Constitu-
tion by the district court is in harmony with
the contemporaneouB construction evidenced
by the Public Service Corporati
(supra) enacted at the first session of its
legislature. In the absence of an authorita-
tive deciaion of the Arizona supreme court
to the contrary, this legislative construe
tion, reasonable In itself and designed to ac
compliah the obvious purpoes of the consti'
tutioDal provision, ought not to he set
ftsidc by this court. Louisville & N. R. Co.
T. Garrett, 231 U. 8. 298, 305, 53 L. ed.
ZZO, 239, 34 Sup. Ct. Sep. 46.
Appellants contend alio that even if the
legislature had power to extend the juria
diction of the Corporation Commission t
water systems owned and operated by indi
viduals, the Public Service Corporation Act
was. In thia respect. Invalid under article 4,
pt. 2, § 13, of tile AriEona Constitution, he-
cause this purpose was not expressed in the
^ title of that act.> Constitutional provisions
" requiring the aubjeot of legislative acts to
btt embraced in the title are not to be given
ft strained and narrow construction for the
purpose of nullifying legialatiou. The
"subject," aa expressed in the title,
Ae regulation of "public aerriee corporv
tlons;" and the prorlalon In the act that
"public aerriee eorporatione" shall include
*^erBona" owning a public utility la a mat-
ter obviously connected therewith.
2. Whether the Van Dyke water aystttn
b a prirate business.
The Van Dyke system appears to be the
only water supply of the Inhabitants of
the original town of Ulami (not including
the "additions"). The number of water tak*
*The Arizona Constitution (art. 4, pt
C, { 13) provides that:
"Every act shall embrace but one sub-
the title; but if any subject shall be
braced in an act which shall not be ex-
pressed in the title, such act slull be void
only as to so much thereof aa shall not be
embraced in the title."
The act Is entitled:
"An Act Relating to Public Service Cor-
porations, Providing for the Regulation of
the Same, Fixing Penalties for the Violation
tniereof, and ReoealinK Certain Acta; with
an Bmergenoy Clause." [Laws 1918, chap.
«.]
ers is not shown. But it appears that the
large consumers who used meters numbered,
at the time of the Commission's investiga-
tion, 675, yielding a revenue of $11,378.1''
and that the number of small takers must
have been much larger, since the revenue de-
rived from the flat rates was $14,617.35.
"Property becomes clothed with a public in-
terest when used in a manner to make it of
public consequence and affect the community
atlarge" (Jlunnv.Iliinois, 94 U. S. 113, IM,
24L. ed. 77, 84). The property here in quel*
tion was devoted by its owners to supplying
a large community with a prime neceasi^
of life. That Mrs. Van Dyke pumps the
water on her own land, stores it in tanks on
her own land, and thence conducts it
through pipes all upon her own land (the
strips reserved in the streets for conduit*
being owned by her), and delivers it to
purchasers at the boundary line between ber
and their properties; and that lot purchaa-
era bought with the understanding that
they might purchase water from Mrs, Van
Dyke's water system at rates fixed by her, $
l^all facta of no significance; for the*
character and extent of the use maice it pub-
lic; and since the service is a public one,
the rates are subject to r^ulatiim.
Counsel contend that the use is not pub*
lie, because water is furnished only to par-
ticular individuals, in fulfilment of private
contracts made with the purchasera of town-
site lots. But there is nothing in the record
to indicate that aueh is the fact. Purchaaeri
seem to have bought merely with the oral
iderstanding that water coulU be secured
from the Van Dyke system. Affidavits filed
by appellants state expreaaly th»t their
water system is operated "for the purpose of
ipplying the residents and inhabitants of
id Miami town site with water, and not
for the purpose of supplying persons out-
side of said town site, or the public general-
ly, with water." The oSer thus is to sup-
ply all the "inhabitants' within tha given
area; and that, of course, includaa sub-
vendees, tenants, and others with whom th*
Van Dykes had no contract relations. Tbe
fact that the service is limited to a pert of
the town of Miami does not prevent tlio
r aystem from being a public utility.
See Del Mar Water, U^t, t P. Co. *. Eahle-
167 Cai. eee, esi, 883. l,r,a. — , ~-,
140 Pac 661, S48.
3, Whether tha rate* fixed are conft»-
The Commission decided that the net ro-
turn to the owner upon the value of tho
property employed should be at the rat« of
at least 10 per cent, after allowing an an-
nual depreciation charge of 3) per oent.
Water rates prescribed on tliia basis obvi*
onsly cannot be held eonflacfttary unloM
A^^OOglC
I91<.
GULF, C. t B. F. R. CO. ». TEXAS PACKING CO.
•Ither tbe TBltuttion pUeed upon tbs prop-
erty DMd WM grossly inadequate or th«
coat of operation greatly undereatimated.
Theae elemeiitB are largaly mattera of fact
and apinioQ, as to which both the Commli-
•iOD and the diatriot court, after eaiefol
euunluation, found agalait the appellant*.
The caae Ib preaeuted to us on contradictory
affidavit* dealing with the itemi of value
which go to make up the water ayetem.
We cannot say "that it was impoaaible for
a fair-minded board to come to the result
which was reached." San Diego Land &
Town Co. V. Jasper, ISB U. B. 43B, 442, 47
L. ed. 8S2, 8S4, 23 Sup. Ct. Rep. 671; Knoi-
villa V. EnoxviUe Water Co. 212 U. S. 1, 18,
BS L ed. 371, 362, es Sup. Ct Bep. 148. And
the provisioD in the order ef the distriot
court by which It retained jurisdiction of
the cose, with permission to Mrs. Van Dyke
to renew her application for an injunction
after one year, if the rates fixed appear to
be conflacatory, afforded hwr appropriate
The decree of the JHatrlct Court ta ftf-
Ur. JuUce UcReTnoIds dlaaenta.
OXTLF, COLORADO, A SANTA FE RAIL-
WAY COMPANY, Plff. in Err.,
ConnTS «=>391(IB) — Fkdeb&l Supbeui
OouBT — Ebbob to Bt^tb Court— Fxd-
XBAL QuxsnoN.
1. A case which iovolvei rights set up
and denied that aroae upon through inter-
state bUls of lading issued under the Car-
mack .Amendment of June 29, IBM (34
Stat, at L. SS3, chap. SB91, Comp. Stat.
1»18, I 8G»2), to the Act of February 4,
1887 {M SUt. at L. 349, chap. 104}, | SO,
U reviewable in the Federal Supremo Court
aa writ of error to a state
LSS™
I lOH.]
Cabkibbb «=3l30 — DxHxozD FuioHT —
VAi.m AT DivEBTiD Dibthtatioit.
2. Hi* dlfferenee between the invoice
price of an interstate ahlpment at the place
of shipment la Texas and the value of the
tame in its damaged condition at the time
of its delivery at Chicago, the new destina-
tion to which it was divo'ted upon the ship-
per** request without issuing new bills of
fading, is the proper measure of damages lor
» loss caused by the carrier's failure to re-
ice, where it I* fairly inferable from the
«ividanee that the original bills of lading,
which provided that the lou should be qpn-
pated "on the basis of the value of the
property (being tha bona fide invoice price.
If any, to the consignee, Including the
freight charge*. If prepaid) at the place and
time of shipment," were continued in foree
Chicago, and remained binding eontraota
when the carriers accepted the diveralon of
the shipment.
[Bd. Nuts.— For othar cuts, ••* Oairlara.
Cent. Dl|. H H7-CU, iM-tCO, «ft-«HH.]
Damages «=>62(8>— Cabukb'b Lubiutt—
Pbkvkntiko AitT UitracuaABT Lobb.
3. The consignee of perishable goods ar*
riving at desttnatiou in bad condition dit-
Eharged ita whole duty to the carrier to save
it from resulting loss where It sold the
damaged goods for the beat price which they
would bring.
tSd. NotSL— for otlter oaaaa, ■•• Damac**.
Cant. DK. H IM-UI.]
[No. 334.]
Argued and auhmltted DecenAer 6, lOlt.
Decided May 7. 1917.
IN BRROR to the Court of Civil Appeali
for the Third Supreme Judicial District,
State of Texas, to review a judgment which
affirmed a judgment of the Diatrict Court
of Bell County, in that state. In favor of
plaintiffs in a auit to recover damages from
a carrier growing out of Ita failure to re-
lee a perishable shipment. Affirmed.
See same case below, — Tax. Civ. App.
— . 172 S. W. 198.
The facta are stated In the opinion.
Ueurs. Alexander Britton, Gardiner
lAtiirop, J. W. Terry, Evens Browne, and
A. H. Culwell for plaintiff in error.
Mesara W. O. Cox and Frederick •.
Tyler for defendant* In error.
s
Hr. Justice Dar delivered the opinion ol*
the court:
Defendant In error, Texas Packing (k)m-
pany, brought it* action in the district
court of Bell county, Texas, tt- inst the
Oulf, Colorado, t Santa Fe Railway Com-
pany, plaintiff In error, to recover damage*
growing out of a *erieB of shipment* of
dressed poultry from Temple, Texaa, to St,
Louis, Missouri, but which were re-routed
over the line of the Wabash Railroad Com-
pany from St. Louis to Chicago. The ship-
ments were on bill* of lading, among tb*
terms of which waa the following: "Iced
to full capacity at Temple with oruihed ice
adding 12 per cent salt. Re-ice at all regu-
lar icing atatlon* with crushed ice using
12 per cent salt." The Packing Company
in It* petition, after averring the necessity
of proper Icing and the contract to that
effect between it and the carrier, allied
negligence on the part of the earriera In
failing to re-ice the poultry properly and
4egic
n sea same topic A KBT-NUHBER la all Kej-Nombered Dlgsat* A tatmm
87 BUPREMB COURT EEPOHTEE.
Oot. Tcuir
regularlj, m t. result of which pinlntiff
claimed danuigea in the Bum ol $12,202.87.
The Sftnta Fe Company answered, deny-
li^ the allegatlona of the petition, aod al-
leging the absence of a contract of carriage
from Temple to Chicago, and averred by
way of crosa petition that, under the ti
of the bills of lading, ita obligation ws
carry the shipments and deliver them t
In a reaionable length of time to its
uwrting line, en route to deGtination, loid
that it did within a reasonable time carry
and safely deliver the shipments in good
and proper condition, or In such conditio)
as they were received by it, to its connect
log line, the Wabash Railroad Company
that under the terms of the bills of lading,
the liability of each carrier was distinctly
limited to all such loss and injury aa oc-
curred while the shipmenta were in its pos-
Masion, and that there waa no loes or
S injury to the shipmenta while the same
• were in Its*poBBesBion; that any loss oi
injury thereto was the result of the negli-
gence of the plaintitr or the Wabash Rail-
road Company, and that it is not respon-
■ible herein for any of the losses or Injuries
complained of in plaintiff's petition; that
the Santa Fe Company, being the iniUal
carrier, was made responsible under the act
of Congress for all loss or injury occurring
en route, but that, under said act, it is en-
titled to vouch in the Wabssh Railroad
Company and recover over and against it tor
any loss or injury occasioned to the ship-
ments in question through its negligence,
and that if there was any negligence of any
carrier which resulted in loss to plaintiffs,
the same was the negligence of the Wabasb
Eailroad Company.
Accordingly, the Wabash Railroad Com-
pany was made a defendant and filed an
answer, asserting that it waa not a proper
party to the suit, and denying that it waa
guilty of the negligence complained of. It
further averred that the shipments were de-
livered at Chicago tn the same condition as
when it (the Wabash Company) had re-
ceived them, and that it received and trans-
ported the shipments by virtue of a con-
tract with the plaintiff to which the Gulf,
Colorado, & Santa Fe Railway Company
waa not a party or in any way interested,
and prayed a dismiasal with its costs.
In appears from the record that the ship-
ments were separately billed from Temple,
Texas, to St. Louis, Missouri, at dates vary-
ing from December 24th to December 3DtIi,
1910; that upon January 4th, 1011, the
■hipper requested the carrier's agent, at
Temple, by telephone, to divert the Qve cars
from St. Louis to Chicago; that the agent
■aid ha would, asked wlier* the bills of
lading were^ and upon bdof told that they
were in St. Louis, said that the carrier's
representative in St. Louis would perhaps
see that the notations of the diversion were
made upon the bills; that no new bills were
issued, and that thereupon the shipment*
were continued to Chicago. J»
* Concerning the stipulation as to icing in*
transit at "all regular icing sfationa," there
is testimony tending to show the cars were
in fact re-iced en route to St. Louis at all
hut one regular station, — Shawnee, Okla-
homa; but the failure to re-ice at this
point resulted in a lapse of from twenty-
eight to fifty-four hours without ice and
salt.
Upon the issues made the jury found for
the Packing Company against the Santa Fe
Railway Company, and upon the issue be-
tween the Santa Fe and Wabash Companies
the verdict' was in favor of the Wabash
Company. The district court rendered judg-
ment accordingly, and the case was taken
to the court of civil appeals, where the judg-
ment of the district court waa affirmed.
172 S. W. 196.
As the case involves rights set up and
denied which arose upon through bills of
lading issued under the Carmaclc Amend-
ment, it is properly reviewable here. St.
Louis, I. M. & S. R. Co. v. SUrbird, de-
cided April 30, lfll7 [243 D. S. 69Z, 61 L.
ed. &17, 87 Sup. Ct. Rep. 462]. Indeed, both
parties admit that the Federal statut* con-
trols, and the case must b« decided under
its provisions.
As required by the Texas statute (Rev.
Stat. [Tex.] 1911, art. 1639), the court of
civil appeals made findings of faet, in which
it said I
"The Terdict of the jury is amply sup-
ported by testimony, and we therefore malce
findings of fact to the effect that appellant
breached its contract of shipment, as alleged
in appellee's petition, and that, as a result
of Uiat breach, the property which waa
shipped was injured and damaged to the
extent found by the jury; and that the
proof failed to show that any of tbe dam-
age referred to was caused by the Wabaah
Railroad Company."
^e plaintiff in error, tn urging certain
grounds for the reversal of the judgment of
the court of civil appeals, contends that the
district court err«i in charging the jury
as to the measure of damages. On that sub-
ject the district court charged the jury as^
follows: 1
* "{*) If you find for the plslnUff you will
assess the damages at the difference between
the invoice price of said poultry, to wit,
the sum of Twenty-Two Thousand Two Hun-
dred Thirty-El^t and SO/lOO («22,238Ji«)
Dollars, and the value of said proper^ at
the time the same was delivered to plala-
A^iOOglC
ISlt.
OUU, 0. * S. 7. B. CO. T. TEXAS PAOEINO 00,
tst
tiff or its agenU, the Western Cold Storage
Company in Chicago, bj the carrier, with
Q per cent interegt per aanuin from Janu-
txj 16th, 1011."
This interstate shipment was governed
by the terms of the Csimack Amendment
[34 Stat, at L. 693, chap. 3691, g 7, Comp.
Stat. 1013, § 8602], requiring the initial
carrier to issue a receipt or bill of lading,
uid as this court frequently has held, with
the efTect of making such contract tha meas-
ure of liability between the parties. It Is
Insisted that, inasmuch as the bill of lading
made St. Loui* the point ol destinntion, it
la immaterial what the value of the prop-
er^ wsa in Chicago, to which point tlie
goods were shipped, having been sold In
transit to a company in that oity. On this
point the record showi that the bills of lad-
ing covered the shipment of five ears of
dressed poultry from Temple, Texas, to St.
Louis, where they were consigned to the
"order of the Teias Packing Company,
notify St. Louie- Refrigerating & Cold Stor-
age Company." Thera Is testimony to show
that the poultry while in transit was sold
In Chicago, and that while the cars were in
St. Louis on the sidetrack of the St. Louis
Refrigerating t Cold Storage Company the
■hipper called upon the agent of the Santa
Vt Company at Temple, to divert the cars
to Chicago. The testimony also shows that
the agent promised to do soi said that ho
would wire a representative of the railway
oompany in St. Louis to divert the cars;
that so new bills of lading were issued;
that the agenfc aeked for the original bills of
lading and was told thst they were in St.
Louis, and said that the representative of
the cftrrier there would perhaps call at the
bitnk and make the proper notaUons there-
% It is. fairly inferable from the evidence
'that. tha bills of*lading originally issued
were continued in force by the action of
the parties, stmply changing tha place of
destinstion, and remained binding contracts
when the Santa Fe Company accepted the
diversion of the shipment from St. Louis
to Chicago.
The bills of lading contained this atipu-
Ution:
"The amount of any loss or damage for
which any carrier is liable shall be com-
puted on the basis of the value of the prop-
erty (being the bona fide invoice price, if
any, to th« consignee, Including the frei<;1it
charges if prepaid) at the place and time
of shipment under this bill of lading, unleiis
ft lower value has been represented in writ-
ing by the shipper, or has besn agreed upon
or is determined by the classification or
tftriffs upon which the rate Is based, in any
«l whidt eventa such lower ralne shall be
the maximum amount to govern such eon-
ptitation, whether or not such loss or dam-
Rge occurs from negligence."
The testimony showed that the invoic*
price of the poultry at Temple to the Pack-
ing Company was $22,238.56, and tbat the
poultry was worth at least that sum at
Temple at the time of shipment. We think
that. In taking this sum as the basis ol
computing dsmsgea, the trial court did but
enforce the stipulation in the bills of hiding.
That sum was the bona fide invoice price to
the consignee, which the billu provided was
to be the basis of recovery in case of loss or
damage. We think the court properly
charged the jury to take the dilTerence be-
tween this invoice price and the value of
the poultry at the time the same was de-
livered in Chicago In arriving at the amount
of damages. No question is- raised in thie
case as to the right of the plaintiff to re-
cover also the freight paid. See Pennsylva*
nia R. Co. v. Olivit Bros, decided April 30,
1917 [243 U. S. 574, 61 I* ed. 908, 87 Sup.
Ct Bep. 468].
The testimony shows that ths poultry
reached St. Louis in poor condition, and
that the cars were there re-iced and for.
warded to Chicago, where the poultry wasn
delivered, still in hsd condition, and really?
unfit for market. It was*nBvertlieless sold .
for the best price which could be obtained.
When the poultry reached Chicago In that
condition, the consignee discharged its duty
to the railway company when it sold the
damaged goods for what eould be obtained
for them.
The testimony shows that the poultry was
taken to a storage company at Chicago,
where it was kept until it could be sold,
and ultimately realized the sum of (10,-
035.80. The jury returned a verdict, under
the instruction of the court to deduct the
value of the property at Chicago from tha
invoice price, in the sum of $0,000 and in-
terest. Evidently, in this state of the reo-
ord, no harm was done to the rights of ths
plaintiff in error in assessing the sum
which the jury awarded against it.
We cannot agree with the contention of
the Jilaintiff in error that the value of the
deteriorated poultry at Temple or St. Louie
should have beeu taken as the sum to be
deducted from the invoice basis of value.
Apart from the stipulation of these billa
of lading, the ordinary measure of damages
in cases of this sort is the difference be-
tween the market value of the property in
the condition in which it should have ar-
rived at the place of destination and ita
market value In the condition in which, by
reason of the fault of the carrier, it did
arrive. New York, L. E. 4 W. R. Co. t.
Estill, 147 V. B. 691, Bit, S7 L. ad. SM,
D,at,z.d>,.'^-.00'^IC
87 SUPEEME COUKT RBFOBIEB.
Oor. Tmc,
804, 13 Sup. a. Sep. 444. The itipuIaUoiu
of these bilU of lading ctiangsd this ruls in
the requirement that the invoice price at
the place of ahipmeot should be the basis
for assessing the damages.
The poultry in fact hod no DMirket price
at Temple or elsewhere. It was badly de-
teriorated, and when the shipper sold it at
the point of destination for the best price
ft would bring he did all that could be
fairly required of him to save the carrier
from resulting loss.
The trial court charged that the Santa
K Fe Company was entitled to » recovety
• sgainst the Wabash Railroad 'Company if
the jury found that the Santa F« Company
and Wabash Railroad Company -were both
guilty of negligence in the handling of the
poultry, in which event the Jury were told
Uiat the Santa Fe Company would be en-
titled to a Terdict against the Wabash Rail-
road Company for that part of the sum to
which the Wabash Company had contributed
by Its negligence to plaintiff's injury. It ia
urged by the plaintiff in error that the
Santa Fe Company, as the initial carrier,
regardless of its own negligence, was en-
titled to recover against the Wabash Com-
pany in proportion as the n^llgence of
that company contributed to the loss; and
it la contended that the testimony tends to
' ahow that the Wabash Railroad Company
did not properly re-ice and otherwioe care
for the poultry in transit. The record
•hows no proper exception reserved upon
which to base tbla critlciem; and the ques-
tion becomes immaterial in Tiew of the
diet of the jury in favor of the Wabash
Railroad Company, and the expresa finding
of the Court of CMl Appeals that the proof
failed to show that any of the damages had
been caused by tlte Wabash Railroad Com-
pany.
We find no error in the judgment of the
wurt below, and it ia affirmed.
an V. a. It]
NORTH GERMAN IXOTD, Claimant of the
Steamship Kronprinzessin Cecil ie, Feti-
GUARANTY TRUST COMPANY of New
York and National City Bank of New
York.
Shifping •^=>11C>— Fatlubk to Dbutu—
Ahtioipatiom of Wak.
The action of tbe roaster of a. Oer-
man steamship in turning back and seek-
ing an American port when distant from
Plymouth, England, but 1,070 miles, did not
create an actionable breach of the steamship
company's obligation to transport shipments
of gold from New York to Plymouth and
to Cherbourg, France, under biUs of lading
vxoeptlng^ in this oonnection, only "arrest
and restraint of princes, rulers, or people,"
where, at the moment of turDlng bad^ the
master knew that war had been declared by
Austria against Servla; that Germany had
declined a proposal for a conteroice of AJm-
baeaadors in London ; that orders had been
issued for the German fleet to concentrate
in home waters; that British battle squad-
rons were ready for service; that Germany
bad sent an ultimatum to Russia; and that
business was practically suspended on the
London Stock Exchange; and he had just
received a wireless message from the di-
rectors of the steamabtp company at her
home port, stating, "War has broken out
with England, France, and Rusua; return
to New York," and he had then proceeded
about as far aa he could with cool mongh
to return if that should prove needful, al-
though war between Germany and the coun-
tries named had not, In fact, been declared,
and if nothing unforeseen had happened,
he might in ^t have delivered the gold
and escaped capture by the margin of a few
[Ed. Note.— For oUiar eiss, SH Bhlppbu,
Cent. Dl|. II SX, m.j
[No.fi
i]
0".
Argued April IS and 17, ISIT. Decided
May 7, 1B17.
N WRIT of Certiorari to the United
SUtes Circuit Court of Appeals for
the First Circuit to review decrees whiek
reversed decrees of the Distriot Court tor
the District of Maasochusetta, diamiasing
libels against a Oermaa steunship. &a-
versed.
See same ease below, 888 Fed. 008.
The facts ore stated In the opinion.
Messrs. Joaepti Iiarocque, Walter G*
Noyee, and Joseph D. Bedla for petftionar.
Messrs. J. Parkev Kirlln and Charles B.
Hickox for the Guaranty Truat Company.
Messrs. James U. Beck, CkrI A. Mead,
and Edward B. Blodgett for tlie National
City Bank. ^
iUr. Justice SolmM delivered the opiuioa*
of tbe court:
This writ was granted to review two d»-
erees that reversed decrees of the district
court, dismissing libels against the steam-
ship Kronprinzessin Cecilie. Z38 Fed. 008)
228 Fed. 940, 9S6. The Ubels aUeged
breaches of contract by the steamship ia
turning back from her voyage from New
York and failing to transport ki^ of gold
to their destinations, Plymouth and Cher-
bourg, on the eve of tbe outbreak of the
present war. Hie question is whether tbs
turning back was justiflcd bj the facts that
we shall state.
The KronpriDECssin Cecilie was a German
Bteamahlp owned by the claimant, a Oerman
corporation. On July 27, 1914, die received
the gold in New York for the above deitl-
sFer other ci
1* topic ft ESY-NUUBBR in all Key-Nnmbared DUeaj
t*«"?5ic
1910.
NORTH GERMAN liOYD t. GUARANTY TRUST CO.
491
ncttoDB, gtiitig billa of l&ding in Americaa
form, referring to the Barter Act, and w»
aatume, governed by our law in reipect of
the justification let np. Earlj on July 29
■ha sailed for BremerhaTen, QermBny, Tia
Stbe tnectianed ports, having on board 1,802
■ pcraone, of wliom*0e7 were Germann, paeten-
gera ajid crew; 406, Anatrians; 151, Rub-
■iana; 8, Bulgara; 7, Serbs; 1, Ronmanian;
14, English; T, French; 304, Americans;
and S or S from Italj, Belgium, Holland,
etc. She continued on htr Tojags untfl
about 11.05 P. ir., Greenwich time, July 31,
when she turned back; being then in 48*
46' N. latitude and 30* 21' W. longttuds
from Greenwich, and distant from Plymouth
about 1.070 nautical miles. At that moment
the master knew that -war had been declared
by Austria against Servia (July 28), that
Germany had declined a proposal by Sir Ed-
ward Qrej for a conference of Ambaseadors
In London; tbat orders had been iiiued for
the German fleet to concentrate in home
waters; that British battle squadrons were
ready for service; that Gtermany had sent
an ultimatum to Russia; and that business
was practically suspended on the London
Stock Exchange, fie had proceeded about as
far as he could with coal enough to return if
that should prove needful, and was of opin-
ion that the proper eourse waa to tarn back.
Ha reached Bar Harbor, Maine, on August
4, avoiding New York on account of sup-
posed danger from British cruisers, and re-
turned the gold to thfl parties entitled to
On July 31 the German Emperor declared
« atate of war, and the directors of ths
company at Bremen, knowing that that had
bean or forthwith would be declared, aent a
wireless to the master: "War baa broken
out with England, France, and Russis,
Return to New York." Thereupon he
turned back. The probability was that the
steamship, if not interfered with or pre-
vented by accident or unfavorable weather,
would have reached Plymouth between 11
p. u. August 2, and 1 a. u. August 3, and
would have delivered the gold destined for
England, to ba forwarded to London by 0
A. M., Auguat 3. On August 1st, at 0:40
p. If., before Uie earliest moment for prob-
j^ ably reaching Plymouth, had the voyage
M kept on, the maater received a wireless mes-
sage from the German Imperial 'Marine
Office: "Threatening danger of war. Touch
at no port [of] England, France, Russia."
On the same day Germany declared war on
Rnssia. On August 2, Germany demanded
•f Belgium passage for German troops, and
seized two English vessels with their car-
goes. Explanations were offered for the
aeisures, but the vessels were detained. The
German Army entered Luxembourg, and
there were skirmishes with French troops.
On August 3, Germany was at war with
^nce, and at 11 P. v., on August 4, with
England. On August 4 some German ves-
sels were detained by England, and early
on the fifth were seized as prize, e. g.. The
Prinr Adalbert, L. R. [1816] P. 81, 85 L. J.
Prob. N, S. 108, 114 L. T. N. 8. 667, S2
Times L. R. 378, flO Sol. Jo. 480. No gen-
eral history of the times Is necGBsary. It
Is enough to add that from the moment
Austria declared war on Servia the great
danger of a general war was known to all.
With regard to the principles upon which
the obligations of the vessel are to be de-
termined It Is plain tbat, although there
was a bill of lading In which the only excep-
tion to the agreement relied upon as rele-
vant waa "arrest and restraint of princes,
rulers, or psople," other exceptions neces-
sarily are to be implied; at least, unless
the phrase "restraint of princes" be
atretched beyond its literal intent. The
seeming absolute confinement to the words
of an express contract indicated by the
older cases like Paradlne v. Jane, Aleyn, 28,
82 Eng. Reprint, 807, has been mitigated so
far as to sxclnde from the risks of con-
tracts for conduct (other than the transfer
of fungibles like money), some, at least,
which, if they had been dealt with, it cannot
be believed that the eontractee would have
demanded or the contractor would have
assumed. Baily v. Ds Cresplgny, L. R. 4
Q. B. 180. 186, 38 lu J. Q. B. N. S. 08, IB
L. T. N. S. 681, 17 Week. Rep. 404, 15 Eng.
Rul. Gas. 700. Familiar examples are con*
tracts for personal service, excused by
death, or contraota depending upon the
existence of a particular thing. Taylor t.
Caldwell, 3 Beat i. S. 826, 830, 122 Eng.
Reprint, 300, SS L. J. Q. B. N. S. 164, S
L. t. N. S. 366, 11 Week. Rep. 726, B Eng.
Rul. Cas. 603. It has been held tbat a la-
borer was excused by tbe prevalence of chol-
era In the place where he bad undertakers
to work. Lakeman v. Pollard, 43 Me.* 463,*
60 Am. Dec. 77. The same principles apply
to contracts of shipment. If it had been
certain that the vessel would have been
seised as priie upon reaching England,'
there can be no doubt that it would have
been warranted In turning back. See Mitsui
ft Co. V. Watts, W. * Co. [1016] 2 K. B.
826, 845, SB L. J. K. B. N. S. 1721, US L.
T. N. S. 248 [1B16] W. N. 271, 32 Times
L. R. 622; The StyrU v. Morgan, 18S U. B.
1, 46 L. ed. 1027, 22 Sup. Ct Rep. 731.
The owner of a cargo upon a foreign ship
cannot expect the foreign master to run
greater risks than he would in respect to
goods of his own nation. The Teutonla,
L. E. 4 P. C. 171, 8 Moors, P. 0. C. N. 8.
411, 17 Eng. Reprint, 366, 41 L. J. Prob.
D,at,z.d-,.'^-.00'^IC
87 SUPHEME COURT REPORTER.
Ocrr. Tnoc,
N. S. 67, 26 L. T. N. 8. 48, 20 Week. Rep.
421 1 The San Romui, Ij. R. S P. C. 301,
307, 42 L. J. Prob. N. S. 46, 21 Week. Rep.
303, 1 Atp. iStT. L. Cu. 603. And wheiT
we add to the seizure of the Teasel the poe-
aible detention of the German and some of
the other passenger e, the propoaitian 1b
doubly clear. Caaea deciding what la and
vhat !• not within the rialc of an inaurance
poHcj' throw little light upon the standard
of eonduct to be applied in a eaae like this.
But we lee no ground to doubt that Chief
Juatice Alarahall and Chief Juatiee Kent
would have concurred in the viewe that we
•zpresa. Oliver t. Maryland Int. Co. T
Cranch, 487, 403, 3 L. ed. 414, 416; Craig
T. United Ina. Co. B Johna. S26, 260, ZS3,
6 Am. Dee. 222. See also British t F. M.
Ins. Co. T. Sanday [1916] A. C. 650, 8S L.
J. K. B. N. S. 660, 21 Com. Ca& 164, 114
L. T. N. 8. 521 [1016] W. N. 44, 32 Times
L. R. 266, 60 Sol. Jo. 263.
What we have said so far we hardly sup-
pose to be denied. But if it be true that tfa*
master was not hound to deliver the gold
in England at the coat ol capture, it must
follow that he was entitled to take reason-
able precautions to avoid that result, and
the question narrows itself to whether tha
Joint judgment ot the master and the own-
ers In favor of return was wrong. It waa
the opinion very generally acted upon by
German shipowners. Hie order from the
Imperial Marine Office, if not a binding
command, at least ahows that if the master
had remained upon bis couree one da?
longer, and had received the message, It
would have been his duty as a prudent man
to turn hack. But if he had waited till
then, there would have been a question
J> wheUier his coal would hold out Moreover,
it^he would have been required to turn back
before delivering, it hardly could change hia
liability that he prophetically and right-
ly had anticipated the absolute requirement
by twenty-tour hours. We are wholly un-
able to accept the argument that although
a ahipowner may give up his voyage to avoid
capture after war is declared, he never is at
liberty to anticipate war. In this case the
anticipation waa correct, and the master is
not to be put in the wrong by nice calcu-
lations that if all went well he might have
delivered the gold and escaped capture by
the marjiiii of a few hours. In our opinion
the event shows that he acted as a prudent
We agree with the counsel for the libel-
lanta that on July 27 neither party to tlie
oontract thought that it would not he per-
formed. It was made in the usual form,
and, as we gather, charged no unusual or
additional sum because of an apprehension
of war. It follows, in our opinion, thst
the document Is to be construed In the
same way that the same regular printed
form would be construed if it had been is-
sued when DO apprehensioos were felt. It
embodied simply an ordinary bailment to a
common carrier, subject to the implied ex-
ceptions which it would be extravagant to
say were excluded because they were not
written in. Business contracts must be con-
strued with buaineas sense, as they natural-
ly would be understood by intelligent men
ot alTairs. Tlie case of Hie Styriu, supra,
although not strictly in point, tends in tha
direction of the principles that we adopt.
Decree reversed.
Mr. Justice Pitney and Mr. Justlca
Clarke dissent, upon grounds expressed in
the opinions delivered by Circuit Judges
Dodge and Bingham In the circuit court
of appeals, 238 Fed. 666.
(Ml U. 8. 151
CnrCAGO LIFE INSURANCE COMPANY
and the Federal Life Insurancs Can-
pany, PlBs. in Err.,
BERTHA R. CHERBT.
Otbeb Statb.
1. The rendition ot a judgment In tsTor
ot plaintiff in an action upon a judgment of
a court of another state, over defendants'
objection that the judgment sued upon was
void for lack of valid service of process,
doea not take the properly of defendants
without due process of law, where the sec-
ond judgment rests upon the view — right
or wrong — that, aa the issue of jurisdio-
tion over the parties was raised ana adjudi-
cated after full hearing in the former c
r HxviBw— Local Pao-
document sued upon should have been filed
with the declaration in a ault in a stato
court is a matter of state procedure not
open to review in the Federal Supreme Court
IN ERROR to the Appellate Court for th«
First District of the Stato at Illinois to
review a judgment which affirmed a jud^
ment of the Superior Court ot Cook Connty,
in that state, in favor of plaintiff in sia
le topic ft KSX-NUUBSR In alt Ka7-Numb«re4 Dlf Mts * lodeue
Mlt.
CHICAGO L. ISS. 00. t. CHERRY.
4n
action upon > judgment of a. court of ui-
•tber state. Affirmed.
Bee same use below, l&O III. ^p. 70.
The fftcta Jire stated in the opinion.
Me«BTi. OluiFlea A. Atkinson, Chilton
P. Wilson, and Charlea J. O'Connor for
plaintiffs in error,
MesBra. Teruon R. Loncka, Charlea O.
Loucks, ftnd Fred E. Atwood for defendant
* Mr. Justice Holmes dellTered the opin-
ion of tiie oourti
This is a snit in Illinois upon a judg-
ment reeorered in Tennesaee against the In-
surance Companies, plaintUts in error.
Tbej pleaded and aet up at the trial that
* there never wu a valid serTiee apou them In
' TennesKC and* that the judgment waa void.
The defendant in error (tiie plaintiff)
■howed in reply, without dispute, that the
defenee was nrged in Tennessee bj pleas in
abatement; that, upon demurrer to one plea
and upon issue joined on the other, the de-
cision was for the plaintiff; and that the
judgment was affirmed by the higher courts.
The plaintiff had judgment at the trial in
Illinois, the judgment waa affirmed bj the
appellate court, and a writ of oertlarari
was denied by the supreme court of that
state. The Insurance Companies say that
the present judgment deprives them of their
property without due process of law. Other
aeetions of the Constitution are referred
to in the assignments of error, but they
have no bearing upon the case.
The ground upon which the present judg-
ment was sustained by the appellate court
waa tbat, as the issue of jurisdiction over
ths parties waa raised and adjudicated
after full hearing in the former case, it
could not b« reopened In this suit. The
matter was thought to stand differently
frwn a tacit assumption or mere declara-
tion in the record that the court had juris-
diction,
A court tbat renders judgment against a
defendsnt thereby tacitly asserts, if it does
not do to expressly, tbat it has jurisdiction
over that defendant. But It must be taken
to be establifihed that a court cannot con-
clude all persons interested by its mere
aseertian of its own power (Thompson v.
Whitman, 18 Wall, 457, 21 L. ed. 897),
even where its power depends upon a fact
and it finds the fact (Tilt t. Keleey, 207
U. 8. 43, 51, S2 L. ed. SS, 09, 28 Sup.
Ct. Hep, 1). A divorce might be held void
for want ol jurisdiction although the libel-
lee had appeared in the cause, Andrews v.
Andrews, 188 U. 8. 14, IS, 17, 38, 47 L.
ed, 300, 307, 372, 23 Sup. Ct. Rep. 237.
There Is no doubt of the general proposi*
tloB that, in a ault upon a judgment the
jurisdiction of the oonrt rendering; ft over
the person of ths defendant may be in-
quired into. National Eieh. Bank v, Wiley,
195 U. a. 2S7, 40 U ad. 184, 2G Sup. Ct
Rep. 70; Haddock r. Haddock, 201 U. 8.
662, 673, 60 L. ed. 807, S7I, 20 Sup. Ct
Rep, 026, 6 Ann. Caa. 1. But when the
power of the court in all other respects lag
established, what acta o( the 'defendant*
shall be deemed a lubmission to its power
is a matter upon which statea may differ.
If a statute should provide that filing a
plea in abatement or taking the question
to a higher court should have that effect
it could not be said to deny due process of
law. The defendant would be free to rely
upon his defense by letting judgment go by
default. York v. Texas, 137 U. 8. IS, 34
L. ed. 604, 11 Sup. Ct. Rep. 9; Western
Life Indemnity Co. v. Rupp, 235 U. 8. 261,
272, 273, 69 L. ed. 220, 224, 225, 35 Sup.
Ct. Bep. 37. If, without a statute, a court
should decide as we have supposed the stat-
ute to enact, it would infringe no right*
under the Constitution of the United States.
That a par^ that hae takes the question
of jurisdiction to a higher court is bound
by its decision was held in Forsyth v. Ham*
mond, ]0e U. S. 606, SI7, 41 L. ed. 1006,
1099, 17 Sup. Ct. Rep. 066. It can be no
otherwise when a court ao decides as to
proceedings in another state. It may be
mistaken upon what to It is matter of fact,
the law of the other state. But a mere mis-
take of that kind is not a denial of due
proeeu of law. Pennsylvania F. Ina Co.
V. Gold Issue Min. t Mill. Co. 243 U.
8. 93, 06, 61 U ed. 610, 87 Sap. Ob Rep.
344. Whenever a wrong judgment is
entered against a defendant, his pTVp-
ertj is taken when it should not have
been; but whatever the ground may be,
if the mistake is not so gross as to be
impossible in a rational administratloQ of
justice, it is no more than the imperfeo-
tion of man, not a denial of constitutional
rights. The decision of the Illinois courts,
right or wrong, was not such a denial. If
the Tennessee judgment had been declared
void In Illinois, this court might have tieen
called upon to decide whether it had been
given due faith and credit National
£xch. Bank v. Wiley, 105 U. 8. 267, 48 II
ed. 184, 26 Sup, Ct. Rep. 70. But a de-
cision upholding it upon the ground taken
the present case does not require us to
iew the Tennessee decision or to go
further than we have gone. An objection
that a copy of the doctunent sued upon
should have been filed with the declaration
matter of state procedure and not ojpea
^ndgmokt afflntied*
L,oiiz,ab,Google
(*Hir. f.0
THOUAS BWING, OommiHioner of P*t-
enU, Petitioner,
Patents ^=106(1) — Intertkbencb— Dutti
TO Dbci^be — DieosBTiON or Couiia-
BioNEB or Patkktb.
The refusal of the Commiasioner of
Patent! to declare an interference, where
the Patent Office ii Informed, through the
admiislon of an applicant, that the inven-
tion shown in hie application wai conceived
on a date eubsequent to the filing date upon
ML application of another person tor the
■ame invention, is juetiSed bj the provisiona
ol U. 8. Bev. SUt. g 4904, Comp. SUt. 1U13,
I 9449, that whenever an application ii
any pending application," he shall give no-
tiee thereof and shall direct the primary
eiaminer to determine the question of prior-
ity of invention, since the duty to declare
an interfercaiee imposed by this statute and
by the rules of the Patent Office, adopted
in the exercise of the authority under % 483
(Ckimp. Stat. 1013, g 746), to establish
regulations not inconsistent with law, can-
not be deemed imperatively to arise merely
because of an asserted antagonism between
tlie applications, but there must be the pre-
cedent and supervising judgment of the
Commissi oner.
ST SUPRBIO; COUBT BSPORTEB.
Oat. Tcui,
0".
"VN" WRIT of Certiorari to the Court of
. ' Appeals of the Dletrlct of Columbia to
review a Judgment which affirmed a jndg-
■leut of the Guprone Court of the District,
awarding mandamus to compel the Commie-
■loner of Patents to declare an interference
between two applicationt for a wmilar in-
TenlJon. Reversed and remanded for the
discharge of the rule and diamiasal ol the
petition.
Bee same case below, 4S App. D. G. 180.
I Statement by Mr. Justice HcKeniu:
His writ is directed to a judgment of the
court of appeals of the IMstrict of Colnm-
bia, which afSrroed a judgment of the su-
preme court of the District of Columbia
In mandamus commanding the Commis-
sioner of Patents "to declare or direct to
be declared an interference between the ap-
plication of William E. Fowler, filed May
22, 1916, for improvements in ear floor
construction, and the application for a
timilar invention" of an unnamed appli-
cant, "pursuant to the statute and rules in
■noh cases made and provided."
The Judgment was rendered upon mo-
tion of petitioner's attorney upon the peti-
tion, rule to show cauae, and answer. It
was affirmed by the eourt of appeals.
As the Fowler Car Company and Ewing,
Commissioner of Patents, were petitioner
and respondent, reapectively, in the court
below, we shall so designate them here.
The facta as stated by the petition are aa
follows:
William E. Fowler, 8r., was the first and
original inventor of oertain new and useful
improvements in car floor construction.
On May 22, l&lfi, he applied for a patent
in the usual form and manner and his ap-
plication was accepted and became known
and designated aa application serial No.
2e,7D4.
On May 19, 1916, b« duly assigned his
right, title, and interest in the invention
to the Fowler Car Company, which com-
pany appointed Charles 0. linthicum its
attorney.
On November 18, IQIS, the Commissioner
of Patents wrote to Linthicum stating that
"there is another application pending,
claiming substantially the same inventiom
as that defined" in certain of the claims
which were set out. He further stated ; "la
order to determine whether it Is necessai;
to declare an interference yon are request-
ed to obtain a statement from Fowler set-
ting fortb when he eonceived the invention
defined in Uie above quoted claims, when^
he disclosed it to others, and when he're-*
duced tt to practice. This statement will
not be made a part of the reoord and will
be returned to you."
Fowler replied that he had eonceived
the subject-matter of the claim quoted is
the Commissioner's letter on or about April
IS, 1915, disclosed the same to others and
made drawings on or about the same date,
but had not reduced the some to practioe
by Gonstruettng any full-sized devices.
On November 26, IQIG, Linthicum filed
an amendment to Fowler's application in
which all of the claims suggested by the
Commissioner were inserted. Of these
claims Linthicum said: "It is thought that
these claims appear in a co-pending applica-
tion, and they are inserted at this time
with the request that, it such claims do
appear In a co-pending application, on in-
terference be declared."
To this communication the Commissioner
replied as follows:
"Sir: — Enclosed please find the state-
ment of Wittiam Fowler, Sr., made in r»>
sponse to the request in my letter of N^
vember 18, 1916,
"The dates of Invention claimed by Fow-
ler are subsequent by several months to the
filing date of the application of the other
>r otlwr cssM see si
)• topic A KB7-
In all Ker-Nombered Dlgasta A Indexes
,A_.OOglC
1918.
EWINO r. UNITED STATES EX SEL. THE PDWLER C. CO.
partj. The other puxtj'B ease will b« paiaed
to ianie >s soon m» pooubl* tud when pftt-
euted will be cited aa a referenoe against
■uoh claima in Fowler'i applica.tion as it
may b« found to anticipate. An interler-
•nce will not be declared."
Section 483, Rev. Stat. Comp. SUt. 1613,
f 746, provides: "The CommiHaianer of Fat-
•nta, aubject to the approval of the Secre-
tary of the Interior, may, from time to
time, establiah ri^ulatioas, not inconaiat-
ent with law, for the conduct of proceed-
iiigs in the Patent Office."
Purauant to this authoritf regulationi
known aa "Rulea of Practice in the United
Statea Patent Office" have been eaUbHahad
iy the CoDunieaioner, by and with the ap-
^proval of the Secratarj of the Interior,
* and now govern 'the declaration of inter-
fereneea between pending conflicting appli-
cations, and bave the force and effect of
law, binding aa well upon the Conuuia-
aioner aa upon the applicant for patenta.
It is further alleged that it clearljr ap-
pears from tha correapondence recited and
nnder tha statute and rules that an inter-
ference exists between the Fowler applica-
tion and that of the applicant, unknown te
petitioner, which applications disclose and
eialm the same patentable invention, and
it is tlie dot; of the Conmiaaioner to de-
clare an interference and t« call upon each
applicant for the sworn preliminary state-
nunt required by rule 110.
That if the onlmown applicant reeeive a
patent and thereafter petititmer's (Fow<
tor's) application is put in interference
with it, and petitioner afterwarda be
kwaided prioritj over the unknown ap-
plicant and receive a patent, in order to
get rid of the menace of the outstanding
patent to such unknown applicant peti*
tlonar will have to file a bill in equitf nn-
der the provisions of | 4B18, Rev. Stat.
Camp. Stat. 1913, | S4B3, for the cancelation
of such patent, or tha owner of the out-
atanding patent ma; file such bill against
petitioner, all of which poseibility of liti-
gation may be prevented If ths Commis-
alouer be required to discharge hie plain
duty under the statute and rules and de-
elare en interference when the rights of
both parties are in the application stage,
and before either party receives a patoit.
That conduct of the Commissioner is a
matter of public concern, and for over a
quarter of a century his predecessors have,
without exception, r^arded the interfer-
ence rules as imposing upon them the legal
duty of declaring an interference under the
eireumstancee detailed. And petitioner is
advised and believes that unless the Com-
missioner be restrained, a patent In due
conrae will be leaned to the unknown ap>
pllcan^ and petitlonsr ia without remedy
unless the court, by writ of mandamus,
shall interpose in ita behsJf, u
* Mandamus was prayed. *
A rule to show cause was issued and the
Commissioner's action stayed until the de-
termination of the cause.
Ths Commissioner in his answer admitted
the filing of the applicationa as alleged
and the correspondence with Linthicvm, but
denied the legal conclusion drawn by peti-
tioner therefrom. He alleged thai an in-
terference, as defined by the rules of the
Patent Office, is a proceeding for the pur-
pose of determining the question of priority
of invention, and that when an applicank
informs the office that the invention shown
In hia application was made at a date whioh
was subsequent to the date upon which an-
other application for the same invention
was filed, the statute does not require that
an interference be establiahed between Us
application and the prior ajqilication. That
in aaking the later applicant to inform the
office of the date of its invention, the Com-
missioner was only asking for information
upon which he might form, aa required
by g 4B04, Rev. Stat. Comp. BUL 191S,
S M4a, an opinion whether a situation
exiated where the statute required that the
later application should be put into inter-
ference with the earlier application, and
that the rulea do not require or contemplate
a declaration of interferenoe where it la
known that the later appUeant made hie
invention subsequently to the filing of tha
earlier application; in other wordS) they
do not eontemplate tha declaration of aa
interference except where there la a possi-
ble conflict in the dates of invention.
Hie answer further denied that peti-
tioner had shown injury or threatened la-
jury, and allied that the only injury
averred in tiie petition was that if the ap-
plication of petitioner be put in Interfer-
ence with ths patent granted upon the
other application, and it priority should be
awarded to petitioner and a patent granted
to it, a bill in equity under S 4918, Rev.
Stat. Comp. Stat. 1913, § 9463, would b«
necessary to get rid of the menace of the
outstanding patent. That the date of
Fowler's invention being subsequent to the*
fiiing'date of the other party, tbvn would
be no ground of awarding priority to Fow-
ler. That even if interference should be
declared, "a litigation to be conducted be-
tween the application owned by the peti-
tioner and the patent issued to the other
psrty would be no longer or more expensive
than a litigation to be conducted between
the two applications. No suit conld be
brought under S 4918 of the Revised Stat-
utes {Comp. Stat. 1913, | 9403), either by
A^^OOglC
8T 9UPBBME COURT RETOETER.
Oct. Tbm;
or kgainst tliU petitioner, tialeas it ware
proved th&t Fonler w»s tiie first Inventor
and B patent iuued to him; but, h above
■tated, the date upon nhich Fowler states
ha ooQCeived the invention is subsequent
to the date upon which the other applica-
tion WBB filed."
Here was detail of the bnsiiieflB of the
^tent Office and at the iDConvenienea to
Ita administrfttioD if the ri^t insisted upon
b]r petitioner were allowed.
A discharge of the rule was prayed.
Solicitor General Davta, Assistant At-
torn^ Qeneral Warrm, and Mr. B. F.
Whitehead for petitioner.
Messrs. GeorEe L. WllklnBon and Hel-
Tllle Church tor respondent.
Mr. Justice McKenna, after stating t&e
ease as above, delivered the opinion of the
The case It not in broad compsaa. It
depends upon a few simple elemente. Seo>
tlon 4904, Rev. BUt. Comp. Btat. 1013,
I 9449, provides: "Whenever an application
Is made for a patent which, in the opinion
of the CoDjmiisioner, would Interfere with
any pending application, or with an
expired patent, he shall give notice thereof
to the applicants, or applicant and patentee,
as the case may be, and shall direct the
. primary examiner to proceed to determine
* the question'of priority of invention. And
the Commissioner may issue a patent to the
party who is adjudged the prior inventor,
nnleas the adverse party appeals from the
decision of the primary examiner, or of the
board of examiner a- in-chief, as the ease
may be, within such time, not less than
twenty days, sa the Commistioner shall pre-
The duty prescribed by this section and
the other duties of the Commisaioner, it
was provided {Rev. SUt. S 4B3, Comp.
etat. 1913, S 745), might be regulated hy
rules established by the Commissioner, sub-
ject to the approval of the Secretary of the
Interior. And rules were established. Hey
define an interference to be a proceeding
instituted for the purpose of determining
the question of priority of Invention be-
tween two or more parties claiming the
same patentable iuventlon {rule 93], and
provide that an interference shall be de-
clared between two or more original appli-
cations containing conflicting claims (rule
S4). Before the declaration of an inter-
fwenee all preliminary questions must be
settled by the primary examiner, the iasue
clearly defined, and the cisims put in such
condition that they will not require altera-
tion (rule OS), Whenever the claims of
the co-pending applications differ In phraae-
>logy they must b« brought to expression
substantially in the same language, and
claims may be suggested to the applicants,
and, if not followed, the invention covered
by them shall be considered aa disclaimed.
The declaration of an interference will not
be delayed by the failure of a party to put
bis claim in condition for allowance (rule
SB). Each party to the tnterfereuce will
be required to file a concise statement,
under oath, showing (1) the data of origin-
al conception of his invention, (2) the date
upon which a drawing of it was made, (3)
the date of Its disclosure to others, (4) the
date of Its reduction to practice, (S) the
extent of its use, and (6) the date and
number of any foreign application. If a
drawing has not been made or the invention^
has not been reduced to practice or*di»*
closed to others or used to any extent, the
statement must specifically disclose UieM
facts (rule 110).
Priority of invention is necessarily the
essential thing, and to determine it, inter-
ference proceedings are provided. But are
they considered as a matter of course on
the mere assertion or appearance of a con-
flict T Upon the answer to the question
the controversy here turns. The Commis-
sioner contends for a negative answer and
supports the contention by the language
of S 4904 (Comp. Btat. 1913, % 0449), rein-
forced by the assertion that there is no
necesBlty for proceedings to determine what
is already apparent, as in the pending case,
hy the admission of respondent. The mere
fact of asserted antagonism does not put
the proceedings In motion, la the conten-
tion. There must he the precedent and
superintending judgment of the Commis-
sioner. The law requires, it ia said, his
opinion to be erercised upon the effect of
a conflict in applications, and such, indeed,
is the language of % 4904 (Comp. Stat.
1913, % 9449). It provides that "whenever
an application Is made for a patent which,
in lh« opinion of the Commissioner, would
interfere with any pending applioation
, . . he shall give notice thereof ■ . ■
and shall direct the primary examiner to
proceed to determine the question of prior-
ity of Invention."
In opposition to this view petitioner re-
plies that the only fact upon which the
Commissioner is to exercise an opinion is
the fact of the conflict in the applicatioDSi
and, that fact ascertained, the duty is im-
perative upon the Commissioner to declare
an interference. "Interference, it is said,
is a question of fact; it exists or it does
not exist. If it exists, then priority must
be determined in the way pointed out hy
the statute and rules." Other conditions
Uian priority In time determine priority of
,A_iOOglC
1916. EWINO T. UMITED STATES EX REL. THE POWLEE C. CO.
4BT
inTeDtfon, It ia inaiBted; tluit the nilra of
thtt pAtent OfDce uid the motioiu tor which
they provide contemplate mch conditional
and that in twenty-fire yeare of practice
fonder them "the queation*of Interference,
in fact, the qneetion of aenlorlty of the par-
tlea, the patentability of the claim to one
or the other, and a number of other ques-
tions became inter partes, and It often hap-
pens that the Interference ia diseolved he-
eause of miatake in declafiog It, or the
burden of proof ahllted on the ground that
the senior party is not entitled to his
original filing date as his effective date for
tlte reason that he did not diacloae the in-
ventloQ In his caaa as originally filed, or
tliat his application diecloses an inopera-
tive embodiment of the Invention, or that
he was not entitled to maice the claims, or
that the junior party had an earlier filed
case diecloaing the invention, or that the
Isaues as formed did not apply to the atruc-
turea of the two parties."
The result of the practice Is declared to
be that It "provides a judgment of record
baaed solely upon an ex parte consideration
by the Commissioner, and affords each of
the parties an opportunity to contest the
right of the other party to a judgment.''
If there are such possibilities in some in-
terferences, they are precluded in petition-
er's ease. Seven claims of a prior applica-
tion were adduced by the Commissioner aa
making a conflict with the invention
claimed by petitioner. The latter, through
its attorney, adopted six of the claims and
directed that they be Inserted In its eppU-
eaUon. It did not intimate the eiistenca
of any circumstances which would over-
come the priority of invention aa deter-
mined by the difference in times of the con-
ceptions of the contending applicants.
The eonceptions were thus established to
be identical and that that of Fowler did not
come to him until some months after the
filing of the other application. And it is
to he observed that the priority was com-
plete. There waa not only the precedent
ooDception, hut there was its ezpreasion in
claims; and that it was practical, a. uae-
fnl gift to the world, petitioner concedea
^by adopting the claims. There were, there-
•fore, all of the elemenfa of a completed'in-
vention, — one perfected before the filing of
petitioner's application, — all that the pre-
liminary atatement required by rule 110
could disclose.
This, then, waa the situation presented
to the CommlBaioner. There was nothing
shows to change it, there is nothing
allc^d in tbe petition for mandamus to
ehangs it, and there is ooXj urged that an
experience of twenty-five years has demon-
strated that, in tnterferenee proceedinga,
37 S. C— B2.
clrcnmstances may be shown that deter-
mine against the date of filing or the claim
of invention.
If it could be conceded that there is an-
tagonism between § 4S04 ( Comp. Stat.
1013, S 6440) and the rules, the former
must prevail. United States ei ret. Stein-
met£ v. Allen, 102 U- S. 643, 665, 48 L. a^
065, 663, 24 Sup. Ct Rep. 416. But thera
is no antagonism. The former provides
that "whenever an application ia made for
a patent which, m the optn*on of the Com-
misstoner, would interfere with any pending
application ... he ... shall di-
rect the primary examiner to proceed t«
determine the question of priority of In-
vention." The section, therefore, commits
to the opinion (judgment) of the Commis-
sioner the effect of an application upon a
pending one, — whether it will intertera
with a pending one; something more, thero'
fore^ than the fact of two applications, —
something more than the mere assertion ot
a claim. The aaaertlon must be, in the
opinion of the Commiesioner, an interfer-
ence with another. And It ia this other
that is first in regard, not to be questioned
except at the instance of the Commie-
slouer by an exercise of judgment upon the
circumatances. And there is no defeat of
ultimate rights; there may be postpone-
ment of their assertion remitted to a suit
m equity under g 4S18 (Comp. Stat. IQ13,
i &163).
But, anterior to such relief, petitioner
contends that "there Is a fundamental and
basic right of opposition on the part of any
applicant, whether junior or senior, to pre-
vent the wrongful grant of a patent to bis
opponent." It ia further contended that
the declaration of an Interference and the
motions which are permitted to be madeH
'under the rulea "provide a judgment of*
record based solely upon an ex parte aon>
slderation by the Commissioner, and affords
each of the parties an opportunity to con-
teat the right of the other party to a jndg-
ment." There Indeed seems to he a less
personal right claimed, — the right of op-
position in the Interest of the public, dis-
placing the super in tendency of the Commis-
sioner constituted by the law. It ia to be
remembered that the taw gives the Com<
miasioner both initial and final power.
It is he who ia to cause the examination
of an asserted Invention or discovery and
to judge of Its utility and importance; i
it Is he who is to judge (be of opinion)
whether an application will interfere with
a pending onej > and It is he who, after
I Rev. SUt. 9 4893, Comp. Stat. 1013. |
S43T; Butterworth t. United States, llfi
U. & SO, j!8 I,, ed. 666, 6 Sup. Ct. Rm. 25.
> j 4004 (Comp. Stat 1013, S 0440).
,A.^OOglC
4B8
ST SUPREUE COUBT BEPOKTES.
Oct. Tesm,
Ml interference ii declared Mid proccodtngi
bad, IB the final arbiter of ite onlf ODB-
trovergy, prioritj of inveatlon.*
The conteutioiu of petitioaer put these
poweri out of view, — put out of view the
fact that the Bo-called "judgment of record"
la, as the action of the ConuniBBioner maj
be said to be, but a matter of adminietra-
tioB. A suit in equity may follow and be
instituted bj either party, and even in It
nothing can be determined but priority of
invention. "There ia but one issue of fact
in an interference suit. That issue relates
to the datee vliercin the interfering matter
wai respectively invented by the interfer-
ing inventor*. If the oompluDant'i invan-
• I 4910 (Comp. Stet. 1913, | »4tU).
tion fa the older, the defaidant's interfer
ing claim is void for vant of novelty
And the complainant's interfering claim ia
void for want of novelty if the defendant's
invention is found to antedate the other.''
Walker, PEitents, 3d ed. g SIT.
Buch suit, therefore, is the judicial rem
edy the law provides. Section 4B04 [Comp.
SUt. 1BI3, g 9440} concerns and regulates
the admin istration of the Patent Office,!*
and the utility of the* discretion conferred*
upon the Commissioner is demonstrated by
his answer in this case.
Judgment reversed and case remanded
with instructions to reverse the judgment
of the Supreme Court of t^e District of
Columbia, and direct it to discharga the
rule and difnilM th* peUtioo.
>v Google
NOETOLK SOUTHEHN R. CO. t, CHATMAK.
I91B.
(U4 U. 8. nn
NOEFOLK SOtrrHERN RAILROAD COM-
PANY, Plff. in Err.,
W. C. CHATUAN.
OuxiKxs «9242-CtuKrAKKB tx "Pabseh<
VE» roB BiBB''-^Uiam» Lubujtt fob
1. A peiEan In eh&rge of an tntantet*
dilpment of live itock, traTellng
fre^fht train npon a pasi iaaued ptimuuit
to tht termi of th« otHitrmct of Hhlpmcat^ m
parmitted by the Act of June 29, 1906 (34
Stat, at L. EB4, chap>. 3691, Comp. SUt.
tion against the iBauance of anjr "Intentat*
free pass," must be regarded as a pasaenger
(or lur^ to whom the carrier mmt reap end
in damages in caaa of hla injury through
the carrier'! negligence, notwithatandlng a
■tipulatlon in tiis contract purporUng to
relBau the carrier from all liability for any
personal Injury which he may auatain.
TBd. Not*.— For otliar oaavL ■•• Carrlan, Cent.
DIs. i MD.
Tor Dtber dcDnltloiu. ■•• Words and Phrases,
Eotopm. ^=?6&(4)— Uboino Imconbibtent
2. A connecting carrier defending a par-
•onal-injury action under a releaas from
liability contained in a contract of carriage
lasaed as required by tha Act of June 29,
IBOS (34 Stat at L. 596, chap. 3591), | T,
pursuant to the published tariSs of the
Initial (Krrier, will not be beard in the
courts to urge the inconsistent defense that
ita own tariff made unlawful this contract
on which it relies.
[Bd. Kota.— ror other nans, sas Bitoppel.
CuL DlK- I in.]
Oabxiebs ^3253^— Fkei Tkahsfobtation
' to the destination of the
eEses to caretalcera of live stock will not
allowed ■■ all that can be claimed for
a provieion in a carrier's published tariff
ttiat "free or reduced transportation shall
not be issued for shippers or caretakers in
charge of live-atock shipments, whether car-
loads or less, and each shippers or care-
takers shall pay full fare returning." Such
Eovision implias that passes will be issued
the c — '"-
ipment.
[Hd. Note.— Tor otiisr easw, in Caniin, Ceot.
Dt i 1011.1
Oauuebs 4=3242— Pdbijbsed Baixs— Pat-
IttNT IH HOWBT— SkPAHAT* RAIX yOB
OABBiAaa OF CUbetakxb.
4. The failure of the published tariffs
of a carrier to make a separate rate, pay-
able in money, for the carriage of a care-
taker of an interstate shipment of live stock,
or to state separately how much of the pub-
lished rate for which the carrier is to traos->
Dort the live stock and their caretaker to
destination is to t>e treated as payment for
the trauaporttitlon of the stock and how
much for the carriage of the caretaker,
does not make the latter's presence on a
frdght train in charge of the shipment un-
iMrfnl, ao as to defeat his ri^bt to recover
4M
In caaa of Injury through tha car-
rier*! negitgence, einee, t^ the Act of Fdi-
ruary 4, 188T (24 Stat, at L. S8i>, chap.
104), § 0, as amended by the acta of June
20, 1006 (34 Btat. at L. e86, chap. 3S91).
June 18, ISIO (36 Stat, at L. 648, chi^t.
— 9 B), and August 24, 1012 (37 SUt.
of the form in which tariff schedules diau
be prqiared and arranged is committed to
the Interstate Commerce Commission, title
obviously being an administrative function
with which the courts will not interfere in
advance of a prior application to the Com-
[Bd. KotSL^-VDr other oasM, at* Oarrlers, Osat.
Dtl ML)
[No. 192.]
IN BRROB to the United States (Jlreult
Court of Appeals for the Fourth Circuit
to review a judgment which affirmed a
judgment of the Distrirt Court for the East-
em District of North Carolina in favor of
plaintiff in a personal-injury action. Af-
Sea same cue below, 13B a CL A. 950,
222 Fed. 802.
The facts ara stated In the q)inion.
Messrs. O. U. Bain {by special leave),
W. B. Rodman, John H. Small, and J.
Eenyon Wilson for plaintiff in error.
Messrs. Charles Whedbee and P. W.
McMvIlan for defendant In error. h
The judgment obtained In this case by tha
plaintiff in the district court, W. C. Chat-
man, and affirmed by the circuit court of
appeals for the fourth circuit, ia here for
On Decembn 1, 1911, tha plaintiff below '
(hereinafter designated as the plaintiff)
delivered to the Pennsylvania Railroad Com-
pany at Jersey City a carload of horses to
be carried to Hertford, North Carolina, and
was tendered by an agent of the company
for his signature the customary "uniform
live stock contract" of the Pennsytvani*
(^unpaoy, the essential provisions of which
ars printed in the margin.l
IThe provisions of the contract essential
be considered are, in substance, that the
company had received from Chatman a ear-
load of horses for transportation to Port
Norfolk for Hertford, North Carolina, "with
W. C. (Whatman In charge;" and that it was
received by the Pennsylvania Company "for
itself and on belialf of connecting carriers
tor transportation subject to the offlciol
tariffs, classiG cations and rulea of said com-
pany;" and "that the said shipper is at
«=3roroi
L* topic * KBT-NUUBBR in alt Ksr-Niuab«rad DUiSts * Ib|<m-^ (~> O I C
I.I. ^
ST SDFBEMS COURT REPORTER.
Dor. Tttat,
V nU nmtrMit wu retained hj the oom-
pany, but from it wkb detached a "coupon"
which was given to C3intmaJi, containing in
■ubstance an aclcnowledgment that he had
delivered live stock of the kind and nature
therein described, oonaigned to W. C. Chat-
man, destination Port Norfolk, Virginia,
Stoi Hertford, NorUi Carolina, "W. 0. Chatr
7 man, man'in oharge." Without other paae
or ticket than tble "coupon," and without
other payment than the publiafaed tariff on
the carload of stock, the Pennsylvania Rail-
road Company carried the plaintiff, with hie
carload of horaea, on a freight train to Nor-
folk, Virginia, where the car was delivered
to and accepted by the defendant company
for transportation to it« destination.
The plaintiff testifies that defendant's
eonductor saw him and knew he waa on the
ear up to the time the accident eomplaioed
of occurred.
The car in which the horses and th* plaii
tiff were being carried was derailed on de-
fendant's line, and the plaintiff, being in-
jured, sued for damages and secured the
judgment which we have before ns.
The negligence of the defendant is not
disputed.
On this record the defendant claima two
defeneeB, the first of which is:
That the plaintiff is not entitled to re-
cover, because when in jura], he was travel-
ing on a free pass issued pursuant t« the
terms of the live-stock contract in which he
had released the carriers from all liability
for any pergonal injury which he might
sustain, thus bringing hie claim within the
authority of Northern P. R. Co. t. Adams,
lui own sole risk and expense to load and
take care of and feed and water said stock
whiUt being transported . . . and
ther said carrier nor any connecting
rier is to be under any liability or duty
' with refcrenc« thereto, except in the actual
transportation of the eame .
that the shipper shall see that all doors and
openings in said car or care are at oil
times Eo closed and fastened as to prevent
the escape therefrom of any of the aaid
stock." It further provided that, in
sideration of the premises and of the
riage of a person or persons in charge of
•aid stock upon a freight train of said car-
rier or its connecting carriers without
charge, other tlian the sum paid or to be
paid for the transportation of the live stock
in his or her charge, that the said shipper
shall and will indemnify and save harmless
said carrier and every connecting carrier
from all claims and liabilities of every kind,
by reason of personal injury sustained by
the person in charge of said stock, whether
the same be caused by the negligence of said
earrioT or ooy connecting carrier, or other-
wlw.
192 n. B. MO, 48 L. «d. BIS, M Sap. OL
R^. 408.
In New York C. R. Co. y. Lockwood, IT
Wall. 38T, 384, 21 L. ed. 627, 641, it waa
decided that a person traveling tm a "droT-
er's pass," issued upon a live-stock con-
tract precisely similar In its terms to that
which we hare in thla caae, was a pas-
senger for hire, and that a releaae fmn
liability for injuries caused by the carrier's
n^Iigenc« was void because a common car-
rier could not lawfnllr itlpnlate for each ex-
Thls dodslon waa rendered In 1873, and
has been frequently approved : Grand
Trunk R Co. r. Stevens, 9S U. S. 655, 24 L.
ed. 635, ID Am. N^. Cos. 638; Liverpool
& a. W. Bteam Co. v. Phenlx Ins. Co. (Th«
Montana), 12& U. fi. 397, 32 L. ed. 783, to
Sup. Ct. Rep. 469; Baltimore & O. S. WjJ
■R. Co. T. Voigt, 176 U. 8. 488, 605, 44 L."
ed. G«0, S64, 20 Sup. Ct Rep. 386; Santa
Fe, P. ft P. R. Ca v. Grant Bros. Constr.
Co. 228 U. 8. 177, 184, 67 L. «d. 787, 781.
33 Sup. Ct Rep. 474; George N. Pierce Co.
v. Wells, F. ft Co. 236 U. S. 278, 283, 69 L.
ed. S76, GSl, SB Sup. Ct Rep. 361. This
court continues of the opinion expressed
by it in 1SS9, in Baltimore ft O. S. W. B.
Co. V. Voigt, 176 U. a 498, 605, 44 I<. ed.
560, 564, 20 Sup. Ct Rep. 386, that the
Lockwood Case "must be r^orded as estate
lishing a settled rule of policy."
But the plaintiff in error claims tliat thia
rule is no longer applicable to such a caae
as this we are considering, for the reason
that, while the plaintiff, as the shipper of
the stock, waa within the exception of S 1
of the amendmoit to the Act "to Regulate
There was printed upon this contract, aa
a part of it, the following:
"Release for Man or Men in Charge.
"In consideration ol the carriage of the
undersigned upon a freight train <3 the car-
rier or carriers named in the within con-
tract without charge, other than the sum
paid or to be paid for the carriage upon said
freight train of the live stock mentioned in
said contract, of which live stock . . .
in charge, the undersigned does herebj
voluntarily assume all risks of accidents or
damage to his person or property, and doea
hereby release and discharge the said car-
rier or carriers from everv and all claims,
liabilities and demands ot every kind, na-
ture and dcBcription for or on account of
any personal injury or damage of any kind
sustained by the undersigned so in chargs
of said stock, whether the same be caused
by the n^ligence of the said carrier or car-
riers or any of its or their employees, am
otherwise.
"(Signature of man In charge)
"W. a Chatmao.'
D,at,z.d>,.'^-.00'^IC
Ul«.
NORFOLK BOXytBEBX &. 00. r. CHATBUN.
601
CominercB" of June SO, IHM (34 Stat a.1
L. 684, chap. 3S01, CMnp. Stat. IBIS, |
8663), proMbiting the Ibbiuiim of any "In-
tantaU . . . frea paaa . • . ^cept
... to neceuary caretaken of live
■tock, poultij, and fiuit," 7ot thia ezcsp-
tion permitted bim to traTel free al charge
upon a "free pais or free tranBportation,"
and not «a a paaaeDger for hire on a free
paae, which would be a eontradictlon In
The Loekwood CaM ahowa that live-Btoelc
«ontra«ta auch as we have here, providing
for the transportation of earetalcere of atock
«n free pasaes, were in nae ij carriera aa
earlj aa 1S69 (IT Wall. 367, 36G], and that
thej hava continued in use up to thia time
ia apparent from the deeiaiona hereinbefore
cited, from the case at bar, and from man;
recently reported case*. Tripp y. Michigan
G. B. Co., 238 Fed. 449. Notwithstaud-
ing the fact, as we have seen, that such
transportation has been declared by a
long line of decisions not to be "free" In
the popular sense, but to be tran^rta-
tion for hire, with all of the legal incidents
of paid transportation, the carriers of the
country have continued to iaaoe It and to
designate it aa "tree."
With this legal and oommercial hlatorj
before us we must conclude that the deaig-
,anatioD "free pass," aa applied to tranapor-
gtation issued or given by railroad companieB
*to'sbippera and caretakera of stock, had
acquired a definite and well-known meaning,
■auctioned by the deciaions of thia court
and widely by the decieiona of the oourta of
the various atates, long prior to tiie enact-
ment of June 29, 1006, and that, therefore.
Congress must be presumed to have used
the deaiguation "free pass" In the sense
given to it by this judicial determination
when, in g 1 of that act, by specific excep-
tion, it permitted the continuance of the
then long established custom of issuing free
tranaportation or passes to shippers or care-
takers of live stock. Kepner v. United
Btatea, 195 U. S. 100, 49 L. ed. 114, 24 Sup.
Ct. Bep. 797, 1 Ann. Cas. 065; lAwder v.
Stone, 187 U. 8. 281, 293, 4T L. ed. ITS. 183,
S3 Sup. Ct. Rep. 79; Sutherland, Stat.
Constr. g 333.
It results that the "settled rule of policy"
•atabliahed by the Loekwood Case, and the
decisions following it, must be considered
unmodified by the Act to Regulate Com-
merce; that the plaintiff in charge of his
■tock, traveling upon a paaa permitted to
be issued by that act, wita a paatenger for
hire, and that defendant's first claim muat
therefore be denied.
The claim of the defendant that the plain-
tiff was unlawfully upon iti train because
Its publiahed tariff did not allow the iam-
ing ot fudt a pass aa that which the plain'
tiff waa using when injured ia without
The ortract from the defendant's tariff
relied upon to sustain thia claim, reads:
"Free or reduced transportaUon shall not
be Isaued for shlppen or caretakers In
charge of live-stodc shipmenta, whether ear-
loada or leaa, and such ahippers or Ctr^
takers shall pay full fara returning."
It la sufficient answer to this claim to
say that the railroad company is here de-
fending under the release from liability con-
tained in a contract of carriage, Isaued aa
required by law (g 7 of the Act of June
2B, IBOfi, 34 Stat, at L. 6S6, chap. 3591),
pursuant to the published tariffs of its eon-g)
necting, the initial, carrier, the Pennaylva-JJ
nia Railroad Company,aand it will not be*
heard in the courts to urge the inconsistent
defense that its own tariff made unlawful
this contract on which, in the altomative.
To thia we add that passes for caretakers,
not only to destination, hut returning to
point of shipment, were formerly general
(CleveUnd, P. ft A. R. Co. v. Curran, IS
Ohio St. 1, 2 Am. Bep. 362), and in some
parts of the country are still issued (Kirk-
endall v. Union P. R. Co. 118 C. C. A.
3S3, 200 Fed. 197, 200), and that. In our
opinion, the language of the notice quoted,
while obscurely worded, implies that such
paaaea will be issued by the defendant to
destination of the ahipment, and was in-
tended aa notice to ahippera that return
passes would not be allowed. The meaning
now claimed for thia notice would have been
unmistakably expreseed without the final
clauae, "and such shippers or caretakera
shall pay full fare retvmins." Why "re-
turning" if full fare were also to be paid
"goingT" Tariffs must not be made cun"
ningly devised nets in which to entangla
unauapIciouB or inexperienced shippers.
The second defenae of the railrmd com-
pany is in the alternative, and must be ciHl-
sidered becauae ita flrat defense has failed.
This claim ia that, under the Intoratato
Commerce Law, payment for the trajispor<
tation of passengers for hire oouM be mad*
only in money, and at a raU stated in a
tariff filed and puhliahed In the manner re-
quired by law; that no B^hj»te payment
for plaintiff's transportation was made in
mon^, and the c(»isideratioD for it must
be found, if at all, incorporated in the rato
charged for the stock, or in the service
which he was to render in caring for it in
tranait; and that, aa neither of these was
aeparately atated In any filed and publiahed
tariff, the plaintifTa presence upon the car
waa unlawful and he should not recover for
Injuries sustained.
vA_,OOglC
87 SUPREME COUST RBPORTBR.
Ooc. Tnai,
S b tkaa
a BMialdaniUoii of UiU eecood claim
t th»*drietidsDt theea facta, appearing of
record, are deoiaiTe: The defendant reliea
for ita defenae upon tliB temia of the live-
atock contract antered Into betneen ita con-
necting cairier, the Fetmaylvania Compan?,
ftod tha plaintifTj and, aTerring in its an-
swer that it reed Ted ttie ahipnient of horsea
"in accordance with the terma of aaid con-
tract," it clalma inununitj from liability
for damagea to the plaintiff luder the decla-
ration of that contract that : "In sonaidera-
tion of the carriage of the underaigned
(plaintiff) upon a freight train of the car-
rier or carriera named in the contract with-
out charge other than the aum paid or to
be paid for the carriage ... of the lire
■tock . . . the plaintiff aaaumed the
riik of accident and released aald carrier
or carriera from all liability to him for any
Injury which he might auatain."
While the record ia not aa clear «a could
be wished, the excerpts which It eontaina
from the filed tariSa of the Pennaylvania
Company and the llve-«todc contract, both
introduced in evidence by the defendant.
Justify the concluaion, certainly aa against
the defendant, that tha contract was a part
of the tariffs of the Pennsylvania Company,
filed and published according to law, and
that the defendant is bound by ita terma.
Treating this live-atock contract as a part
of the lawfully published tariffs of the
PennBylTsnla Company, under which the
contract for the carriage of the plaintiff
was made, and by which the defendant con-
feaaea itaelf bound, it ia dear that auch
tarlffa ahow the two carriera declaring that,
for the publiahed rate, payable in money,
the plaintiff's carload of sto^ and the
plaintiff himself, as a caretaker, would be
carried on freight trains from Jersey City
to the North Carolina destination; and, as
we have teen, the law declares that a care-
taker so carried is a pssaengei for hire,
against whom the release of liability on
^which the defendant relies muat be treated
Mas unreaaonable and void.
• "The objection that the published tariff of
the Pennaylvania Company did not apeeify
how much of the stipulated payment by
the plaintiff should be treated aa payment
for the tranaportctiou of the atock, and how
much for the tranaportation of the care-
taker, and that the payment for the carriage
of the plaintiff was not aeparately stated
in a passenger tariff, cannot be considered
In this case, for the reason that the Act
to Regulate Commerce {S 6. as amended
June 29, 1906, June 18, 1910 [36 Stat, at L.
' 848, chap. 300, S 9]. and August 24, 191S
[37 Stat, at L. 588, chap. 390, g 11, Comp.
Stat. leiB, S B589] ) commiU to the Inter-
state Commeroe Commiaaion the determin-
ing and prescribing of the form in which
tariff schedules shall be prepared and ar-
ranged, and this ia an obviously adminiatra-
tive function with which the courts wilt
not Interfere in advance of a prior appllca-
Uoa to the Interstate Commerce Conunie-
aion. Atchison, T. ft 8. F. R. Ca t. United
States, 232 U. 8. 199, 221, S8 L. ed. SSB,
57T, 34 Sup. Ct. Rep. 291; Tesaa APR.
Co. T. American Tie k "Hmber Co. 234 U.
S. 138, 68 U ed. 1255, 34 Sup. Ct. Rep. SS6.
It results that the aecond claim of the
defendant mnat be rejected because the fare
of the plaintiff was paid in money, pui^
suant to published tariffs, which clearly
ahowed the terma of the shipment of the
atock, with tranaportation for the plaintiff
included, In a form which, in the atate of
this record, mnat be considered as having
been satisfactory to the Interstate Com-
merce Commiasion, to which the determina-
tion of auch form was committed by law.
The claim that Charleston & W. C. R.
Co. Y. Thompson, 234 U. S. 576, 68 L. ed.
1476, 34 Sup. Ct Rep. 964, rules this cas%
cannot be allowed, for the sufficient reaaon
that the plaintiff in that case was found
to be traveling upon a gratuitous paaa, is-
sued without eonsideration, to a member of
the family of an employee. Behind such a
paaa there lay no such background of court
decision and of railroad practice as we have
here, giving definite inberpretation to the
statute as applied to "caretakers' pasaes,"
and therefore that ease fell without thi
scope of the Lockwood decision and wlthiiS
^e principle of Northern P. R. Co. v,»
Adams, 1B2 U. 8. 440, 48 U ed. 518, 24
Sup. Ct. Rep. 408, and Boering v. Ch<s»>
peaks Beach R. Go. 193 U. S. 442, 48
L. ed. 742, 24 Sup. Ct. Rep. 516.
The judgment of the Ciiouit Court of
Appeals is affirmed.
(H4 D. S. «&)
RAILROAD SUPPLY COMPAlfT. Pett-
ELYRIA IRON t STEEL OOMPANY.
PAIXIfTS «=9a2S— WHA.T COHBTITDTEI Il(-
VKJfXrO H— lUPROTB Wt NTB.
1. The alight variations claimed for the
Wolhaupter patents Noe. 638,809; 691,332;
721,844, for improvements in railroad U«
plates, from prior forma of auch plates, do
not constitute patentable invention.
PATcma «=32S — Fob lupBOVKUEina •—
ConBTKCcnon or Ouiub.
2. The atate of the prior art requires
that the Wolhaupter p&tenta Noe. 638,800;
601,332; 721,644, for improvements in rail-
iFor other csaea *es sim* topic * KBT-NTTUBBB
a all Ker-Nonbsisd DIsasta * iDdezaa
RAILROAD SUPPLY 00. y. BLYIUA IBON & 8. 00.
ArgaeA April IT and 18, 1917. Decided
Maj 21, 1917.
ON WRIT at Certionri to the United
States Circuit Court ol Appeals for the
Sixth Circuit, nliioh i.ffirmed » decree of
ttie District Court for the Northern DU-
trict of Ohio, diemieeing the l>tU in a pat-
ant infringement suit. Affirmed.
See Barae oaae beiow, 13D C. C. A. 447,
S13 Fed. 780.
The facte are stated in the (pinion.
Uessrs. Taylor E. Brown and ClarauM
S. Mehlhope for petitioner.
Meaara. Frederick P. Flab, Frank F.
Reed, and Edward S. Bogera for reapond-
On March ZS, 1Q06, the RaUroad Suf^l;
Company, petitioner, commenevd this euit
against the Eljria Iron k Bttti Company
In the circuit (now distriet) court for the
northern district of CAio, claiming infriog*-
Bent of claim No. 6 of United Statei let.
tera pat^t No. 638,809, grantad Ma; 7,
1803, of claims Noe. 1, 2, and 8 of patent
No. 091,332, granted January 14, 1902,
and of claima Nob. 7 and 9 of patent No.
721,644, granted Fabruary 24, 190S. AU
•f these patents, granted to B. Wolhaupter,
were acquired by the petitioner, and each
•f the three purported to deaoribe a new and
weful improTonent in railroad tie plates.
Such proceeding* were had in the case
that on March 4, 1912, the distriet court
decided that the petitioner's patenta were
not infringed fay the deTioe manufactured
and sold by the defendant.
On appeal to the circuit court of appeals
for the eiith olrcuit, that oourt, on April
^7, 1914, affirmed the decree of the district
geourt, dismissing the bill, and held in Ita
B qtinion that the claima of the patents re.
lied upon were void for want of patentable
Boveltj. This decree ia now here for review
tm certiorarL
A railroad tie plate, sometlmea called a
"wear plate," is a rectangular piece of
metal, originally with both surfaces flat, de-
aigned to be placed upon the tie immediately
under the rail, for the purpose of protect-
ing the tie from the wear, which, in soft
wood, ia very great, incident to the vibra-
Clon of the rail caused by paaaing engine*
■nd trains, and for the purpoae of holding
Uta rail more firmly in place than it could
•tlierwiaa be held by the spilcea without
the plate, thereby preserving the gauge ol
tlie track.
In the early days of r^lroading, whoi en-
gines and can were small and light, whan
spaed was cMnparatiTely slow, and when
hardwood, which held the apikei firmly In
place, was abundant and dieap, such plates
were little used; but the increase in weight
of rails and rolling stock, the higher speed
of trains, and the necessary use of the
cheaper soft woods for tie^ have brought
them into extensive use. The general use
of theae plates with heavy rolling stock
and traffic presented the problem of mak-
ing them as strong and inexpensive as poa-
sihle, and In a form lueh that they would
adhere firmly to the ties while doing the
least possible damage to the fiber of the
The statement of this problem shows con-
vincingly that even at the btginning it of-
fered a very limited field for invention, If,
indeed. It presented any field at all for the
exercise of that inventive genius which it Is
the polioy of tiie law to protect and reward
with a monopoly for seventeen years.
Hm olaims of the patents declared on ara
as follows: Claim 8 of Patent No. S38,SOB
"A railway tie plate formed on the tmder
side with devices more or less sharpened
adapted to penetrate and engage the tl(^
and on its upper side with a series of flangea
on which the rail rests, substantially aa^
described." K
* It would be difficult to writ* in more gear*
eial terms a description of any pUte, wheth.
er channeled, corrugated, grooved, or ribbed
on both sides.
Claima Nos. 1 and 2 of Patent No. 89V
33Z, differ so slightly that No. 1 will suffieet
"A railway tie plate provided on its up-
per aide with one or more fianges on which
the rail may rest or by which it is directly
sustained and on the under side with one
or more tie-engaging flangea extending
parallel with the ui^er flanges and dlreotly
beneath the latt«r, substantially aa d^
scribed."
Claims 7 and 9 of patoit No. 721,044 ar«
BO similar that only No. 7 need be quoted:
"A tie plate provided in its rail-support-
ing surface with transverse grooves or ehan-
nels, and at one margin of said supporting
surface with a transverse rail-abutting
shoulder."
Wolhauptar, the grantee of the three pat<
ents, was a civil engineer employed by a
railroad oouqtany, and he testifies that he
first turned his attention to tie plates for
the purpose of improving them "in the year
IS93 or early In 1894," and the earliest of
his three patents In suit Is dated M^ 7»
189S.
K topic * KBY-miHBEB
in all Kar-NumtMred Dliwt* A Indexes
L',oiii,j-,<^-.OOglC
B04
ST 8DFREUB COURT REFOSTEB.
The Mrlleat patent for » "wear" or tie
plats bj that specific name, which is ahi
1^ this record, was issued in 1881, and be-
tween that date and the date of the issuing
of the first patent in suit to Wolhaupter in
IS95 tweotj-six patents were issued, and in
tiie seven years between 1896 and 1902,
when Wolhaupter's second patent in suit
was isBued, nineteen more patents were is-
sued for various forms of this rimple device.
Thus it is seen that Wolhaupter came
late into this narrow, and even then much
exhausted, field «f investigation, and in his
first patent {not here in suit), dated De-
cemher 11, 1894, he claims invei
g placing one, or permtssiblj two, "elongated
"divided ridgea" on the under"8ide of such
a plate to engage the tie, and on the upp«'
aide a series of ridges parallel with those
on the lower side, but adapted, after being
rolled, to being cut awaj to form a seat for
the rait. There is no claim as to the rela-
tive position! of the ridges on the two faces
of the plate.
In his second patent (the first in snit),
his claim of invention is for "one or more"
flanges "more or less sharpened" (not di-
vided now) on the under side of the plate
to engage the tie, and on the upper side
a series of fiangea (ridges) on which the
rail maj rest. The flanges (ridges) on the
npper surface must not be placed vertically
aljove the flanges or ridges on the lower,
and there is no provision for cutting them
awaj for a rail seat as in the first patent.
The dominating thought of this patent is
the cutting of the plate "on a diagonal line
with relation to the rail flange," but as this
form of plate is not claimed by the pat-
entee in his later patents, and aa no merit
Is claimed for it in the testimony in the
record, it will t>e neglected.
In hie third patent Wolhaupter's inven-
tive genius placed the flanges on the under
aide parallel with and directly beneath those
on the upper side of the plate, instead of
between them, as in the second patent, or
regardless of either position, as in the first.
In his fourth patent the fiangea on the
lower side are given a position "tranaverse"
to the ridges on the upper side.
In the first three of petitioner's patents
the flanges on both surface! of the plate
are for uae parallel to the grain of the tie
and traUBVerse to the length of the rail.
In the fourth patent the flanges on the un-
der side are described in the specifications
and drawings as tranverse to, but in claim
four as parallel to, the grain of the tie.
The minute and obviously wholly tenta-
tive variations, thua described, in the plates
In the Wolhaupter patents, are fairly illus-
trative of the slight differences in form
given to this simple devica, tm whidi thia
Ooi. lBM,o
record shows forty Ore leparate patenta'
were granted during the twenfy-two yeaia
between 18S1 and I90S.
TUB discnasion of the reoord and refer-
ence to the respondent's patents brings na
to the question. Do the claims of tiiese pat-
ents describe an "invention or discovery"
or "a new and useful . . , manufactura
. . . or improvement thereof," such sa
our patent laws were designed to protect?
We have seen that long before Wolhaup-
ter's patents, tie ptatea were used for th«
purpoeea for which his plates were designed.
It was certainly obvious that if wedge-
shaped flanges, or ribs or claws, or other
downward projections, were placed on the
under side of such plates, they would pena-
trate the ties when weight was put upOB
them, and thua asaist in holding the rail in
p]u>.
Very certainly It waa also gsieral knowl*
edge before 1895 that if one wished to re-
duce the weight of a plate without loss of
strength, this could be done by using chan-
nel iron, angle iron, or corrugated iron, or,
which comes to the same thing, by having
the plate made with flanges or ribs [Servia
R. Tie Plate Co. v. Hamilton Steel £ I. Co.
8 Can. Eich. 381); and the placing of
flanges on the upper aide of auch plates to
engage the outer flange of the bottom of
the rail, and thus to receive the lateral
thrust caused by the flanges of the wheels,
tending to spread the rails, was also obvi<
ous and well known before Wolhaupter'B
patents.
To the obviousness of the elements nece^
sary to the solution of this problem must
be added the state of the art, if auch it may
be called, when Wolhaupter, late in 1863
or early in 1994, began, as he says, the
investigation of tie platea, and "famitiar-
ized himself with the literature of the sub-
ject." He testifles that be had seen the tie
plates of Servis (patented ISSl, No. 249,-
407; 1884, No. 294,818) and of Goldie (pat-
ented 18BT, No. 368,780; 1880, No. 428,530;^
1891, No. 457,684; 1891, No. 457,585; and*
1892, No. 486,030), and be is presumed by*
the law to have had all prior patraits before
him when he applied for his patent. Duer
Corbin Cabinet Lock Co. 149 U. S. 210,
3, 37 L. ed. 707, 710, 13 Sup. Ct R^
860; Mast, F. i. Co. v. Btover Mfg. Co. 177
485, 493, 44 L. ed. SG8, S60, 20 Sl^
Ct Rep. 708.
In the plates of Serris, Wolhanpter saw
plate with "m Bange or flanges formed on
the lower side" to engage the tie length-
wise of the grain of the wood, and, of course,
transverse to the rail, and in the Qoldia
patents he saw in No. 457,584 "a triangular
tooth-like projection" extending downward
from the bottom of the plate tJid a raiaed
,A_i00gle
iSlS.
RAILBOAD SUPPLY CO. V. ELYRIA IRON k B. CO.
^bcmlder on the .upper side to receive tbe
Utenil thrust of the edge of the rail flange,
«nd in patent No. 485,030 ha uw ft piste
■miib two down\rard projecting ribf to en-
^ge the tie, with a Bboulder on the upper
«ide to receive the thrust of the rail, and
with a "transTerse depresaion" in the upper
«urface, and be&ringB or flanges on each
aide ot this depression to receive and aap-
f ort the base of the rail.
Wb thus have Wolkaupter confessing that
before he applied for a patent he had knowl-
-edge of tie plates with "ridges," "flanges,"
and "teeth" projecting downwind frMD the
under side of them to engage the tie, differ-
ing at most 011I7 in form, and in this but
alightly, from Uie similar downward pro-
jecting flanges "more 01 less sharpened"
which appear in all three of his patents in
•nit; that he had knowledge of plates with
■* shoulder on the upper eurfaca to receive
the thrust of the side of the bottom of the
rail, not differing from the "rail-abutting
shoulder" shown in all three of his patents,
and that he also had knowledge of the latest
Goldie patented plate, with the upper sur-
face "channeled" by having a depression
extending across the plate under the cen-
tral portion of the bottom of the rail, and
with a bearing on each side of it to support
the rail.
S It is thus made very clear that the only
!? appearance 'even ot noTelty or of Invention
in the Wolhaupter plates is in their having
flanges on the upper surface, on which it is
intended the rail shall reat, for downward
extending flanges on the under aide and the
rail-abutting shoulder on the upper side are
found in earlier patents in almost precisely
tiie form which he gave to them. But such
'flanges on the upper surface of the Wol-
haupter plate cannot constitute of them-
'•elves patentable invention or novelty, for
It is very clear, as we have already said,
that a resort to channels, grooves, and cor-
rugations was a familiar method ot redu-
cing the weight and thereby the eoet of iron
plates without decreasing their strength,
long before the Wolhaupter patenta, and
-this form was, therefore, one to which any
akilful mechanic would turn to accomplish
iihe purpose that Wolhaupter claimed for
ft, and that others did so resort to this
'form is sufficiently shown by reference to
-the Wells patent. No. 203,S70 (1S78), the
-Wilson patent, No. 622,367 (1894), and the
Dunham patent, No. 460,386 (1802).
With these facte before him, tiie most that
«Ui be said for the patents in suit is that
they gave a somewhat different form to
-Uirae features which were perfectly familiar
and were similarly grouped in prior forms
«f tie plates, but without giving to any of
tiiem any new function aitd without aoeom-
plishlng by them any new result. lUs
brings the patents within the principle to
often declared that the "mere earrying for-
ward of the original thought, a change cmly
in form, proportions, or degree, doing the
same thing in the same way, by substantial-
ly the same means, with better results, is
not such an invention as will sustain m
patenL Koberts v. Kyer, SI U. S. 160, 23
L. ad. 267; BeLding Mfg. Cki. v. Challenge
Corn PUnter Co. Ifi2 U. 8. 100, 38 L. ed.
370, 14 Sup. Ct Rep. 492;" Market Street
Cable R. Co. v. Rowley, 16S U. S. 621, 629,
30 L. ed. 284, 288, IG Sup. Ct Rep. 224.
The device Involved in these patents la^
so simple and familiar in all of its forms*
that a description of it seems ■sufficient to*
visualize it to the reader, hut cuts of It In
various forms may be found in the rsported
decisions of this case (Railroad Supply Co.
V. Elyria Iron k Bteel Co. 130 C. C. A. 447,
213 Fed. 780], and in the report of the case,
involving the same claims of the same pat-
ents, in the seventh circuit, to be found in
Railroad Supply Co. v. Hart Steel Co. lOS
Fed. 418, and 138 C. C. A. 23, 222 Fed. 201.
Clearly persuaded aa we are that the
slight variations claimed for the patents in
suit from the plates which had gone before
do not constitute patentable invention, we
cannot consent to further extend this dis-
cussion by a minute comparison of them
with earlier patents appearing in the rec-
ord, but we content ourselves with adopting
as comment not to be improved upon in
such a case aa we have here the following
from a former decision of this court:
"The design of the patent laws Is to re-
ward those who make some substantial dim-
eovery or invention, which adds to our
knowledge and makes a step in advance in
the ueef u1 arte. Such inventions are worthy
of all favor. It was never the object ot
those laws to grant a monopoly for every
trifling device, every shadow of a shade of
an idea, which would naturally and spon-
taneoualf occur to any skilled mechanic or
operator in the ordinary progress of manu-
factures. Such an Indiscriminate creation
of exclusive privilege! t«ndB rather to oU
struct than to stimulate invention. It
creates a class of speculative schemers who
make It their business to watch the ad-
vancing wave of improvement, and gather
its foam in the form of patented monopoliea,
which enable them to lay a heavy tax upon
the industry of the country, without con-
tributing anything to the real advancement
of the arts. It embarrassea the honest pur-
suit of business with fears and apprehea-
slona of concealed liens and unknown
liabilities to lawsuits and vexatious afr
countings for profits made In good faith."
A^^OOglC
37 SUPREME COURT REPORTER.
AtUntic Works t. Bimij, lOT U. S. 192, 800,
2tT L. •! 438, 441, 2 Sup, Ct Rep. 226.
? 'Wa add that eieh ol the patentt of tbe
petitioner being In terniB for an "improve-
ment in tie platea," Qte itato of the "prior
art" aa described In thia opinii» require!
that thej be limited strictly to the form
described in the claims, and tberefore the
patents In suit, even if the^ bad proved
valid, would not have been infringed by
the plates manufactured by tbe defendant
The decree of the Circuit Court of Ap-
peals is affirmed.
Hr. Justice Dar did not take any part
bt the decisicm of tikis case.
(M tr. a. m)
HART STEEL COMPANY and Guilford 8.
Wood, Petitioners,
RAILROAD SUPPLY COMPANY.
Patknti «=9324$)— Fkiob AsjuDicATiona
—Tiia AHD MAHHKa or Raibinq Ques
TIOH.
1. A claim tliat a floai judgment of a
Federal circuit court of appeals in a pat-
ent infringement suit is res judicata in a
suit then pending undetermined in anotber
drcuit court of appeals, because of iden-
tity of subject-matter and privity of the
Duties, was presented properly and in time
I^ a motion filed on the first day of tbe next
ensuing term of the latter court, praying
tliat court to affirm the decree beloi* upon
the ground that sJI the issues in the case
had been fully and finally determined and
adjudicated in the other suit, whicli, the
tion stated, wa* l>rought by tbe same c
plainant against a defendant with which the
moving parties were in privity, together
with a copy of the record and journal in
such other suit, ahowing tliat the two rec-
ords were Identical.
- Pab-
I Ma.]
Jvoaiain «»701— Rn Judicata
TIES— PaiVTTT.
2. Hie salaried manager of a corpora-
tion and the corporation itself, the capital
■tock of vrhicb is ali owned by another cor-
poration for which it is a mere sales agent,
are so obviously in privity with tbe holding
corporation that a nnal decree of a Federa.!
circuit court of appeaU in favor of that
corporation in a suit brought against it for
the inrringemeut of certain patents which
tbe court finds to he void for want of in-
vention must be treated as res judicata in
a suit brought in another circuit by the
same complainant, against the former cor-
poration and its manager, involving the
•ame subject-matter and Iesubs.
[Bd. Note.— Tor othsr ouei, hi
Cant. Die i U2(.]
[No. 9T.1
Argued April 17 and 18, 1917. Decided
May 21, 1917.
ON WRIT of Certiorari to tbe United
States Circuit Court of Appeals for the
Seventh Circuit to review a decree which
reversed a decree of tbe District Court for
the NoTthem District of Illinois, dismiaiing
the bill in a patent infringement sulL Re-
versed.
See same eaae bdow, IS8 C. C. A. S3, 22S
Fad. 261.
Tbe facta aj« stated In the (pinion.
Messrs. Frederick P, Fisb, Frank F.
Reed, and Edward B. Rogers, (or petition-
Messrs. Taylor E. Brown and Clareoce
B. Mehlhope for respondent ^
* Mr. Justice Clarke delivered the oplnlm?
of the court :
This suit Is here on oertlorari to review
the decision of the circuit court of i^peala
for the seventh circuit
On December 9, 1908, the reepondent
herein, the Railroad Supply Company, aa
owner of three United States patents, via,
Nos. 638,809, ■601,332, and 721,844, filed a
bill in the district court for the northern
district of Diinois againat the Hart Steel
Company and Quilford 8. Wood, praying
that the defendants be restrained from in-
fringing certain designated claims of its
patents, which are described in their speci-
flcations as covering new and useful im-
provements in railway tie plates. This
case will be hereinafter referred to as the
First Case,
TTiree months later, on March 28, 1909,
the same piaintifl' commenced a second suit
against the Elyria Iron & Steel Company
in the district court for the northern dis-
trict of Ohio, praying for the same relief
with respect to the same claim of the aame_
patents as in the First Case, fi
'The two bills differed only aa to the par-*
ties defendant The Elyrla Iron ft Steel
Company, the defendant in the Second Cas^
was a manufacturing corporation and waa
the owner of all of the capital stock of the
Hart Steel Company, the defendant in the
First Case, which was the selling agent of
the Elyria Company, and Wood waa ita
manager.
e same defenses being relied upon in
the two cases, the evidence was taken in
the first one, and by stipulation a carbon
copy of it was filed in the second, and the
,me exhibits were used in the two.
Hie claimed infringement consisted in the
manufacture of a single order of tie plate*
by tbe Elyria Company and the sale of them
by the Hart Company, with Wood as it*
is topic k KEY-NUUBBR Id all Ksr -Numbered DlsesU A ludci
igic
i»ie.
EAKT STEEL CO. t. BAILBOAD SUPPLY Ca
807
muiaeer, to Um Atchison, Topeka, k B»atM.
7e Rftilroad Compuif.
Such proceedings were had In the First
Cam thmt on December 18, 1911, the cir-
cuit court tor tiie northern district of Illi-
nois decided that the construction or device
sold bj' the defendants did not infringe
eloIniH of the plaintiff's patoita relied opoOf
ftiid diamissed the bill lor want of equity.
In the Second Caoe such proceedings we
had that on Mareb 4, 1D12, the district
eonrt for the northern district of Ohio en-
tered precisely the same decree as was en-
tered in the First Case.
Each case was appealed to the a^ro-
priate circuit court of appeals and on April
7, 1914, that court for the sixth circuit, in
a carcfullf considered opinitHi, found the
claims of the patents relied upon Toid for
want of novelty and invention, and ai&rmed
the decision of the district court. A peti-
ticot for rehearing was denied on the SOth
day of the following June.
On the 6th day of October, 1B14, the &jst
l.lay of the next enauing term of tha oircuit
geourt of appeals for the seventh circuit, the
■ defendants In the first suit, which*was sUU
pending undetermined, filed a motion pray-
ing that court to affirm the decree of the
elrcuit court, upon the ground that all of
the issuea in the ease had been fully and
Anally determined and adjudicated by ths
circuit court of appeals of the sixth eireuit
In the Second Case between the plaintiff and
the Elyria Iron k Steel Company, with
which the moving defendants, the Hart Steel
Company and Guilford S. Wood, were in
privity. In support of this motion a eopf
of the record and journal entries in tiu
Second Case was filed, which showed that
the two records were "identical."
The record abows that this motion to
affirm the decree of the circuit court was
argued orally on October S, 1914, and was
on the same day denied, but no reason ap-
peara in the record for such denial.
Subsequently tbe eaae was argued on it*
merits and on January 6th, 191G, the eir-
euit court of appeals tor tbe seventh cir-
cuit found the plaintiff's patents valid and
infringed, and, reversing the decision of
the circuit court (then tbe diatrict court),
remanded the case with an order for an ae-
eounting.
The Hart Steel Company and Wood, aa
petitioners in this court, assign aa error
the overruling by the circuit court of ap-
peals of tbe seventh circuit of their motion
t» affirm the decision of tha circuit eourt
In their favor.
It is apparent from the forgoing itats-
Stent that the question presented to ths
eircutt court of appeals of the seventh cir-
cuit by the petitioners' moUon to affirm was
whether or not the decree of the (dreolt
court of appeals of the sixth circuit waa a
final determination of the issues presented
in the case pending and not yet argued in
the circuit court of appeals ot the seventh
circuit so as to be rea judicata and binding
on that court because of the identity of tha
subject-matter and the claims and because
of Ute privity of the parties, ^
Tbe doctrine of res judicata is fully ap-<s
plicable to cases 'of patent infringement*
{Robinson, Patents, g 083; Walker, Patents,
9 4SS), and while the record does not show
the grounda upon which the motion to affirm
waa overruled, it doea show that the mo-
tion was argued, waa considered by tbe
court, and denied. If authority be needed
to the point that the claim thus made for
the effect of the judgment of the circuit
court of appeals of the sixth circuit waa
presented properly and in time, it may tm
found in Stout v. Lye, 103 U. B. 66, 26 li,
ed. 428; Sheldon t. FatUrson, GO 111. C07j
Howard v. Mitchell, 14 Maaa. 241.
There can be no doubt from the record
before ua that the Elyria Company owned
all of the capital atock of the Hart Com-
pany, that the latter company was a mere
sales agent of the former, that Wood waa
the salaried manager of the latter, that
both the Hart Company and Wood were
agents, subject to the control of the Elyria
Company, and that in selling the tie plates
and as defendants in the litigation tb^
acted wholly under the authority and in
the interest of their prIneipsJ. Identity of
interest could not tie clearer or closer than
it was between the defendants in the two
cases, — they repreaented precisely the same,
single interest, and the Hart Company and
Wood, as agents of the Elyria Company,
were ohriously and necessarily privies to
the Judffmetit rendered In its favor In the cir-
cuit court of appeals for the sixth circuit.
Bank of Kentucky t. Stone, 8S Fed. 383, af-
firmed In Kentucky Bank Tax Cases. 174 U.
S. 40S (4S L. ed. U87, IS Sop. OL Bep. SSI} ;
Emery v. Fowler, 38 Me. 320, 6S Am. Deo.
627; Castle v. Noyes, 14 N. Y. S2«-, Emma
Silver Hin. Co. v. Emma Silver Min. Co.
7 Fed. 401.
With the identity of the subject-matter
and iaanes of the two caaee admitted, the
privity of parties to them dear, and tbe
question of the ruling effect of the decree
of the circuit court of appeals for Oie sixth
circuit presented in an appropriate manner
to the circuit eourt of appeals of the Seventh,
circuit, a court ot co-ordinate JuTisdictiou,S
■we cannot doubt that the latter court fell*
into error in not sustaining the motion of
tbe petitioners to affirm tbe decision of tha
dreuit courL Tbe defendants should not
have been put to further opense, delay.
,A_.OOglC
008
37 SUPREME COUHT EBPORTBB.
Oot. Tebi^
•nd trsnble ftfter the modon was premnted.
The queBtion U ruled b; Keuler t. Eldred,
E06 U. S. 286, 51 L. «d. 1065, 27 Sup. Ct
Rep. 611; Biill t. Waahington R. k Elec-
trio Co. 215 U. 8. 627, 64 L, ed. 311, 30
8up. Ct Rep. 177; wid Ruaae]! v. Place, 94
V. S. BOB, 24 L. ed. 214.
This doctrine of rca judicata la not a
mere matter of practice or procedurt
berited from a more technical time than
ours. It la R rule of fundamental aud
Bubatantial justice, "of pnblio policy and
of private peace," which should be cordially
regarded and enforced by the courts to the
end that rights once esta-bliebed by the flnal
judgment of a court of competent juriadic-
tion shall be recognized by those who are
bound by It iu every way, wherever the
judgment ta entitlad to reapect. Kessler
V. Eldred, inpra.
Tie conclnaion which we have reached
in the Second Caae, Railroad Supply Co. v.
Elyria Iron k Steel Co. this day decided
(244 U. 8. 285. 61 L. ed. — , 37 Sup. Ct
Rep. S02], with respect to the merits of the
patents involved In this lidsatioD, ia auch
that It leaves our deciaion in thia case un
plicated by the one in that. Ihe decree of
the Circuit Court of Appeals ia reversed.
STATE OF NEW JERSEY. (No. 189.)
FRANK MIHM, Plff. in Err,
STATE OF iTEW JEHSEY. <No. IflO.)
CAB&iEits «=»120)— Police Powkb — Rk-
QUIBINO STBKET RaILWATB TO CaBBT PO-
LICE OnncEBB FUIE— RXBEBVED POffSB TO
AmMD COBPORATE CUABTEB.
The requirement of N. J. Laws 1912,
E. !35, that street railway companies grant
ree transportation to eity detectlvea not
in uniform when in the discharge of their
public duties, cannot be said to contravene
United Statea Const. 14th Amend., as being
an arbitrary or unreasonable exercise of the
police power, — especially where the charter
of the street railway company in question
waa, under N. J. Const art 4, | 7, par. 11.
and N. J. t«wa 1846, p. 17, subject to alteta-
tioo, in the diacretion of the legislature,
~- " - - itbar easM, sM Carrier* Cent.
pu. N
[Nos. 180, 190.]
Argued and submitted April 20, 1917. De-
cided May 21. 1817.
TWO WRITS of Error to the Court of
Errors and Appeals of the State of
New Jeraey to review judgments which af-
firmed jui^ments of the Supreme Court of
that state, affirming convictions in the First
Criminal Court of Jersey City of viola-
tions of a atats statute requiring street
railway oompaniea to carry police offioers
free. Affirmed.
See same case below, in No. 189, 87 N.
J. L. 192, L.RJ — , — , 04 Atl. 788; in N«.
lOO, 87 N. J. L. 332, 04 Atl. 789.
The facts are stated in the opinion.
Mr. PrMik Bergen for plaintiffs In m-
Mr. John Bentley for defendant In error,
Mr. Justice Braudels delivered Uie opin-
ion of the court;
These cases were argued together. In^
each the New Jersey statute (Pamph. Laws^
1912, p. 236 1) requiring street 'rail way com-*
panles to grant free transportation to po>
lice ofllccrs while engaged in the perform-
ance of their public duties is assailed aa In-
valid under the 14th Amendment. In each
a prosecution for aasault and battery was
brought against an inspector employed by
the Public Service Railway Company (tf
Jersey <3ty, for ejecting a city deteetiv*
who refused to pay his fare. Both dete^
Uvea were in plain clothes, but showed their
badges and elaiined the right to ride fres
of diarge. Both detectives were on duty at
the time, — one was on his way to report at
headquarters; the other to interview the
victim of a robbery. The defense in each
case was ths unoonstitutlonality of the stat-
uts and that the detective, having wrong-
fully refused to pay his fare, was ejected
with no more than necessary force. The po-
lice justice, before wham the proaecutions
were instituted, found the defendanta guilty
and fined them. These judgments were af-
firmed in successive appeals to the supreme
court and to the court of errors and appeals
of New Jersey. 83 N. J. L. 46. 84 Atl. 1037 1
87 N. J. L. 102, L.R.A.— ,— , 04 Atl. 788.
The ease comes here on writ of error.
The supreme court of New Jersey saidt
"Policemen are frequently required to b«
'1 1. On and after the passage of thia met
each street railway company or corporation
referred to in the act to which this act is
a supplement shall grant free transport*,
tion of uniformed public officers while en-
gaged in the performance of their public
duties, or police ollicers of whatever grade
or rank acting as detectives, county de-
ectives, or detcctivee attachal to or coo-
lected wiih the office of the prosecutor of
the pleas in any county in this state while
erga^ in the performance of their publis
duties, whose duties require police duty to
be performed without uniform."
Ic * KEY-NUMBER In aU Ker-Numb«Tsd DlawU * IndsiM'
SIC
oa itrcet c«ra In the axacutlon ot their
4ntiM to preserve the peace, to enforce ordt
aftncee, kud to prerent or detect ciima. It
would b« difflcolt to u; that the mere pres-
<Bee of A police officer might Dot be of value
Sfor Mcuring these objects ... at anj
rnte, the legisUtnre might *rea8onabl7 think
BO, ud legalize hii preaotce on Uie car
without payineut of fare."
Freedom to come and go upon the itreet
can without the obstacle or discouragement
Incident to pajment of fares may well hare
been deemed by the legialature essential to
(dBcient and pervasive performance of the
police dutj. Increased protection maj
thereby oture to both the companT- and the
generii public without imposing upon the
former an appreciable burden. If any evi-
dence of the reasonableness of the provision
were needed, it could be found in the fact
that such oCBcera had been Toluutarily car-
ried free bj the company and Ita predeces-
■ors for at least eighteen jean prior to
July 4, lOIO, when the practice was pro-
hibited bj the Public Utilities Act (Pamph.
Xawb 1910, p. G8). In the following year
such free transportation was expreaslj per-
mitted (Pamph. Laws IBll, p. 29), and It
was made mandatory by the act here in
question. We cannot say that the require-
ment that city detectives not in uniform be
ouried free on street can when in the dis-
aharge of their duties Is an arbitrary or un-
reuonable exercise of the police power.
Furthermore the charter of the Railway
Company wa* subject to alteration in the
discretion of the legislature (N. J. Const,
•rt. 4, 5 T. t llj Pamph. Laws 1846, p. 17).
Hie obligation to carry free dty detectives
engaged In the discharge of thdr duties is
a burden far lighter Uian others imposed
upon street-using corporations which have
been sustained by this court aa a valid exer-
cise of the reserved power.!
The statute U broad in scope, extending
also to all "uniformed public officers;" hut
^the court below expressly confined its deci-
jjsion to the ease presented, sustaining the
* law "in so far as it applies to police of-
flcera;" and our decision is likewise ao lim-
ited.
TiM judgments are affirmed.
Hr. Justice HcEimua and Mx. Justice
Pitney dissent.
'Stanislaus County t. San Joaquin ft E.
River Canal &. Irrig. Co, 192 U. S. 201, 48
L. ed. 400, 24 Sup. Ct Sep. 241; San An-
tonio Traction Co. v. Alteelt, 200 U. B. 804,
60 L. ed. 401, 26 Sup. CL Eep. 261; Fair
Haven ft W. R. Co. v. New Haven, 203 U.
& 379, SI L. ad. 287, 27 Sup. Ct Eep. 74,
UNITED COPPER SECURITIES COM-
PANY and Arthur P. Heinze, PIffs. ia
Error,
AHALOAMATED COPPER COMPANY,
Anaconda Copper Company, Adolph Low-
bahn. United Copper Company, et aL
- Stockholdbbs'
I Equnr.
n a corporation which
OOBFOunoita ^320e<U -
Suits— AonoM at LlLW c
1. A stockholder ii
Is alleged to have a
ages against others for conduct in violation
of the Sherman-Antt- trust Act of July 2,
1890 (26 Stat at L. 200, ohap. 647, Comp.
Stat. 1016, S 8S20), may not sue at law to
recover such damages in the right of the
corporation upon the latter's refusal, after
request, to institute the suit itself,— espe-
cially where there is no claim that the c(tf-
poration is in the control of the alleged
wrongdoers, or that its directors stand in
any relation to them, or that they have been
guilty of any misconduct, and there is not
even an allegation that their action in ro>
fusing to bring such suit is unwise, and no
application appears to have been made to
any of the other stockholders, since even if
the circumstances were such — as they are
not — OS to justify individual stockholders
in seeking the aid of the court to enforce
rights of the corporation, their remedy la
in equity, not at law.
lEd. Note.— For otbor caiM. sa« Corporations,
Cent. DlB. i ni.}
Appxai. AXB BuoB «=3330(2)— PaktiM —
SUBSTITUTIOK.
2. Receivers of a New Jersey corpora-
tion, appointed by a court of diancery of
that state, will not be substituted as plain-
tiffa in error in a stoidcholders' suit pend-
Ing In the Federal Supreme Court on writ
of error, where the affidavits opposing the
motion for substitution disclose that more
than four years previously a Federal dis-
trict court in another state had appointed
other persons receivers for such corporation,
and had vested in those receivers all the
corporate assets, and that these persons had
been appointed suclUary receivers by the
Federal district court for the district of
New Jersey.
[BO. Nut*.— Tor otlMT casas, see Appeal and
■rror. Cent. Dli. | ISU.]
[No. 208.]
Court of Appeals for the Second Circuit
to review a judgment which affirmed a judg-
ment of the District Court for the Southern
District of New York, sustaining demurrers
to, and dismissing, the complaint in an ac-
tion at law brought by a stockholder on be-
half of the corporation to recover damages
under the Sherman Anti-truat AcL AI-
>r oOier casas sea sams topic ft KBT-NUHBBia In all K*7-Numb«r«4 Dliesta ft ladensK )Q I C
EU
37 SUPREME CODBT REPOHTEB.
Ocn. Tnw,
See lame c«m below, T.B A — , — , 139 '
C. C, A. 15, 223 Fed. 421.
The facta are stated fn the oplnfon.
MeEsra. Ferdlnfind E. H. Bnllona and
Jtalph Jamea M. Bullowa lor plaintiffi iit
f Ifr. JuBtice Brftndals delivered the opin'
Ion of the court:
This is an action at law. The complaint
alltgea that plaintiffs are the holders of more
than 200 of the fiOO,000 shares of the out-
itanding stock of the defendant United Cop-
per Company, a New Jersey corporation;
that the defendanta other than that com-
pany have by conduct violating the Sherman
Law (Act of July 2, 1890, chap. 647, 8S
etat at L. 209, Comp. Stat. ISIS, | 6820)
injured It to the extent of more than
tS,0O0,000; 1 and that:
"IV. In or about the month ol January,
1912, and before the commencement of this
action, the plaintiffB, United Copper Secui
tiee Company and Arthnr P. Heinie, each
made a demand upon the defendant. United
Copper Canipany, that this or a like action
be iUBtituted by said oorporatloD defendant,
and said corporation defendant and its
board of directors have refused to comply
with B^d demand, and have failed and re-
fused to commence or cause to be commenced
any action whatever In eompliaiioa tbere-
gwith.
N "V. This action is commenced and proM-
-euted by the'plaintiff United Copper Securi-
ties Company, and by the plaintiff Arthur
P. Eeinze, each individually and for himself
and also on his own behaU and on behalf
of all the other Btockbolders of said United
Copper Company."
The complaint eoncludea:
"Wherefore, the plaintiffi demand Judg-
ment in their favor and In favor of any
■tockholdera of the United Copper Com-
pany who may join with them In the proee-
tnition of this action in the sum of threefold
damages under g 7 of the act of Congress
aforesaid, and that each of the defendants
•ball be compelled to pay the damagea bus-
1 The bill is framed on the theory that the
injury to the United Copper Company waa
BulT<'rcd directly, as a competitor of the oth-
er defendants, and the case will be discussed
on that supposition. It is proper to observe,
however, that the allegations of the bill are
ambigTious in thia respect, and that the
United Copper Company appears to have
been a mere holding company, which suf-
fered injury_ only indirectly as controlling
Btockliolder in various mining companiM al<
legcd to have been dajnaged \>f tho MD-
tained by the United Copper Compw^, aa
hereinbefore alleged."
The district court sustained a demurrer
and dismissed the complaint. Its judgment
was affirmed by the circuit court of appeala.
L.R.A.— , — , 139 C. C. A. 15. 223 Fed. 421;
and the case comes here on writ of error. A
motion for subBtitution of plaintiffs, here-
after referred to, waa made In this oourt
and argued with the merits.
There is no statement in the complaint
that the alleged wrongful acts have caused
injury to the plaintiffs as individual Bhaie-
holdera; and no recovery la sou^t for dam-
ages to them or to theii property. Tlie case
Involves, therefore, this single question:
Whether a stockholder in a corporation
which Ib alleged to have a cause of action
in damages against others for conduct in
violation of the Sherman Act may sua at
law to recover such damages in the right
of the corporation if, after request, it re-
fuses to institute the suit itself? Insuper*
able obstafies to the maintenance of the
action are presented both by the substan-
tive law and by the law of procedure.
Whether or not a corporation shall seek
to enforce In the courts a causa of action
for damages is, like other business question^
ordinarily a matter of interna] manag*-
meut, and is left to the discretion of tbs^
directors, in the absence of instructios bn
vote of the Btockholders. Courts* Intortea*
seldom ta aoutrol such discretion Intra virag
the corporation, except where the direeton
•re guilty of misconduct equivalent to a
breach of trust, or where they atand in a
dual relation which prevents an unpreju-
diced axeroise of Judgment; and, as a rai%
only after application to the stockholder^
unless it appears that there was no oppor-
tunity for such application, that auch appli-
cation would be futile (aa where the wrong*
doers control the corporation), or that tha
delay involved would defeat recovery.! In
the instant case there is no allegation that
the United Copper Company is In the cmi-
trol of the alleged wrongdoers, or that
its directors stand in any relations to them,
or that they have been guilty of any mia-
conduct whatsoever. Nor is there evra an
allegation that their action In refuaing to
bring such Buit is unwise. No appIieatioB
■Hawes t. Oakland (Hawes t. Contn
Costa Water Co.] 104 U. B. 46(^ 20 I<. ad.
827; Qoincy v. Steel, 120 U. a 241, 30 lo
ed. 624, 7 Sup. Ct. Rep. 820; Corbna v.
Alaska Treadwell Gold Min. Co. 187 U. Q,
456, 47 L. ed. 26S, 23 Sup. Ct Rq). lS7t
Delaware & H. Co. v. Albany t 8. R. Co.
213 U. a. 435, 6S L. ad. 862, 29 Sup. Ot
R^. 540. See Hacon, D. A S. B. Co. v.
Shailer, 72 C. & A. 63^ 141 Fad. ML
D,at,z.,i-.,'^-.00'^IC
1918.
EAUEIH T. NEW VORE RAILWAYS 00.
611
ftppMn to hare been siKde to tha atock*
holder! a* a body, or Indeed to any other
■tocklioldeTa individually; nor does it ap-
p«ar tliat there iras no opportunity to moke
it, and no specinl facta are ahomi which
render such application unneeeasary. For
aught that appeara, the courae pursued by
the directors haa the approval of all the
■tockholdera except the plaintiffs. The fact
that the cause of action ia baaed on the
Bherman I«w does not limit the discretion
of the directors or the power of the body
of stoekholdera; nor does it give to Individ-
nal shareholders the ri^t to interfere with
the internal management of the corporation.
But even if the circumatances were auch
■a to justify individual stockholders In
seeking the aid of the court to enforce rights
of the corporation, it Is clear that thdr
Sremedy is not at law.* He particular
.equitable relief* sought in Fleitmann v.
Welebach Street Lighting Co. 240 U. 8. 27,
80 L. ed. G06, 36 Sup. Ct. Rep. 233, was
denied ; but this denial affords no reason
for asBuming that the long-settled rule un-
der which stockholders may seek such relief
only in a court of equity will be departed
from because the cause of action involved
arises under the Bherman Law.
This action waa commenced May S, 1912.
The judgment dlBmlBsing the complaint was
rendered in the district court September 84,
1914, and affirmed by the circuit court of
appeals April 13, 1916. Hie ease was Al-
tered in this court July 27, 1916. On April
7, 1017, about a fortnight before the case
waa reached for argument, George D. Hen-
drickson and Luther Martin, Jr., filed in
thla court a motion that tbey be substituted
aa plaintiffs in error. The motion recites
that they bad, on March I, 1017, been ap-
pointed receivers of the United Copper Com-
pany by the court of chancery of New Jer-
sey, and had on April 2, 1017, Iieen authcv*
Ized by it to apply for such substitution.
Annexed to the motion is a copy of the peti-
tion for appointment of the receivers which
alleges that the United Copper Company had
m February 28, lOlS, been disaolved by
proclamation of the governor of New Jer-
sey for failure to pay franchise taxes; and
that it had assets of large value ; but that
■ Eawes t. Oakland (Hawea v. Contra
CoaU Water Co.) 104 U. S. 450, 454, 2S L.
•d. 827, 829: Quin<7 v. Steel, 120 U. S. 241,
SO L. ed. 624, 7 Sup. Ct Rep. 620. The
latter case waa an equity suit by a stock-
holder to enforce a purely legal claim of
the corporation, — damages tor breach of con-
tract; end the court sustained a demurrer
to the bill, not because the suit should have
been at law, but because the bill failed to
show that complainant had made sufficient
nlfort to induce the directors to enter suit.
its directors named (who, under the sta^
ute, thereupon became truatees for the cor-
poration) had taken no etepa whatever to
collect its asseta or settle its affairs and
were not fit and proper perscns to be In-
trusted with them. Only by opposing affi-
davits, filed by defendants, was it disclosed
that, on February 10, 1S13, mora than four
years previously, the district court of tlw
United States for the southern district ofa
New York bad appointed other receivers of||
tha*United Copper Company, and had vested*
in those receivers the possession of
"all the properties owned by the said d«-
fendant" [the United Copper Company] "or
in which the said defendant haa any owner-
ship or interest, whether such property be
real, personal, or mixed, of whatsoever kind
and desariptloo, and wheresoever situated,
including . . . things in action, credits,
stocks, bonds, securities, shares of stock
in the corporations described in tha said
bill of complaint, and all shares of stock,
certiflcatea of equitable interest, and other
certidcatea representing any interest in any
property, and all other securities of what-
soever character owned by the defendant
company or in which it has any interest or
which it controls directly or indirectly," and
that on February 14, 1913, the same persons
had been appointed ancillary receivers by
the United States district court tor tin
district of New Jersey. We have no oo-
easlon to consider the power of this court
to grant the motion tor substitution. See
Kansas P. R. Co. t. Twombly, 100 U. S. 78,
81, 26 L. ed. 660. It is without merit and
Is denied.
Judgment affirmed.
(M4 U. a MS)
JOHN W. HAMER et al., Appt»,
NEW YORK RAILWAYS COMPANY «t aL
JuDOMENT v=>681— Mbrou ot Caube of
Action.
1. The recovery by the trustee in a cor-
porate mortgage of a deficiency judgment
against the guarantor of the mortgage bonds
extinguished through merger any original
cause of action which the bondholders indi-
vidually or collectively may have had unda
■ueh guaranty.
[Bd, NoU. — For other caMa, sea JudsmsD^
Cent. Dig. I UU.2
CouKTs *=314— Jdwbiuction — Divkxsk
OlTtZlfjSHIP— AlJONlIKNT OF PABTUS.
2. A eontroversy between citizens of dif-
ferent states justiciable in a Federal
district court. Is not Involved In a suit by
nonresidents, who constituted a bondholders'
committee repreaentinz a large majority of
the holders of defaulted mortgage bonds,
against the trustee, refusing to sue, the
guarantor of the bonds, and the tatter's suc-
cessor under a reorganization plan,— ^U
4I=3Far otber ci
» topic * KBT-NOUBER In all Ker-NumlHrsd Dltasts * Indues )i
.gic
87 SUPKBMB COUHI REPORTEB.
Oat. Tom,
tlons, — to enforce out of the property of the
new corporation eatisfaction of & deficiency
judgment entered against the guara.ntor in
the forecloBure suit, since the truatee, hold-
ing such deficiency judgment for the bene-
fit of all the bondholders, has a. real intei>
eat in the coDtroversy which makes it r
necessary party to the suit, and must be
Aligned as * party plaintiff, where iU In-
ter eat lies.
[Bd. Note.— For otliir e—m, mat CoutU, C«nl.
Dig. 1
!0.]
CousTS ^=264(5) ~- iLNciij.&BT Jvaiamo-
3. A Buit by the members of a bondhold-
ers' committee against the trustee in the
mortgage, the corporate guarantor of the
bonda, and the latter's successor under a
reorganization plan, to uiforce out of the
property of the new corporation latisfao-
tion of a deficiency judgment against the
guarantor upon its guaranty, cannot be
maintained in a Federal court without re-
Erd to the citizenship of the parties, as
ing ancillary to foreclosure proceedings
in that court against tlie guarantor, where
there was no reservation concerning liens
or similar right* when the property was
sold under tlie foreclosure decree, and the
bill does not purport to be ancillary to the
foreclosure proceedings, but seeks to es-
tablish an equity against the property of
the reorganized corporation on the theory
that rights of the holders of the guaranteed
bonds were improperly ignored.
[Bid. Note.— for otber cuea, see Oourti, CenU
Drf. I «)i.]
[No. 00S.1
APPEAL from the District Court o( tha
United States for the Southern Diatrict
of New York to review a decree dismissing,
for lack of diversitj of citizenship, & suit
by the members of a bondholders' committee
to enforce a deficiency judgment entered
against the guarantor of the bondi. Af-
firmed,
The facts are stated in the opinion.
Mr. A. S. Gilbert for appellants.
2 Mr. Richard Rcid Rocera for appellwa.
»
■ Mr. Justice Braadela dalivered the opin-
ion of the court :
This appeal present! the aingle question
whether the district court erred in dismies-
fug the bill for want of jurisdiction, on the
ground that the controversy involved was
not one between citizens of difi'erent states.
The question was duly certified la conform-
ity to S 23S of the Judicial Code [36 SUt.
at L. 1157. chap. 231, Comp. Stat. 1916, g
1216]. The facta are these:
The Twenty-eighth ft Twenty-ninth Street
Crosstown Railroad Company, of New
York city, issued, on October 1, 1890, bonds
to the amount of 9],6D0,O00, and secured
them by a mortgag* of Ita property to tk*
Central Trust Company. The Metropolitan
Street Railway Company, having previously
leased the Cross town Railroad, delivered
with the mortgage stamped on each of the
bonds, a guaranty to the Trust Company in
the following tenns:
"For Value Received, the Metropolitaa
Street Railway Company hereby guarantee*
to the trustee of the within-mentioned mort-
gage, for the beneSt of the holders thereof,
punctual payment of the prineipal of the
within bond and the interest thereon at the
time and in the manner therein specified and
according to the tenor of the several coupona
belonging thereto."
In September, 1B07, tha Metropolitaa
Company passed into the hands of receiver!
appointed by the circuit {now district)
court of the United States for the aouthern
district of New York. Soon thereafter de-
fault was made in the payment of intereat
on the Crosstown bonds. The customary
bondholders' committee wna formed, and
1,373 of the 1,600 bonds outstanding were
deposited with it. At ita request the Trust
Company declared the bonda due and
brought suit in tiie supreme court of New
York to forecloae the mortgage. The court
by special order granted an application of
the Trust Company for pomiseion to li-^
quidate, in tha foreclosure auit, its claim*
against* tha Metropolitan Company on the*
guaranty. For that purpose the Metro-
politan Company waa joined as defendant;
and a deficiency judgment for $1,745,344.21
waa entered against it on February 20, 191^
in favor of the Trust Company.
The property of the Metropolitan Com-
pany had meanwhile been administered by
receiver* appointed by the district court of
the United States for the southern district
of New York; and tiie several committees
representing its bondholders, stockholders,
and creditors had adopted a plan and agree-
ment for the reorganization of that com-
pany. Pursuant thereto ita franchlaa and
assets bad been, on January 1, 1912, trane-
ferred to a new eorporation, the New York
Railways Company; and the securitie* and
cash issued In exchange therefor were dta-
tributed among security holders, creditors,
and otherwise^ a* in the plan provided. M«
provision was made in the plan for adjust
ing the liability of the Metropolitan Compa-
ny arising out of it* guaranty of the
Crosetown bonds. The district court refused
to allow the claim on the deficiency judg-
ment to be proved in the Metropolitan
receivership, because the date as of which
claims against the property were ordered to
be proved waa January IS, ]90S, and tha
claim on the guaranty waa at that date con-
tingent merely. Consequently neither the
i< topic * KET-NUHBBR la all Kv
DIawl
:"*iftWgic
iQie.
HAMEE T. NEW YORK RAILWAYS Oth
•Ufi
eotnmittce nor tlie Tnist Comptin^ rep-
resenting the CroBBtown bondholdera u-
■ented to the plan for reorganizing the
Metropolitan Company.
In October, 1Q13, the membera of the
CroBfltown bondholder!' coininLttee, luing on
behalf of themeelveE and "sU other
Iliarlj situated bondbolderi," brought suit
In the distriet court of the United States
for the louthem district of New York
■gainat the New York Company, the Metro-
politan CoHipany, and the Central Truat
6 Companj, to enforce out of the property ot
n tho New York Company aatiafaction of the
liability of the Metropolitan ' Company
•riaing out of ita guaranty. The bill aet
forth facta to bring Ott caae within the
mle declared in Northern P. B. Co, t. Boyd,
228 U. S. 482, 57 L. ed. 031, 33 Sup. Ct. Rep.
Se4, and Kanaaa City Southern R. Co. v.
Guardian Truat Co. 240 U. S. 168, 60 L.
ed. G7B, 36 Sup. Ct. Rep. 334, and, aa reason
for the suit being brought in the name of
the bondholders, alleged the follonitig;
"That the defendant Central Trust Cora-
pany ot New York holda the aaid judgment
against the defendant Metropolitan Street
Railway Company, amounting to tli746,-
844.21, for the heneflt of and as the trustee
for the plaintiffs and the other holders of said
bonds of the Twenty-eighth and Twenty-
ninth Streets CroutoTni Railroad Company,
hereinbefore described; and that the rea-
son why this action is brought by the plain-
tilTs and why the Central Truat Company
of New York ii made a par^ defendant U
that the plaintiffs are the lawful owners and
bolders of eaid bonds in the amount herein-
before alleged, and the beneficial and equita-
ble owners of said judgment held by the de-
fendant Central Trust Company of New
York) and that the defendant Central Trust
Company of New York has refused to bring
this action after due demand by the plain-
tin's upon said defendant Central Trust
Company of New York, although the plain-
tiffs have offered proper indemnificatioo to
the said defendant Central Truat Company
«f New York, as such trustee, to institute
this suit to enforce the rights of the trustee
Utd of the bondholdera under said Judgment
knd guaranty made by said defendant
Metropolitan Street Railway Company, as
^foresaid."
Jurisdiction of the district court was
rested wholly on diversity ot citizenship,
plaintiffs being all citizens and residents of
■tatcs other than New York, and the three
defendants, corporations organized under
the laws ot that state. The Trust Company
flled an answer in substance joining in the
prajer of the bill and admitting ita allega-
tions. Tlie New York Railways Couipany,
besides answering to the merits, ftllegedi
87 S, C— 33.
* "That the interests of the plalntUTs, ani *
all other security holders, and the interests
ot said defendant Central Truat Companj
of New York, are Identical and in all r^
specta aimilar to the intereats of tlie plain-
tiffa, and all other owners or holder* ot
bonds secured by the mortgage , . . ;
that the parties to this action should ba
realigned by the court, and placed according
to their interests in the subject-matter of
this suit, and for the reasons hereinbefore
alleged, and tor divers other reasons appear-
ing on the face ot the bill upon ths trial
of this action, this defendant alleges that
this court is without jurisdiction to enter-
tain this complaint, or to give Judgment tar
the relief demanded therein."
It also appeared by atipnlHtlon that ths
holders ot a large part of the Crosatown
bonds deposited with ths eommittes wen
oitizens and residents of New York.
Plaintiffs admit that In respect to the
Crosatown Company no cause of action on
the bond vested In any one bondholdo*;
since the bondholders were bound by the
terma Of the mortgage, under wbidi all
right to sue on the bonda and to foreclose
the mortgage was In the Trust Company.
But they insist that the rights of the bond-
holders against the Metropolitan Company
on the guaranty were entirely distinct from
their rights against the Crosatown Company
on the bonds; that the guaranty vested in
the holder ot each bond a cause of action
on which ha could sua In his own namai
that the original guaranty to the Trust
Company was a naked promise to one for
the benefit of another; that the judgment
obtained by the Trust Company belongs to
the holders of the bonds; that it is in this
suit merely a "^e plaintiff," a title owner
of the judgment, who owes no duty to the
plaintiff or other bondholders with reterencs
thereto, has no interest In the result of the
suit, and need not have been made a party
thereto) and that, being a merely formal e<
parl7, should be disregarded in determining ^
the question'of jurisdiction. Before dis- *
cuaetng whether the Trust Company has an
interest, and. If so, its character and effect,
the nature of this suit Aould be considered.
1. The cause of action.
Thia Is not a suit upon ths original
guaranty. It la a suit to enforce a judg-
ment. The prayer of the bill is that the
property acquired by the New York Rail-
ways Company "be declared to be subject to
tlie lien of said judgment." The rights on
the original guaranty, whether they ba
treated, by virtue of the stamping on each
bond, as an aggregation of l,nOI) separate
causes of action, or be treated as a single
cause of action for the benefit of the 1,500
bondholder*, were merged in that judgment.
U4
a? SDFRXHl! COTTBT EBPORTEB.
lUl b true, •ven if, M eonUnded, tii«
(lUTBiit; to UiB Triut Compuiy atampcd oa
«k^ bond "for the banadt of the tiolden
&areof" be construed aa Importing « prwn-
Im of p«jment directl; to the holder, on
vMch he wu ftt liberty to tae In lua own
name. For the reeovery of the judgment
•ztinguiihed through merger tbe origiokl
MOM or cauM* of action, and tlie judg-
ment U one recorered hj the Tnut Com-
panj Ki truatee.l
£. The interett el the Tnut Company.
Whaterar majr hare been tbe litiutlon
originallj with reapect to right* of indi-
vidual bondholders on the guaranty, we have
now a single judgment held by the Truit
Company aa tnutee for the pro rata benefit
of 1,600 bondholders. The plainlJSs allege
that they hold 1,373 of these bonds, — that
ia, a fraction only of ths beneficial interest.
igit is thua clear that the minority bond-
■j holders aa wdl aa the railway companies
* defendant require for tJie •protection of
their reapective intereets that the Trust
Company be a party to the litigation; the
minority bondholdera, so that they may
ahsre ratably In ths proceeds; the railway
companiee, in order that they may, upon
paying the amount of the judgment, be dls-
diarged from the possibility of further lia-
bility. The judgment Is a unit and the
relief sought on it ia neceaaarily for the
benefit of all. Blacklock t. SmaU, 127 U.
a 66, 104, 32 L. ed. 70, 73, 8 Sup. Ct. Bep.
1006. But a suit by some bondholders does
not, by the allegation that it is in behalf
of all others similarly situated, become a
fllasB suit, binding on alt. Wabash R. Co.
T. Adeibert CoUege, £08 V. E. SS, 67, 52
L. ed. 379, 387, 28 Sup. CL Rep. 182. And
for the protection of the Trust Company
itself joinder as a party Is essential, in
order that, upon distribution of any pro-
eeeds, it may be discharged from obligations
to its beneficiaries.
To the state of facts presented here,
Greene t. Republic F. Ins. Co. 84 N. T. £72,
which la strongly relied upon by plaintifTs,
has no application. In tJiat ease the ae-
rignee of a chose in action, having recovered
a judgmoit in Mississippi, where he was
obliged (as by the common-law procedure)
to sue for his ovra use In the
New York Code require* anlt to be broof^
in the name of the real party in IntereaL
'Diers ths assignor, liAving assigned tha
cause of action, had no latereat in it when
the action was commenced in Misiissipid,
and conaequently do interest In the jndy-
ment; and the judgment record so recited,
declaring that it was "for the use and bene-
fit of Edward A. Oreene." Here there has
been no assignment either of the cause of
action or of the judgment. The pn.yer of
the complaint was that the Trust Company
"as trustee may have judgment againrt
. ■ . said Uetropolit&n Company;" and
In accordance with that prayer judgment
for the deficiency woa entered. Bo far *•
the record discloses, the deficiency judg-,
ment against the Metropolitan Company,^
^ike that against the Crosstown Company,*
and the property transferred by the mort-
gsge, is held by the Trust Company as
trustee for all the bondholders.! That
under such circumstances ths trustee Is a
necessary party to this suit is clear.
S. The afGliation o! the Trust Company.
It is clear that the interest of the Trust
Company in this controversy Ilea wholly
with the plaintifls. This is shown, among
other things, by the request in its answer
that the relief prayed for in the bill be
granted. No reason is mesigned in the biS
or in the answer of the Trust Company for
its refusal to sue; and none suggeota itself
save the willingness of an accommodating
trustee to enable its beneficiaries to present
that appearance of diversity of citicenship
essential to conducting this litigation in tha
Federal court. It la not contended that tUia
refusal to aua makes the Trust Company
an adveraary, to be eloaaed for purpoeei ot
jurisdiction with the real defendants, — as
in those cases where the refusal to sue was
part of a fraudulent participation in the
wrongdoing, and where the trustee or corpo*
ration in effect ranged Itself in opposition
to the relief sought.* The Trust Compoi^
having, as we have shown, a real interest
in the controversy, which makes it a nece«-
aory party to the suit, must be aligned aa »
party plointilT, where Its interest lies.*
1 "If there be any one principle of law
settled beyond alt question, it ia this, tliat
whensoever a cause of action, in the lan-
guage of the law, transit in rem judieatam,
and the judgment thereupon remains in full
fcHTce unreversed, the original cause of ac-
tion is merged and gone forever." United
States T. LeiBer, 11 Pet. 86, 100, 101, 8 L.
ed. 642, 647, 648. See also Mason v. Eldred,
8 Wall. 231, 18 L, ed, 783; Gaines t. Miller,
111 U. S. 3IIG, 300, 28 L. ed. 466, 4S7, 4 Sup.
CU Rep. 426.
117, 123, 22 L. ed. 828, 330; Rlchter v. J«.
rome, 123 U. S. 233, 246, 31 L. ed. 132, 137,
8 Sup. Ct. Rep. 106.
■ Venner t. Great Northern R, Co. 209 U.
B. 24, 62 L. ed. C66, 28 Sup. Ct. Rep. 3ZS{
Doctor Y. Harrington, 106 U. S. 670, 40 I.
ed, 806, 26 Sup. Ct. Rep. 355; Kelly v,
MissiBsippi River Coailog Co. 175 Fed. 482)
Groel V. United Electric Co. 132 Fed. 262.
*BIacklock v. Small, 127 U. 8. 06, 104.
32 L. ed. 70, 78, 8 Sup. Ct Rep. 1096; Hart-
A^^OOglC
1910.
61nce tlia neceRSBry realignment of the
Trust Company as party plaintiff ia fatal to
tha juriadlction of the dietrict court, it i«
^ luinecesaBTy to eonaidsr the legal effect of
I: the fact attpulated, that a large part of the
* ItondhoIderB'' repreaented by plaintiffs are
likewise citiEens and residents of New York.
4. Whether the suit is au ancillary one.
The plaintiffs, relying upon Wabash R,
Co. V. Adelbert Collide, 208 U. B. S6, 63, 62
L. ed. 379, 38a, 28 Sup. Ct. Sep. 182, at-
tempt to euEtain the jurisdiction of the
court on the ground that this suit ii ancil-
lary to the forecloaure proceedings against
the Metropolitan Company in th« district
court. But the facts In that case bear no
resemblance to those here under considera-
tion. There the rights and lien which It
tras declared the Federal court had exclu-
■Ive jurisdiction to iHcertain and enforce
were exprcBsly reserved by the decree; and
the purchaser under the decree took title
expressly subject to them. T)ie decree of
foreclosure under which sale was made of
the property of the Metropolitan Company,
which was later transferred to the New
York Company, contained, so far as appears
from the record, no reservation whatsoever
eonceruing liens or aimilar rights. And
there is in the answer of the New York
company the uncontroverted statement that
the properties subject to the foreclosure
"hrere sold to the purchasers and to the New
York Kailways Company, free and clear of
Any lien, claims, or interest In any part;
outstanding, excspt th« Interests" of thoM
■xpressly provided for in the plan of r»-
organization ; and that the proceedings
resulting ]r the deflciency judgment against
the Metropolitan Company here sued on "did
not constitute a claim against, or a lien
on, or an interest in, any of the property
rights or estate of the Metropolitan Street
Bailway Company." Furthermore, the bill
la the instant case does not purport to be
ancillary to the Metropolitui Company fore-
ctoaura proceedings. Plaintiffs here aedc
merely to establish an equity againat the
property of the New York Company, on the
theory that the right* of the Crosstown
bondholders liave been improperly ignored.
They set up a wholly independent cause of
Decree afflrmed.
LEmOH TAUJiY B. CO. t. BARLOW. Blr
OHO. B.UO
tEHIGH VALLEY RAILHOAD COM-
PANY, Plff. in Err,
•r Twp. T. Eernochan, 103 U. S. G6S, 26 L.
ed. 411; FaciSc R. Co. t. Ketchum, 101 U. S.
ess, 25 L. ed. 032; Allen-West Commission
Co. V. Brasbear, 17B Fed. 110; Sbipp v. Wil-
liams, 10 C. C. A. 247, 22 U. S. App. 360,
<2Fed.4.
JAMES H. BARLOW.
A member of a switching craw aosisi-
ing in placing on an unloading trestle In
the railway company's yards coal cars be-
longing to such company and loaded with
supply coal for it, whidi, with their con-
tents, had passed over its line from a point
outside the state, and had remained in the
yards upon sidings and switchings for sev-
eral days before removal to the trestle, was
not then engaged in interstate commerce,
within the meaning of the Federal Employ^
ers' liability Act of April 22, 1608 (3S
SUt. at I^ 65, chap. I4S, Comp. Stat. lOlS,
If 8657-8035), since the interstate movement
of the cars bad terminated tmfore tbey left
the aidingB.
[Ed. Note.— For other dsflnitlanB, ••* Words
aod Fbruei, First and Bsoond Serlas, 1: '
Commarce.l
[No. 104.]
JN BRROR to the Supreme Court of tii*
State of New York In and for the Coun-
ty of Cortland to review a Judgment entered
pursuant to a mandate from the Court of
Appeals of that state, which had afflrmed
a. Judgment of the Appellate Division of the
Supreme Court for the Third Department,
affirming a judgment of a trial term of such
Supreme Court In favor of plaintiff in an
action under the Federal E^nployers' Liabil-
ity Act. Reversed and remanded for fur-
ther proceedings.
See same case below, la appellate divi-
sion, 168 App. Div. 708, 143 N. Y. Supp.
1063; in court of appeals, 214 N. Y. 118,
107 N. E. 814.
The facta are stated in the opinion.
Messrs. Peter F. afcAttlater and P. Ol
McCleary for plainUff in error.
Mr. ClajUta B. Inuk for defendant ia
Mr. JnsiUea HcReyaolda delivered the
opinion of the court:
Basing bis claim upon the Federal Em-
ployers' Liability Act, defendant in error
sought damages for personal Injuries, ^a
New York court of appeals affirmed a judg.
ment In his favor (214 N. Y. lie, lOT N.
E, 814), and the question now presented it
whether there is evidence tending to show
tliat he was injured while engaging In in-
terstate commerce. The accident occurred
July 27, 1012, when, as member of a switdt-
tsAIadasa i
tl SDPBEUE COUBT REFOSrEK.
Oct. Tebm;
lug crew, lie waa uabtbig In placing three
^ean contaiiniiig supply ooal for plaintiff in
Sarror on an unlooditig trestle within ita
• jards at Cortland, New York. Thete'eart
belonged to it, and with their contents had
passed over its Una tram Sajre, PennsjI-
vauia. After being received in the Cort-
land Tarda — one July 3 and two July 10 —
the; remained there upon sidinga and
■witches until removed to the trestle on the
27th.
We think their interatate movement ter-
minated before the cars left the sidings,
and that while ronoving them the switching
erew wae not employed in interstate com-
merce. The essential facts in Chicago, B.
4 Q. R. Co. V. Harrington, 2<1 U. a 177,
«a L. ed. 941, 3S Sup. Ct. Rep. 617, 11
H. C. C. A. 99E, did not materially differ
from those now preaented. There we sus-
tained a recovery by an employee, holding
he was not engaged in interstate commerce;
and that decision is in cooflict with the con-
cinsion of the Court of Appeals. The judg-
ment under review must be reversed and
the cause remanded for further proceedings
not inconsistent with this opinion.
Reversed.
(Ml U. 8, U4)
D. B. SMITH and Gertrude W. Smith, Plffa.
in Err.,
THIRD NATIONAL EXCHANGE BANK
OF SANDUSKY, OHIO, and F. P. Zol-
linger.
Public Landb «s>19— TTni^wrci. Orcu-
PANGT— BOKJk. E^E OLAIK on COLOB OP
Title.
The further occupancy of a tract of
public land within the limits of the original
survey of a Mexican land grant by those in
posaession under color of Utie, and in good
faith, or by their vendees, after each grant
had been finally confirmed by the court of
private land claims, with boundaries which
exclude the tract in questiou, was not ren-
dered unlawful by the provision of the Act
of February 25, IS85 [23 Stat at L. S21,
chap. 149, Comp. Stat ISIS, g 4997), for-
blddinf^ the inclosure of, or the assertion
of a right to the exclusive use and occu-
pancy of, any part of the public lands with-
out claim or color lA title, made or acquired
In good faith, or an asserted right thereto
by or under claim made in good faith with
a view to entry at the proper land office.
[BM. Note.— For otber cwae, ss« Public l«nda,
Crat. Dla. II It. H.l
[No. 214.]
N ERROR to the Supreme Court of the
. State of New Uexico to review a judg-
ment which, on B second appeal, afBrmed ft
judgment of the District Court of DoDa Au
Counfy, in that state. In favor of plaintiffs
in an action upon certain promissory not«a,
and for the foreclosure of a mortgage se-
curing their payment. Affirmed.
See some ease below, 20 N. U. 204, IM
Pac. 612.
for plaintiffs in error.
Messrs. W. H. Winter, A. Seymour Thur-
mond, J. H. Faxton, and K. L. Young for
defendants in error. ^
Mr. Justice HoRernolds delivered tha*
opinion of the court:
Defendants in error brought suit in the
district court, DoOa Ana county, New Mex-
ico, seeking judgment against plaintiff i>
error Smith upon his three notes for forty-
live hundred dollars (C4,500) each, and also
foreclosure of the mortgage upon lands in
that county, given to secure them. Becov.
ery was resisted upon the ground that al-
though Smith was in actual posBcssion of
the lands under deed from Reinhart, they
belonged to the United States and were un-
lawfully In the vendor's poBsession when ao
eonv^ed without bona fide claim or colcHC
of title, contrary to the Act of Congreoa
approved Februarr £S, 18B3 (23 Stat, at U
321, chap. 149, Gomp. SUt. 1910, 9 4997) |
and that the notes were given in part pay*
ment therefor. The State supreme court
affirmed a judgment In the bank's favor.
Quotations from ita statement will suffic*
to indicate the essential facta (20 N. M.
2Q4, 148 Pac. 512).
"In ISSl the government of Mexico grant-
ed certain lands now embraced within the
limits of Dotia Ana county, this state, to
the Colony of Refngio. The grant was simi-
lar to many others found in this state. ^
Settlements were made upon it by many^
people, and individuat*allotments were made*
from time to time by the commieeioners.
"The territorial legislature, by the Act
of March 7th, 1864, constituted the owners
of lands within the limits of the grant »
body corporate and politic under the name
and style of the Grant of the Colony of
Refugio, under which they were authorised
by said act to sue and be sued and have per-
"Many years ago the lands involved Ik
this litigation, embracing some 400 acrei>
were allotted to ten individuals, who subse-
quently, by separate deeds of conveyanet^
transferred the same to Leon Alvarez, prob-
ably some time in the SO'a, but the date im
wholly immaterial. From that time to 190l>
various deeds were ei:ecuted to diverse par-
ties, all of whom had poesession and enl-
■■ SOS urn* topic A KET-NUMBBR In all KeT-Nnmbersd D
"tWHgic
191S.
SMITH T. THIRD NAT. EXCH. BASK,
SIT
tivated And improred the lands. Something
like aix or Mven thousand dollan, possiblj
mon, hftva been expended In improreinenti
on the Und Id eonatructing irrigation
ditches. In lOOQ W. H. Reinhart claimed
to be the owner of the lands, under deeds
of conveyance, and was in poaseseion of the
•ame. In that year he conveyed the ujne
to D. B. Smith, the appellant here, reeeiv-
Ing perhaps one half of the purchase money
In cash, and to secure the balance took
Smith's promissory notes, secured by a
mortgage on the real estate. Tlie notes ag-
gregated $13,500. It is not disputed that
Beinbart was the owner of said lands if
the original allottees were invested witli
the legal title to the same.
"Some time prior to 1803, the grant was
mrveyed by Elkins k Marmon, and the
lands In queation here were within the
limits of that survey. In 1S93, the commie-
■loners of the grant, acting under the power
and authority conferred by the Act of March
7, 1S84, instituted proceedings in the Unit-
ed States court of private land claims to
^ have the title of said grant conSrmed and
<t aettled. Leon Alvarez was one of the eom-
• mieaioners of the grant'at that time and
acting as such. The titla of the grant was
eonlirmed and a surrey was ordered to de-
termine what lands were embraced within
the limits of the same. This surrey waa
made by the surveyor general of New Mex-
ico and reported to the court, and the title
to the lands so embraced within the limits
of such survey was conflrmed in the Colony
of Befugio. This survey, so made as afore-
taid, embraced a smaller tract than did the
Elkios & Marmon survey, and the ianda in
question here, together with the other lends,
was without the limits of the survey made
under tha direction and by authority of the
court of private land claims. The judgment
of the court of private land claims estab-
lishing the boundaries and conlirming tlie
title to the lands within the limits of such
surrey, so made by the surveyor general of
New Mexico, woa entered in the year 1003,
and from which no appeal was taken.
"The parties owning land without the
limits of the grant ai confirmed, but within
the Elkins & Marmon survey, continued in
posaesslon thereof and resided thereon with
their families, and dealt with said lands aa
though they hod been invested With the
1^«1 tiUe to the same. No action was ever
taken hy the United States, so far as the
record discloses, to dispossess them, al-
though the legal title to said lands was In
the United SUtes. In 1909, when the deed
to Smith waa executed by Beinhart, a bill
was pending before Congreea to validate the
titles of the bona fide elaimants to said
lands, so found to be without the llmitt <l
the confirmed survey."
"Said lends were for many years, before
and after the Mexican cession to the United
States, in good faith considered to be a part
of the Befugio Colony grant, a Mexican com-
munity grant, and were so held in good
faith, by the owners of the aaid grant; and
that the commiasiouera of the said gran^gg
In good faith, allotted and conveyed the^
said lands to certain members of said'eom-*
munity who settled on the said grant; and
that the titles and claims oE tha allottees
thereto were passed and deraigned by a
chain of sufficient mesne conveyance to the
said W. H. Beinhart; and that said W. H.
Beinhart and his predecesaors in title and
claim held, occupied, and possessed the said
lands for more than fifteen years, under and
by virtue of the conveyances from the com-
missioners of the Befugio Colony Grant and
the said mesne conveyances; and that the
said defendant D. B. Smith and his assigns
now hold and possess and are cultivating
the said lands under and by virtue of the
said conveyances from the eommiesioncra of
the Befugio Colony Qrant and the said
mesne eonvayance^ and the aaid convey-
ance from the said W. H. Beinhart to
defendant D. B. Smith, and subsequent con-
veyances from D. B. Smith to his said aa-
signs."
"The plaintiffs have aueh deed of convey-
ance from the Befugio Colony Grant own-
ere and mesne chain of conveyances down
to W. E. Beinhart and D. B. Smith and
wife, aa they plead in their reply, and such
as defendants plead that they hold under.
"During the examination of a witness by
plaintiff, Dioniclo Alvarez, counsel for ds-
fendanta made the following admisaion:
" It is admitted by the defendants, for
the purpose of shortening the testimony,
that the parties mentioned In the chain ut
tranafers from the Befugio Colony down to
the date of tlie rendition of the decree of
the court of private land claims in evidence
were holders under the chain of title men-
tioned, in good faith, under color of title^
and in good faith.' "
SecUon 1, Act of Congress February 83,
1S85, followa:
"Be it enacted by the Senate and House
of Representatives of the United States of
America in Congress assembled, That all
incloaurea of any public lands in any state
or territory of tlie United States, hereto-^
fore or to be hereafter made, erected, or con-J^
structed by any person, party,*aB9ociBtlon,»
or oorporation, to any of wiileh land in-
cluded within the inclosure the person, par-
ty, association, or corporation making or
controlling the Inclosure had no claim or
,A_.OOglC
SIS
97 SUFRBHE COURT BHPORTER.
Oot. Tom,
color of title m^e or acquired in good faJtb,
or &n ABaerUd right thersto by or under
claim, made In good faith with a view to
entiy thereof at tbe proper land office un-
der the general laws of the United States
at the time an; such incloBure was or shall
be made, are hereby declared to be unlaw-
ful, and tbe maintenance, erection, conBtrue-
tion, or COTitrol of any such incloinre U
hereby forbidden and prohibited; and the
assertion <d a right to the exclusive use
and occupancy of any part of the public
lands ol the United States in any state or
any of the territories of the United States,
without eialm, color of title, or asserted
right as above specifled as to inelosures, is
likewise declared unlawful, and hereby pro-
hibited."
Section 4 of the same act malies yialation
of any provision thereof a misdemeanor pun-
ishable by fine and imprisonment.
Hie supreme court declared: "Upon this
appeal, the only question which requires
consideration is whether the evidence shows
that Reinhart had 'no claim or color of
title made or acquired in good faith' to tbc
land in question at tbe time he conveyed
the same. If he did not, the judgment must
be reversed; on the otlier hand, if he had
color of title to the land, made or acquired
In good faith, the judgment entered was
proper and must be affirmed. , . . The
deed from Potter to Relnhart constituted
color of title, so that the only question of
any practical importance for determination
la whether Reinhart's title was acquired
and held In good faith, within the meaning
of the act of Congress." And relying upon
Cameron v. United States, 148 U. S. 301,
306, 37 L. ed. 4S9, 460, 13 Sup. Ct. Rep.
G96, and Searl t. School Dist. 133 U. S.
GG3, 33 L. ed. T40, 10 Sup. Ct. Rep. 874,
It held that although Reinhart waa fully
^ cognizant of all tlie facta, be, nevertheless,
S had a claim or oolor of title to tbe lands,
■ made or acquired 'in good faith within the
true Intendment of the Act of 1S85. With
this conclusion we agree.
In Cameron t. United States, supra, we
nld: 'The act of Congress [approved Feb-
ruary 26, 1S8G] which forms the basis of
this proceeding was passed in Tiew of a
practice which had become common In tbe
western territories, of Inclosing large areas
of land! of the United Statei by associa-
tions of cattle raisera, who were mere tres-
passers, without shadow of title to such
lands, and surrounding them by barbed wire
fenoes, by which persons deairing to become
•ettlera upon such land* were drlvoi or
frightened away. In some cases by threats
or violence. The law was, however, never
intended to operate upon persons who had
Mcen pnnnrnstnn under a bona flda claim or
color of title; nor waa It Intended that. In
a proceeding to abate a fence erected in good
faith, the legal validity of the defendant'!
title to the land should be pnt in issue. It
is a sufficient defease to auch a proceeding
to show that the lands inclosed were not
public lands of the United States, or that
defendant had claim or color of title, made
or acquired in good faith, or an asserted
right thereto, by or under claim made in
good faith, with a view to entry thereof at
the proper land office under the general laws
of the United States. As the question
whether the lands inclosed by the defend-
ant in this case were public lands of the
United States depends upon the question
whether he had claim or color of title to
them, the two questions may be properly
considered together."
Without doubt Reinhart and his predece^
Bors were upon the lends for more than
fifteen years; and It is admitted that, prior
to entry of the decree of tbe court of private
land claims in 1903, their occupancy was
under color of UUe and in good faith. We
cannot conclude that further occupancy by
those then in poaseasion under bona Ode
claims, or their vendees, waa rendered un- ^
lawful — oriminal indeed — t>y the Act of *
1885. They were not mere'naked treepassers •
dishonestly seeking to appropriate public
property, and they did not belong to that
class of ofTendera intended to be hit by the
act. Their claim deserved consideration, u
plainly appears from the circumetaucea
aljova narrated. This la further ahown by
"An Act to Quiet Title to Certain Land*
in DoOa Ana County, New Mexico," ap-
proved February 3, 1911 (33 SUt. at I*.
8SS, chap. 35), through which Congreaa
granted them the right to make entriea of
and receive patents to lands in their poe-
sesslon, and empowered the General I^nd
Office to asdst them, at public expense in
msldng proofs necessary to that and.
(MV. 8.UD
MISSOURI PACIFIC RAILWAY COM-
PANY, Plff. In Err,
MoOREW COAL OOMPAST.
OanaiEBg «=3l2(3)— CIoikititutiomal Law
«:>242, 298(2)— Dm Pbocebs or Law—
BquAL PEOTECnoi* or the Laws— Fob-
bidding TBK OHABQiira or Mon mw
Shobtcb thah vob Lohom Innanast
Baitia.
1. Problbiting a railway company from
charging more for shorter than for Imager
intrastate hauls without rtoard to diree-
tion, circum^ancea, or eondlnon, and giv-
ing a Bhipper an absolute right to reoovsr
any overchai^ paid by him if tbia inbibl-
^sToi other cues sea is
• topic A KET-MCHBBR la aU K*T-Nambar*d Dl
"rt*,W^ic
lUSGOCBI P. R. CO. T. IfoORBW COAL Oa
no
ttos i* dliobfljed, m U done bj He. Const.
1876, »Tt. 12, I K, M ematnied b^ Uia
htghcat itat* eourt, doea not, in the ftbHnca
«f ipMi*! eonbvUlng oireniiutuioM, amoant
to m daaUt of due proeeM ol Iftw, or tho
•qml proteotion ol the lava.
rSd. Nata.-4or Othsr cmaM, mi Carrlan, OanL
Dig. II I. U-IO: CouUtuCKiiuI Ija«, Cant Die
H«n. tR.!
OoHMXiCK ^=>M — State Ksgolatioh —
PBOHiBrnNo Chaboihs Hobs i«b Shosi-
IK THAN FOB LOKQXB IHTBASTATK HAUIA
2.' Uneonatifutional IntorferBiice with
fait«rBtata eomtnerce doea not neeeaaaril; r«-
anlt from the Application to An Interstate
carrier of the pToviaiona of Mo. Conat. 1876,
Art. 12, I 12, under which, &• constraed hj
tJie hlghtat etata court, rnilwA; companiea
Are prohibited from chArging more for
ahorter than for longer intrAatAto hAula,
And shippera given an Absolute right to re-
cover any overchurgs paid bj them. If thlj
Inhibition is disobeyed.
(Bd. Note^-ror oUmt earn,
Ceat Die. ii M, B>.)
[Ko. 222.]
IN BKBOR to the Supreme Court of the
State of Uiaflouri to review a Judgment
which afflrrned a judgment of the Circuit
Court of Lafayette County, in that atate,
In favor of plaintiff in An aotioD by a
■hip per to recover alleged freight <
chargea. AfRrmed.
See aame caae below, — Ho. — , 178 8.
W. 1178.
He facta are atated in the opinion.
Ueaara. James F. Green And Edward J.
White for plaintiff In error.
Meiars, Edwin A. KrAuthotf, AlesAnder
Qravea, William 8. UeClintock, Arthur I^
Quant, and Maurice McNeill for defendAnt
" *Mr. Justtea HoRcynolds delivered the
•pinion of the court:
Defendant in error flied a pstition eon-
tidnlng fort7-aeven eounta in the Lafayette
oireult court, aeeking to recover what it
paid in ezcesa of alleged lawful freight
rates npon as many ahipments of coal from
Hyrlek, Hiaaouri, to other points In that
state. l%e flret count followa. It is iden-
tical In aubetance with all others except aa
to dates, amount of coal shipped, charge*
paid, destination, and comparative rates.
"Plaintiff avera that on April, IBOS, It
was and still la a coal mining company tn-
eorporated under the law of the state of
n UUsourl.
S •^UintifT, for flrst esuse of action,
■ ATcrs that on October,* I S79, the defendant
waa and has been ever since a railroad
poratton duly organized under the law of
■Aid atate and a eommon carrier for Ura
of freight and pasaengera between its atA-
tlona, hereinafter named. In aaid atAte,
"That within Ave years last past and on
the dates hereinafter named plaintiff pro-
duced and sold bitumlnona eoal from its
omi mines near Myrlefc, one of defendanVa
atations In aaid eounly, and that on the ta-
rloua dAtes nAmed in exhibit No. 1, and In
the ears therein described by number and
Initial, It ahlpped by defendant'a road from
said Hyrlok in the aggregate 867,000
ponnds of Its ssid coal In carload lota to the
consignee named in aaid exhibit at Btras'
burg, Hiaaouri, Another station on defend-
"Flaintiff AVon that for the aaid CAr-
risge of the said eoal defendAnt flzed,
charged, and demanded and received of the
plaintiff BO cents per ton. An illegal freight
rate, being 30 cents per ton more than de-
fendant was by law entitled to fls, demand,
charge, and receive, In this; that during
aU said ttmea and dates herein named de-
fendant had fixed, charged, demanded, and
received far the carriage for the aame class
of coal over its said line and over another
part of aaid road from its station of Lib-
eral, Missouri, and to another of Its said
stations, viz., Oranby, In said state, a dis-
tance of 77.14 miles, 60 cents per ton by
the carload, while the distance from said
Myrick to said Strasburg was only 61.05
milea, for which aaid rate of SO cents per
ton for said carriage fixed, charged, demand-
ed, and received of plaintiff aa aforesaid;
and the same waa Illegal and exceeded the
amount the defendant was entitled to fix,
charge, demand, and receive for said ahip-
ments by the sum of $130.06.
"And the plaintiff avera that It is dam-
aged and aggrieved by reason of aaid III^aI
freight charge In the sum of 1130.05;
wherefore it prays Judgment for the aame
and for damages not exceeding (1,000, And
for all other and general relief, according to
the statutes In such case made and provld-j
ed." 8
'The answer to count one, — identical in
effect with answers to all others, — formal
and some presently unimportant parts be-
ing omitted, follows:
"Comes now the defendant and for answer
to the first count of plaintiff's petition
states that tiia same Is founded upon the
Session Iawb of Miaaourl 1872, page 00, now
jg 31 7S and 3211 of the Revised SUtutea of
Missouri 1600, and g 12 of article 12 of
the Constitution of Missouri 1875, and that
said sections are nnll and void and of no
legal force and effect for the following rea-
"(a) Becauae said SS 3173 and 3211 of
the Bevlaed Statutes of Missouri IBOO. wlmO [ C
II topic & XaT-NnUBER In all K«r-
DlsMta t Indexes
•20
87 SUFBEME COURT KBFOBTXB.
Oct. TtBii, '
enacted bj the It^slaturo, were paued in
Tlolation of § 32 of article 4 of the Concti-
tution of Missouri 18S5, in this: . . .
"(b) Because anid §S 3173 and 3211 are
repugnant to and in violation of % U at
article 12 of the Constitution of Uiasouri
187S, in this: . . .
"(e] Because said §t 3173 and 3211, Rb-
Tised Statutes of Missouri 1009, when re-
enacted by the legislature In 1S70, weie not
legally re-enacted, hut were enacted in viola-
tion of g 28 of article 4 of the Constitution
ol Missouri 1676, in tbis: . . .
"(d) Because aaid §S 31T3 and 3211 of
the Revised SUtutes of Missouri 1009 were
repealed hj an act of the l^isiature passed
in 1887, entitled, 'An Act to Regulate Rail-
road Corporations,' passed at the extra
aession of 1887, same being found in the
Session Laws of 1887 at page 15, now §;
S185 and 3103 of the Rerised SUtutea 1000.
"For further answer to said count, the
driendant taya that g 12 of article 12 of
the Constitution of Missouri 1676, and S9
3173 and 3211 and SS 31BG end 31D3 of the
Revised Statutes of Missouri 1000, are in
„ Tlolation of S 1 of article 14 of the Amend-
^ mente to the Constitution of the United
• States in this: that said* sections of the
Constitution of Missouri and of the Revised
Statutes of Missonri deprive defendant of
its property without due process of law
and deny to it the equ&I protection of the
"... Sections 3173 and 3211 of the
Revised Btatutes of Missouri 1000 are re-
pugnant to and in violation of article 6 of
the Amendments to the Constitution of
the United States in this: That ssid sec-
tions deprive the defendant of its property
without due process of law.
"... Sections 3173 and 3211 and S%
3186 and 3193 of the Revised Statutes of
Missouri 1900, and 3 12 of article 12 of
the Constitution of Missouri 1876, are in
conflict with § S of article 1 of the Con
stitution of tlie United States and the
varioiiB laws paased by Congress thereunder
In this: that the said defendant is engaged
in Interstate commerce and owns and op-
erates various linea of railroad as a part
of its system which run into other states
than !^Iissou^i, and into the states of
Kansas, Colorado, Nebraska, Oklahoma,
Illinois. Arkansas, and Louisiana, and that
the train in which the plaintiflTs property
described in said count was being trans-
ported waa at the time engaged In inter-
state commerce and contained carload lots
and ehipments of merchandise consigned
and being carried from points without the
atate of Missouri to points within this state,
and from points within this state to points
without tlie same, and from points without
tbia state across the state of Wssouri and
to points in other states, and that, by reason
of the premises, this stats is without jnri*-
diction to adopt and pass the sections named
and to enforce the provlsiona of the same
against thla defendant while ao engaged la
interstate commerce.
"... Sections 3173 and 3211 and 9|
3186 and 3193 of the Revised Statute* of
Missouri 1009, and S 12 of article 12 ofe
the Constitution of Missouri 1876, are in 3
conflict with J 8 of article 1 of the'Con-*
stitution of the United States and the va-
rious law* passed by Congress tiiereunder
in this: that the defendant's railroad ia an
interstate road and ita line* extend over
and through the states of Missouri, Kansaa,
Colorado, Nebraska, Illinois, Oklahoma,
Arkansas, and Louisiana, and that it is en-
gaged in interstate eommerce over its said
lines through all of said statea, and operate*
trains over the aame in transporting freight
and passengers through said states; that
said section of the Constitution of Missouri
and sections of the Revised Statutes seek
to compel the defendant arbitraTily to fix
it* rates in this sUte and in all' of said
states, and in compsrison with ratea ex-
isting in all such states, without regard to
the laws passed by Congress regulating
interstate oommerce.
"... Defendant denies each and
every allegation therein contained. . . ."
Upon motion, the trial court struek from
the answer "all alleged defenses pleaded to
each of the counts in the petition except
the traverses." No evidence was offered ex-
cept the stipulation quoted below;
"It is hereby stipulated between the par-
ties that the defendant's stations, the rates
charged by the defendant, including those
paid by the plaintiff, the amount of coal
transported, and the distance set oat in
the several counts of the petition, are cor-
rectly sUted therein. It is turner stipu-
lated that such coal was delivered by the
plaintiff to the defendant for shipment in
the usual and ordinary way without any
direction or request by plaintiff aa to what
particular traine the same was to be trans-
ported la, and that the defendant received
and transported the same in the usual and
ordinary course of business, on the usual
trains passing over Its road. It Is further
agreed that the trains In which the defend-
ant hauled said cars of coal contained
other cars and shipments consigned fnmi
points within this atate to points wltlioutj-
the same, from points without the same ton
points within this state, end from'points
without this state through this state and te
points in other states."
A jury being waived, the court rendered
judgment upon each count for alleged over-
,A_.OOglC
isie.
MISSOUKI p. B. 00. T. UoOREW COAL CO.
621
charge, without penal t7,— on the flrit count
9130.0S, total upon bII, $16^04.19; and this
■etion the itats Baprema court afBrmcd.
— Mo.—, 178 S. W. 1170.
Tha Inabtence here U that, as construed
and applied, 9 12, article 12, Miaiouri Con-
stitution 1876, and also SS 3173 and 3211,
Hevised Statute* 1909, deprive plaintiff in
error of property without due proceaa of
law and deny it equal protection, contrary
to the Kth Amendment, and aleo conflict
with S S, article 1, Federal Constitution.
Sections 3173 and 3211 originated in the
Act of 1872. The flrat prorides that no rail-
road corporation organized or doing bua-
Inea* within the state shall "charge or
collect for the traniportation of goods,
merchandts* or property over any portion
of Its road a greater amount aa toll or com-
penaation than shall be charged or collected
fey it for the transportation of similar
quantities of the same class of goods, mer-
chandise or property over any other por-
tion of its road of equal distance." And
the second prescribes a penalty for violat-
ing the first, not exceeding (1,000, with
costs, etc, to be recovered by aggrieved
party.
Tha supreme conrt declared: "^ach count
of the petition is In legal effect identical
with the counts of the petition in McGrew
T. MUsouri P. E. Co. 253 Mo. 23, 1156 S.
W. 1033, and with thoae in the cases be-
tween the name parties, cited in the opinion
In that case, differing only in amounts,
dates, and destination of shipments, and in
distances used for purposes of comparison,
, . . The assignmcntH of error in this
case, in legal effect, and the points and au-
B fhoritiea, verbatim, are identical with those
*ln that case. The authorities cited are ez-
* actly the same." And upon the'opinion in
the cause referred to. It affirmed the trial
In McGrew t. Miaaoiiri P. H. Co. supra,
tlie court followed McGrew t. Missouri P.
R. Co. 230 Mo. 406, 132 S. W. 107e, where
(the issues being the same as thoae here
presented), after considering the whale sub-
ject, it was held that plaintiff's judgment
could be sustained under J 12, article 12,
Constitution of Missouri 1S7G, without re-
liance upon any statute. The court said:
(230 Mo. 610.) "The petition was
framed upon the Act of 1S72, but in view
of the fact that the trial court denied the
penalties asked, and allowed only the differ-
ence between the higher rates charged
plaintiff and the lower rates charged by
defendant for the longer distancca, the judg-
ment could be sustained upon % 12 of ar-
ticle 12 of the Constitution, without the
aid of the Act of 1S72, provided that said
aaetion of the Constitution is self -en forcing.
Because If said section Is self-enfordng, that
is to aay. If It, without the aid of any
statutory enactment, makes it unlawful for
a railroad company to charge more for a
shorter haul than a longer one of the same
clsss of property in any direction, the same
or not, and under any or all circumstances
and conditions, then clearly the measure
of damages for doing the unlawful thing,
in the absence of any statute upon tha
subject, is the amount of the excess charged
for the shorter distance over that charged
for the longer distance."
(S61.) "Section 12 of article 12 of our
Constitution clearly establishes an uncoo'
ditional short-haul rule, without regard to
direction or to circumstances and condi-
tions. Said section declares that it shall ba
unlawful for any railroad company to
charge for the transportation of freight or
passengers a greater amount for a less dls*
tance than 'the amount charged for any
greater distance.' That declaration eatal)-
lishes a rule, and creates a right in cvery^
passenger and shipper to a compliance witl),S
and an *obedience to, its terms. . . .*
Said section has the same force and effect
as if it read: It shall not be lawful in this
state for any railroad company to charge,
under penalties which the general assembly
shall prescribe, for freight or passengers,
a greater amount for the transportation of
the same for a less distance than the
amount charged for any greater dii^tance.'
Hnd said section read that way, its effect
as an operative law would have been too
clear for controversy. To my nind it Is
equally clear under the present reading."
In view of this ruling, it Is unnecessary
for us to consider cither terms, validity, or
possible application of sections of Revised
Statutes mentioned in the answer.
Section 12, article 12, Constitution of
Missouri, provides: "It diall not be lawful
in this state for any railway company to
charge for freight or passengers a greater
amount, for the tranaportation of the sam^
for a less distance than the amount charged
for any greater distance; and suitable laws
shall be passed by the general assembly to
enforce this provision; but excursion and
commutation tickets may be issued at spe-
cial rates." As construed and applied in
the present cause, this section prohibits th*
carrier from charging in respect of intra>
state commerce more for a shorter haul
than for a longer one over any portion of ita
line within the state, without regard to
direction, circumstance, or condition; and
if this inhibition is diaobeyed the shipper
acquires an absolute right to recover any
overcharge paid by him.
The record does not disclose when plain-
tiff in error was incorporated, or what pro-
,A_iOOglC
622
87 SUPBEMB COUBT EEPORTEB.
Oor. TniCt
Tiaioni lU charter contain*, ^erc !■ no
•uggeatioD of anythiDg therein amounting
to a contract eiempting it from legislation
eonunonlf within the police power. No
claim la made that the eoit of moving
freight over it* Uces in HiBiouri it wlth-
. out Bubstantial relation to distance; and
c no facte are alleged which indicate material
• difference* between conditions and'elrcum-
•tance* under which the haul* from minos
at UTrick were made and thoK surrounding
the longer ehipments for less charge* over
other portions of the road.
Arguments identical In principle with
those now presented to show invalidity of
the inhibition under consideration, because
of conflict with the 14th Amendment and
Interference with interstate commerce, were
eoasidered and rejected In Louisville & N.
E. Co. V. Kentucky, 163 U. 8. 603, 48 L.
•d. 29S, 22 Sup. Ct. Rep, 96, approved in
Intermountain Rate Cose* (United States
T. Atchison, T. 4 S. F. R. Co.) 234 U. S.
476, 480, S8 L. ed. 1408, 1423, 34 Sup. Ct
Rep. 9S6. And we think it must be accepted
as settled that unleia some controlling cir-
cumstance of a character not here disclosed
1* established, or a special protecting con-
tract exists, there Is nothing in the provl-
■ions of the Federal CocBtitution or laws
presentlj relied on which necessarily re-
stricts the power of a state by general rule
to prohibit railway companie* from receiv-
ing higher charges for shorter haul* than
for longer one* when both are wholly with-
in it* borders. 6uch a prohibition Is not
necessarily an arbitrary, unreasonable, or
grossly oppressive measure for preventing
discrimination* and insuring equal and just
treatment to all shipper*.
We find no error ta the judgment below,
and It la afBrmed.
<U4 D. S. IBl]
MISSOURI PACIFIC RAILWAY COM-
PANY, Plff, in Err.,
BDWARD J. UcQREW and James C. Uc-
Grew, Executora of James C. McQrew, De-
This case Is governed by the decision of
ViSBoarl Pacific Railway Company r. Ue-
Orew Coal Company, ante, p. £18.
IN ERROR to the Supreme Court of tlie
State of Hissouri to review a Judgment
which affirmed a judgment of the Circuit
Court of lAfayetta County, In that stat^
In favor of plaintiff* In an action to re-
cover allied freight overcharges. Affirmed.
See same caae balow, — Uo. — , 178 S.
W. 1178.
Ur. James P. Qntst tor plainUlT in error,
iix, Alexander Graves for defendants in
Ur. Juatico HoRrynoliIc delivered the
opinion of the court;
A stipulation of counsel for the reapectiva
parties that this cause abide the decision
in case No. 222 having bem med [244 U. S.
191, Ql L. ed. — . 37 Sup. Ct Rep. 518], the
judgment in this caae is afiirmed.
<SM v. e. 100)
MISSOURI PACIFIC RAILWAT COM-
PANY, Plff. in Err.,
MARGARET I,. TABBR, Guardian of
Harry U. Small, Qracs L. Small, and
Margaret Q. SmiiU, Minora
OotTRTB «=>394C7)— FcDznaL (^nssnon —
How Raised,
The refusal of the highest court <rf
149, Comp. Stat IVIO, H 8tt37-tHittB), i
not have been applied to dw action, is not
reviewable in the Federal Suprenu Court,
where the ^original action was based upon
a state sta'tufe, the answer did not set up
or rely upon the Federal act, the trial
court's attoitton was not called tiieretts
and the highest state court did nothing
mora than to decline to pass upon the point
because it was not presented to the trial
court, aa required by the state practice.
"" a^'^'" Mhar oss<^ see OoarU; OenL
Die. |U
[No. 780.]
IN ERROR to the Supreme Court of tlit
State of Missouri to review n judgment
which affirmed a judgment of the Circuit
Court of Jackson County, In that state, ia
favor of plaintiff In an action for death.
Dismissed for want of jurisdiction.
See same caae below, — Mo. — ^ lU 8.
W. 688.
The facts are stated In the opInioB.
Messra. Edward J. Wbite, Tbomaa
Hackney, and Hardn Iiyona for plain-
tiff in error.
Messr*. John T. Wayland, R. J. Ingf
ham, L. E. Durham, and Hale Hoota for
defendant In error.
M topic * KBT-NUUBBR ID all K«7-Humbsr*l DlSs*ta * U
Diatiz.doyV^-.OO'^IC
i itio.
■ *Ur. JnsUca McRcTiioIdB dellT«red Iha
•piuloi of tlie eoort.
ChArlu E. Small wu hilled at Eaubu
Cit7 nhile employed bj plaintiff In error u
• •witchnuui. Belying upon « etate atat-
nt^ the guardian ol his minor children
mud for damages in the Jackson coi
drcnlt court and recoTered a judgment
which the aupieroe court of Uisaouri af-
firmed. May 15, 1D16. We are asked to
reverse that action because the Federal Em-
ployers' Liability Act was not applied, but
rights and liabilities were determined ao-
eording to state laws.
Unleai swne right, privilege, or immunity
under the Federal act was duly and eape-
cially claimed, we have no jurisdiction.
Jndidal Code, % 23T [3« fiUt. at L. liee,
ehap. 231, Corap. Stat. 1010, g 1214].
Speaking for the court in Erie B. Go. t.
Purdy, 188 U. R 1<8, IH, 48 L. ed. 847,
BSO, 22 Sup. Ct. Bep. eoe, Mr. Justice Har-
lan announced the applicable rule: "Now,
where a party — drawing In queetion In this
court a state enactment u invalid under
the Conititntlon of the Unitml States, or
asserting that the final judgment of the
highest court of a state denied to him a
right or immunity under the Conititutlon
„ of the United States — did not raise such
J{ question or especially set-up or claim such
* right OT*Immunity In the trial court, this
oourt cannot review such final judgment
and hold that the state enactment was un-
constitutional, or that the right or immu-
nity so claimed bad been denied by the
highest court of the state, if that court did
nothing more than decline to pass upon
the Federal question because not raised in
the trial court, as required by the state
practice. Spies v. IlUnols, 12S U. S. 131,
ISl, 31 L, ed. 80, 91, 6 Sup. Ct. Sep. 21,
S2i Miller v. Texas, 1G3 U. S. 63E, 638,
38 L. ed. 812, 813, 14 Sup. Ct. Bep. 874;
Morrison v. Watson, 1E4 U. S. Ill, IIG,
38 L. ed. 92T, 820,. 14 Sup, Ct. Rep. B96."
The original action was baaed upon a
state statute; the answer did not set up
or rely upon the Federal act; the trial
court's attention was not called theretoj
and although urged to hold Uablllty depend-
ed upon it, the supreme eourt declined to
pass upon that point because not presented
to the trial court. This ruling seems in
entire accord with both state statutes and
ertablished practice. Mo. Bev. Stat 1900,
I 2081; St. Louis Nat. Bank r. Flanagan,
129 Ho. 178, 31 8. W. 773; Freeland v.
WiUianuon, 220 Mo. 217, US S. W. 660.
The writ must bs dismissed.
VALLEg 8. S. C». T. WAITAWA. 528
(M U. 8. w>
TAIXET STEAMSHIP COMPANY, PUT. la
JOHN J. WATTAWA, (Ko. 489.)
JOSEPH UBAZ. (No. 470.)
CovBTs ^»394(1S) — Fbitolous Fedouh.
Qlebti on—State BEouLaxion or Iktju-
STATE OOHUEBCE.
1. The contention that a steamship com-
pany engaged In interstate commerce could
not be subjected to the Ohio Workmen's
Cumpeosation Act of Ma; 31, 1911,* without
burdening such commerce, contrary to U. B.
Const, art. 1, S 6, is so lacking In merit
that it will not serve as the basis of a writ
of error from the Federal Suprnne Court
to a state court.
[Kd. NotB.— For othar cMca, M* Coarti. CmL
Dig. I lOM.]
CoiiBxa «=>3W(2)— Erbob to State Coun
— Feubbai. Question — How Baisbji.
E. The objection to the application to
a steamship company of the Ohio Work-
men's Compensation Act of May 31, 1911,
on the ground that the Federal judicial
power was extended by U. 8. Const, art 3,
g 2, to all cases of admiralty and maritime
jurisdiction, thereby rendering the general
maritime law part of the Federal laws, not
subject to alteration by state statutes, wUl
not serve as the basis of a writ of error
frcmi the Federal Supreme Court to a court
of appeals of the state of Ohio, where it
was not presented to the trial court in any
form, ana was not pointed out clearly. If at
all, by the petition in error before suoh
court of appeals, and was not definitely
mentioned in the opinion of that court,
whose powers, under the local law, only ex-
tend to a review of the trial court's judg-
. for errors appearing on the reconl.
[Nos. 4W and 470.]
Argued January 10 and 11, 1917. Decided
May 21, 1B17-
TWO WRITS ol Brrw to the Court ot
Appeals for the Ei^th District of the
State of Ohio to review judgments which
affirmed judgments of the Common Pleas
Court of Cuyahoga County, in that statat
in favor of plaintiffs in personal-injury aft-
tiona. Dismissed for want of jurisdiction.
The facts are stated In the opinion.
Messrs. Tracy H. Duncan and Frank B.
Masten for plaintiff in error.
Mr. Oeorg« H. BIclwllMrccr for dsfsat
ants in error.
'■"^oogic
97 SUPREME COUBT BBPOBTEB.
Oat. Tebii,
* 'HemoranduiQ opinion b; l£r. Justice Ho-
Itejrnolda:
Number 4SS.
Seeking damagea tinder the Uwi of Ohio,
defendant In error, Wattawa, brou^t t^Ia
Kction in the common pleas court ol Cnja-
hoga county. He alleged that, bj reaecMi
of the Steamahip Companj'B D^ligenoe, he
Buffered person b1 injuries in September,
1913, while employed by it as » deck band
OQ tbe Edwin K. Obi, then lying at San-
dusky, Obio; and that althou^ an employer
of more than Ave men, the company was
not a aubacriber or contributor to the atata
« iDsurance fund provided for by tbe Act of
fiMay 31, 1911,— the first Ohio Workmen's
' Compensation Act. lo'defenae the company
^imed that, although employing more than
Ave men, it was engaged in interstate com-
merce, and therefore was not required to
subscribe to tbe state insurance fund; de-
nied negligence; and alleged that the ac-
cident resulted wholly from the employee's
want of care; and moreover, that he had
assumed tbe risk. Upon motion the al-
legation as to assumption ol risk was
stricken out.
The court charged that as the eompany
had not accepted tbe Compensation Act, it
could not rely upon common^law defenses
based on the fellow-servant rule, assump-
tion of risk, or contributory negligence.
Judgment upon a verdict for (6,200 was
afSrmed by the court of appeals, and pe-
titions in error and for certiorari were
denied by tbe supreme court.
VTe are asked to reverse the action of tba
court of appeals upon two grounds: First,
because the company was engaged in inter-
state commerce and therefore could not be
subjected to the Compensation Act without
burdening such commerce, contrary to the
commerce clause of the Federal Constitu-
tion. Second, because article 3, g 2 of the
Constitution extended judicial power to all
cases of admiralty and maritime jurisdio-
tion, and thereby rendered the general mar-
itime law part of the Federal laws not
subject to alteration by state statutes.
The first point relied upon is entirely
without merit, and inadequate to support
our juri.idiction. In tbe absence of con-
gressional legialatioD the settled general rule
is that, without violating the commerce
clause, tbe states may legislate concerning
relative rights and duties of employers and
employees while within their borders, al-
though engaged in interstate commerce.
Ijake Shore & M. S. R. Co. ». Ohio, 173 O.
e. 285, 2i>7, 43 L. ed. 702, 708, 19 Sup. Ct.
Rep. 405; Minnesota Rate Cases (Simpson
T. ShepardI 230 U. S. 362, <oa, 67 L. ed.
1611, 1546, 48 L.RA.(N.e,) 1161, U Sup.
Ct. Rep. 729, Ann. Cas. lOlOA, IB.
The second reason for reversal now set
up was not presented to the trial court la
any form. It was not pointed out dearly, a
if at all, br <^B petition in error befor«S
Hhe court of appeals, and was not definltdy*
mentioned in the opinion of that conr^
whose powers only extend to a review of
the trial court's Judgment for errors ap-
pearing on the reeord- Section 12,247 Obio
General Code, as amended by 103 Ohio Iaws,
pp. 405, 431. The question, therefore, is not
properly before us. Mutual L. Ins. Co. T.
McGrew, 138 U. 8. 291, 808, 300, 47 L. «d.
4S0, 434, 466, S3 L.RA. 33, 23 Bnp. Ct.
Rep. 376.
The writ of error must be dismissed foe
want of jurisdietion.
Number 470.
Counsel for the Bteamsblp Company htm
admitted of record hera that this cauaa In-
volves tbe same state of facta and questions
of law as those presented in KnnilMr 449.
They were beard together and the same jud^
ent will be entered in each of them.
Dismissed.
MARIE JENSEN.
COUVRBCl: ^sSO— EHFLorEBS' LUSIUTT—
Afplicabilitt op Statdtx n> Ocbar-
QoiMo Ships— "Boar,"
1. Congreas did not eetablish a rule of
liability with respect to injuries received
by an employee on an ocean-going ship ply-
ing between ports of different states, owned
and operated by a corporation which is also
an interstate railway carrier, by enacting
the provisions of the Employers Liability
Act of April 22, 1908 (36 Stat, at L. 65,
chap; 149, Comp. Stat 1916. H 8657-88G5),
giving a right of recovery against interstate
carriers by railroad for the death or injury of
employees while engaged In interstate com-
merce, caused by the negligence of tbe car-
riers' officers, agents, or employees, or by
any defect or Insufficiency, due to its neg-
ligence, in its "cars, engines, appliances,
machinery, track, roadbed, works, boats,
wharves, or other equipment." The word
"boats" in the statute refers to vessels
which may be properly regarded aa in sub-
stance part of a railroad's ezteositHi or
equipment, as understood and applied la
common practice.
[Bd. Note.—For other dellniUoas, SM Word*
and Fhrusi, Flnt and SKoad Sarlw, Boat.]
IBIS.
SOUTHERN PACUPIC CO. T. JENSEN.
B2S
Ai)iiiBAi.TT «=>1— ExcLTTBiVENESs OF FxD- 1 Comih But 1016, | 8028), I 18, whlcb dfr-
EKAL Jurisdiction— State Iaoisi^tion .' *■ " "
AiTECTiiia Maktiiioc Law.
2. State legialatfon ohaD^iDg, moditj*
lag, or afTecting thi genenU maritime law
which contravene* the etsential purpow
pressed hy an act of Congreu, or works i
terial prejudice to the character iatlc fea-
tures of auch seneral maritime law,
interferes with the proper harmony or
formity of that law m Its international
and interstate relations, is Invalid as being
repugnant to U. S. Const, art. 3, g 2, ex-
tending the judicial power of the United
Slates to all cases of adiniraltj and mari-
time jurisdiction, U. S. Const, art. 1, 9 S,
giving Congress power to make all Uws
necessary and proper to carry into execu-
tion the powers vested in the Federal gov-
ernment, and U. S. Judicial Code, %% 24,
E66, giving th« Federal district courts ex-
clusive original cognUance of all civil
eausea of admiralty and maritime juris-
diction, saving to suitors In all cases the
right of a common-law remedy where the
common law is competent to give it.
[Bd. Note.— For other cues, sea Admiralty.
Cent. DiM- H 1-"]
Master and Sebvaiit *=>347— Exclusive-
NBBfi or Federal Jurisdiction— .State
Workmem's Gohpenbation Laws.
3. The application to an injury sus-
tained by a longalioremau while he tvas un-
loading in a New York port an ocean-going
■team ship owned by a nonreeident corpora-
tion, and plying between ports of different
states, of tlie provisions of the New York
Workmen's Compensation Act (N. Y. Laws
1613, chap. Siei Laws 1914, chaps. 41, 316),
which, in lieu of the common-law liability
enforceable by suit in cases of negligence,
imposes a liability upon employers, enforco-
kbie without judicial action, to make com-
pensation for disabling or fatal accidental
injuries to employees, without regard to
fault as a cause, graduating compensation
for disabilities according to a prescribed
■eale based upon loss of earning power, and
measuring death benefits aecordiux to the
dependency of the surviving wife, husband,
or infant children, renders the statute, to
that extent, invalid as conflicting with U.
B. Ckinst. art. 3, 9 2, eictending the judicial
power of the United States to all cases of
admiralty and maritime jurisdiction, U. S.
Const, art. 1, g S, giving Congress power
to make all laws necessary and proper to
eariy into execution the powers vested in
the Federal government, and U. S. Judicial
Code, gg 24, 25«, giving Federal district
courts exclusive judicial cognizance of all
civil C.I uses of admiralty and maritime
jurisdiction, saving to suitors in all cases
the right to a common-law remedy where
the common law is competent to give it,
being also incoiiBJstent with the policy of
Coflffress to encoursge investments in ships,
manifested by U. S. Rev. Stat. §§ 4283-42S5,
Comp. SUt, 11)10, SS 6021-8023, Act of
June 28, 1881 (23 SUt. at L. 67, eliap. 121,
dare a limitation upon the Ilabllt^ of their
[Ko. 280.1
Argued February 28, 1016. Restored to
docket for reargument November 13, IDIS.
Reargued January 31 and FebruMj 1,
1917. Decided May 21, IBIT.
late Division, Third Department, of the
State of New York, to review a Judgment^
affirmed by the Court of Appeals of that
state, approving u award of the atats
Workmen's Compeneatlon Commluion to
the dependents of a longshoreman killed on
an ooean-going steamship. Reversed and
remanded for further proceedlnge.
See same ease below in oonrt of appeals,
215 N. T. S14, L.R.A.1S1BA, 403, 109 N. E.
600, Ann. Caa. 1916B, S7S, » N. & C. A.
286.
The facts are stated In the optuion.
Messra. Nomwn B. Beeeb«F and Raf
Rood Allen for plaintiff In error.
Messrs. B. Clarence AUcen, Harold J.
Hlnman, sad Mr. Egburt E. Woodbury, At-
torney OenersI of New York, for defendant
*Mr. Justice HoReynoId« detivered th*>
opinion of the court:
Upon a claim re^larly presented, Uie
Workmen's Compensation Comroission of
New York made the fdlowing flodinge of
fact, rulings, and award, October 9, 1914:
1. "Christen Jensen, the deceased work-
man, was, on August 10, 1S14, an em-
ployee of the Southern PaciSe Company, a
corporatiOQ of the state of Kentucky, where
it has ite principal office. It also has an
of&ce at Pier 40, North river, New York
city. The Southern Pacific Company st
said time was, and still Is, a common car-
rier by railroad. It also owned and
operated a steamship. El Orients, plying bo-
tween the porta of New York and GaJvestoi^
2. "On August 16, 1914, said ateamshlpM
was berthed'for discharging and loading at*
Pier 49, North river, lying in navigable
waters of the United States.
3. "On said date Christen Jensen was
operating a small electric freight truck.
His work consisted in driving the truck in-
to the steamship El Oriente, where it was
loaded with cargo, then driving the truck
out of the vessel upon a gangway conneot-
ing the vessel with Pier 49, Nortb river.
ssPor other ci
M same topic * KEY-NUMBER lo all Kar-Numbered Dlsests * Indein
D,at,z.d-,.'^-.00'^IC
S7 8UPREHB OOUBT BSPOBTEB.
Oor. Tmg
sad thence upon tli« pier, wlian tli« Inmber
wu nnlOMled from tha tmdc. The ihip w««
Kbout 10 feet distant from the pier. At
mbont 10:16 A. tt^ tJter Jeoeen had been
doing each work for about three houre tluit
MWrning, h« atuted ont of the ship with
kle track loaded with lumber, a part of
the cargo of the iteamihip El Oriente^
irtiich w«a being transported from QalTse-
ton, Texas, to New York city. Jensen stood
on the rear of the truck, the lumber coming
about to hie ihoulder. In driTiug out of
the port in the aide of the Teasel and upon
the gangway, the truck became jammed
•gainst the guide pieces on the gangway.
JensM then reversed the direction of the
truck and proceeded at third or full speed
backward ioto the hatchway. He failed to
lower his head and his head struck the ship
at tiie top line, throwing his head forward
and causing bis ohtn to hit the lumber in
front of hiiD. TTja neck was broken and in
this manner be met his death,
t, "The business of the Bouthem Paelflo
Company In this state eonsisted at the
time of the eceident and now consiste sole-
I7 in carrying passengers and merchandise
between New York and other states. Jen-
sen's work consisted solely in moving caigo
destined to and from other states.
6. "Jensen left surriTing him Marie Jen-
sen, his widow, twenty-nine years of age,
and Howard Jensen, his son, seren years
of age, and Evelyn Jensen, hia daughter,
three years of age.
6. "Jmsen's average weekly wage was
a (19.60 per wedc.
i T. "The injury was an aecidentaJ injury
* and arose out of ^d in the course of Jen-
■en's employment by the Bouthem Facifle
Company, and his death was due to such
Ujury, The injury did not result solely
from the intoxication of the injured em-
ployee while on duty, and was not oeca-
■ioned by the wilful Intention of the in-
jured employee to bring about the injury
or death of himself or another.
"This claim comes within the meaning of
ehspter 67 of the Consolidated Laws aa
re-enacted and amended by chapter 41 of
the Laws of 1S14, and as amended by chap-
ter 316 of the I«WB of 1914.
"Award of compensation is hereby made
to Uarie Jensen, widow of the deceased, at
the rate of $5.87 weekly during her widow-
hood, with two years' compensation in one
sum in case of her marriage; to Harold
Jensen, son of the deceased, at tha rate of
$1,96 per week, and to Evelyn Jensen,
daughter of the deceased, at the rata of
$1.06 per week until the said Harold Jensen
and Evelyn Jensen respectively shall arrive
ftt the age of eighteen years, and there is
further allowed the Rnn of one hundred
($100) dollars for funeral expenses."
In due time tha Southern Pacific Com-
pany objected to tha award "upon the
grounds that the act does not apply, be-
cause the workman was ragaged in intei^
state commerce on board a vessel of ft
foreign corporation of the state of Kai<
tuoky, which was engaged solely in inter-
state commerce; that the injury was one
with respect to which Congress may eatah-
lish, and has established, a rule of liability,^
and tmder the language of g 114 1 [copiedj*
In the margin], the act has no application; •
on the ground that the act includes only
those engaged in the operation of vasseU
other thao those of other states and coun-
tries in foreign and interstate oonuneroi^
while tha work upon which the deceased
workman was engaged at the time of hia
death was part of tha operation of a vessel
of another state, engaged in interstate com-
merce, and hence does not coma within the
proriUons of the act; further, that the act
is unconstitutional, aa it constitutes a regu-
lation of and burden upon commerce among
the several states. In violation of article
1, i 8, of the Constitution of tha United
States; in that it takes property without
due process of law, in violation of the 14th
Amendment of the Constitution; in that it
denies the Southern Facifle Company the
equal protection of the laws, in violation
of tha I4th Amendment of the Constitution,
because tha act does not afford an exclu-
sive remedjr, but leaves the employer and
its veseela subject to suit in admiralty:
also that the act is nnconstituUtmal in that
it violates article 3, g 2, of the Constitu-
tion, conferring admiralty jurisdiction upon
the courts of the United States."
Without opinion, the appellate diviaioa
approved the award and the court of ap-
peals afBrmed this action (216 N. Y. 61^
LJLA.19ieA, 403, 109 N. E. 600, Ann. Cao.
Section 114. "The provisions of this
dapter shall apply to employers and em-
! Joyces engaged in Intrastate, and also in
nterstate or foreign oommerce, for whom
a rule of liability or method of compensa-
tion has been or may be established by tha
Congrasa of the United States, only to tb*
ext<^t that their mutual connection with
itrastate work may and ehall l>e clearly
separable and distinguishable from inter-
state or foreign commerce, except that sudi
employer and his employees working only in
this state may, subject to the approval and
in the manner provided by the Commission
and BO far as not forbidden by any act of
Congress, accept and become bound by the
provisions of this chapter in like manner
and with the same effect in all respects aa
provided herein for other onployera and
their employeea."
,A_iOOglC
lUI.
SOUTHERN PACIFIO 00. ▼. JXNSIN.
1918B, E7S}, holding tlwt the Workmen't
CompeoMtioQ Act applied to the employ-
ment in queitioK aad wm not obnoxioue to
tb« Federal Conatltution. It Mid: "The
•eheme of the statute U eiseiitlally and
fundamentaUj one by the creation of a
■t«te fund to insure Uie payment of a pre-
■eribed compenaation bated on earainga for
diaability or death from accidental injuriea
ri aiutaiDed bj employee* engaged in certain
SJ (numerated hauirdoui employment*. The
,* atate fond ie created from premiums'paid
by employers based on the pay roll, the
number of employees, and the hazards of
the employment. The employer has the op-
tion of insuring with sny stocli corporation
or mutual association authorited to trans-
act such business, or of famishing satis-
factory proof to the Oommission of bis own
financial ability to pay. If he does neither,
he is liable to a penalty equal to the pro
rata premiam payable to the state fond
dnring the period of his noncompliance,
and is subject to a suit for damages by the
Injured employee, or his legal repreeenta-
Utb in case of death, in which he is de-
prived of the defenses of contributary neg-
ligence, assumed risk, and n^ligenee of a
fellow servant. By insuring in the state
fund, or by himself or his insurance car-
rier paying the prescribed compensa
the employer is relieved from further lia-
bility for personal injuries or death sna.
tained by employees. Compensation is tc
be made without regard to fault as a cause
of the injury, except where it la occasioned
by the wilful intention of the Injured em-
ployee to bring about the Injury or death
ol himself or another, or reaulta solely
from his intoxication while on Anty. Oom-
pcDsation is not based on the rule of dam-
ages applied in negligence suita, but, in
addition to providing for medical, surgical,
or other attendance or treatment and fu-
neral expenses. It Is based solely on loss of
e«iraing power. Thus, the riak of accidental
injuries ocenrring with or without fault
on the part either of employee or employer
ia shared by both, and Uie burden of malc-
ing compensation is distributed over all the
(numerated hazardous employments in pro-
portion to the risks involved." See also
Walker v. Clyde 8. S. Co. 216 K. T. fiSQ,
IDS N. B. 004, Ann. Gas. 1S18B, 87.
In New York C. R. Co. v. White (de-
cited March 6tb), 243 U. 8. ISS, 61 U ed,
687, 87 Sup. Ct. Rep. 247, we held the stat-
ute valid in certain respects; end, consider-
ing what was there aald, only two of the
t* grounds relied on for reversal now demand
M special consideratton. First. Plaintiff in
error, being an interstate common 'carrier
fay railroad, la responsible tor injuriea re-
ceiTed by empl^eea whila engaged therein
under the Federal Emplcnren^ Liability Act
of April 22, ISOS (36 Stat, at L. chap. 149,
p. SG, Comp. Stat IBlfl, | WfiT), and no
state statute can impose any other or dif-
ferent liability. Second. Aa here applied,
the Workmen's Compensation Ast conflieta
with the general maritime law, which con-
stitutes an int^ral part of the Federal law
tmder art. 3, | 8, of the Conititntlon, and
to that extent is invalid.
The Southern PaciBe Company, a Ken-
tucky corporation, owns and operates a rail-
road as a common carriers also the steam-
ship EI Oriente, plying between New York
and Galveston, Texas. The claim Is that
therefore rights and liabilities of the par-
ties here must be determined in accordsnea
with the Federal Employers' Liability Aet.
But WB think that act. is not applioable In
the circumstanoea.
The First Federal Employers' Liabititr
Aet (June 11, 19M, S4 SUt. at L. 232,
ehap. 3073) extended in terma to all com-
mon carriers engaged in ijitentate or for-
eign commerce, and, because It embraced
Bubjecta not witbin the constitutional au-
thority of Congress, was declared Invalid.
Employers' liabilil^ Casea (Howard v.
Illinois C. R. Co.] 207 U. S. 4«3, 62 L. ed.
297, 2B Sup. C». Rep. 141, Jan. 0, 19DB.
The later aet ia carefully 1iinit«d and pro-
vide* that "every commim carrier by rail-
road while engaging In oommeiee between
any of the several states or terrltoriea, or
between »ny of the states and territorlsa,
or between the District of Columbia and
any of the states or territories, or betweaa
the Dlstriot of Columbia or any of tlM
state* or territoriee and any foreign natiom
or nations, shall be liable in damagea to
any person suffering injury while he is em-
ployed by such carrier in such commero*,
or, in ease of the death of such employee^
to his or her perKHial represaatatives, for
the benefit of the surviving widow or hns-n
band and children of suah employee; aad,N
if none, then of such employee's 'parenta;*
and, if non^ then of the next of Us do-
pendent upon such employee, for such in-
jury or death resulting in whole or ia
part from the negligence of any of the
offloers, agents, or employees of such car-
rier, or by reason of any defect or insuf-
HciHicy, due to its negligence^ in Ita cars,
engine*, appliances, machinery, track, road-
bed, works, boats, wharves, or other equip-
Evidently the purpose was to preacrib*
a rule ^plicable where the parties are en-
gaging In something having direct and sub-
stantial connection with railroad operations,
and not with another kind of cvriago
reoognlzed as s^arate and distinct tTO»
tranaportation on laad and no n
,A_.OOglC
•7 8DFEEME CX}UST REFORTBK,
OOT. Tnui,
ttereto. It ii annaMoabla to anppoM thAt
CoDgrei* intendtd to change long-eatkb-
IlBhed rulM ftpplic«J>1e to maritime mat-
ters merel7 became the oeean-goiiig (hip
eoaeemed happened to be owned and opei-
ated by a company alio a common carriei
hf railroad. The word "boats" in the etat-
ste refer* to Teasel* which may t>e prop-
erly regarded as In tutwtance bat part of a
railroad's extension or equipment as uo-
derstood and applied in common practice.
Tie fundamental purpose of the Corapen-
•ation Law, aa declared by the court of
appeals, is "the creation of a state fund to
Insure the payment of a prescribed oom-
pensation based on earnings for disability
or death from accidental Injuries sustained
by araployees engaged in certain enu
ated hazardous employments," among them
being "longshore work, including the load-
ing or unloading of cargoes or parts of car-
goes of grain, coal, on^ freight, general
Bterchaudise, lumber or other products or
materials, or moving or handling the some,
on any dock, platform or place, or in any
warehouse or other place of storage," Its
goieral provisions are specified in our opin-
ion in New York C. R. Co. r. White, supra,
^ and need not be repeated. Under the con-
^ Etruction adopted by the state courts no
* ship may load or discharge her "Cargo at a
dock therein without incurring a penalty,
onless her own^s comply with the act,
which, in order to secure payment of con-
pensation tor accidents, generally without
regard to fault, and based upon annual
wages, provides <S 60) that — "an employer
■lull secure compensation to his employees
in one of the following ways:
"1. By insuring and keeping insnred the
payment of such compensation in the state
fund, or 2. By insuring and keeping in-
sured the payment of such oompensation
with any stock corporation or mutual as-
■oeiatlon anthorlied to transact the busi-
DMS of workmen's compensation insurance
In this state. If insurance be so effected
In such a corporation of mutual associa-
tion the employer shall forthwith file with
the Commission, In form prescribed by it,
a notice specifying the name of such in-
surance corporation or mutual association
together with a copy of the contract or
policy of inenrauce, 3. By furnishing
aatisfactory proof to the Commission of
his financial ability to pay such compensa-
tion for himself, in which case the Com-
mission may, in its discretion, require the
deposit with the Commission of securities
of the kind prescribed in sectitm thirteen
sf the Insurance Law, in an amount to be
determined by the Commission, to secure
hi* liability to pay the compensation pro-
vided in this chapter."
"If an employer fail to comply with this
section, he shall be liable to a penal^ ivr-
ing which such failure oontinuee of aK
amount equal to the pro rata premium
which would have been payable for insur-
ance In the state fund for such period of
noncompliance to be recovered in an actios
brought 1^ the Commission."
Article 8, | 2, of the Constitution, «•
tends the Judicial power of the United
States "to all cases of admiralty and mari-
time jurlsdiotlon;" and article 1, g S, con-
fers upon the Congreas power "to make all
laws which shall be neceaaary and proper
for carrying into execution the foregoingn
powers and all other powers vested bye*
this ■Constitution in the government of the*
United States or in any department or of-
ficer thereof." Considering our former
opinions. It must now be accepted as set-
tled doctrine that, in consequence of these
provisions, Congress has paramount power
to fix and determine the maritime law
which shall prevail throughout the coun-
try. Butler V. Boston A, B. B. 8. Co. 139
U. S. 527, 32 L. ed. 1017, 9 Sup. Ct. Rep.
612; Be Oamett, 141 U. 8. I, 14, 3S U
ed. S31, 634, 11 Sup. Ct Bep. S40. And
further, that, in the absence of some coS'
trolling statute, the general maritime law,
as accepted by the Federal courts, con-
stitutes part of our national law, appli-
cable to matters within the admiralty and
maritime jurisdiction. The Lottawannn
(Rodd v. Heartt) 21 Wall. 5SS, 22 L. ed.
654; Butler v. Boston & S. S. S. Co. 130
U. S. C27, 667, 32 L. ed. 1017, 1024, 0 Sup.
Ct. Rep. 612; Workman v. New York, 170
U. 8. 5G2, 4S Ii. ed. 314, 21 Sup. Ct. B^
212.
In The Lottawanna, Ur. Justice Bradl^,
speaking for the court, said: "That wtt
have a maritime law of our own, operative
throngboui the United Stotoi^ cannot be
doubted. The general system of maritime
law wliich was familiar to the lawyers and
statesmen of the country wh«i the Con-
stitution wae adopted was most certainly
intonded and referred to when it was de-
clared in that instrument that the judicial
power of the United States shall extend
'to all cases of admiralty and maritime
jurisdiction.' . . . One thing, however,
is unquestionable; the Constitution must
have referred to a system of law coexten-
sive with, and operating uniformly in, the
whole country. It certainly could not bav*
been the intention to place the rules and
limits of maritime law under the disposal
and regulation of the several statos, as that
would have defeated the uniformity and
oonsisteucy at which the Constitution
aimed on all subjects of a commercial
character affecting the intercourse of thr
D,at,z.d-,.'^-.00'^IC
U16.
SOUTHEKN PACIFIC CO. t. JENSEN.
itetM with aadi otter or with foreign
■tataa."
By I 0, Judlciarr Act of 1789 (1 Bttit
At L. 7fl, 77, chap. 20), the district court*
^ of the United States were given "ezduiivo
9 original cogniEancs of all cItII causes of
•admiralty and'maritims jnTiBdictlon, , . .
■aving to suitors, in all cases, the right of a
eommon-Iaw remedy, whera tha common law
la competent to giva it." And tiiii grant
has been continued. Judicial Code, 9I 24
Md 2GQ [36 Stat, at L. 1D91, 1160, chap.
tSl, Comp. Stat. IDIB, |S 991 (1), 1233].
In view of these coastitutional provtsioni
and the Federal act it would be difficult,
if not impossible, to define with exactness
just how far the general maritime law may
be changed, modified, or affected by state
l^islation. That this may be done to some
extent cannot he denied. A lien upon a
Tessel for repairs in her own port may be
given by state statute (The Lottawanna
(Rodd V. Heartt) 21 Wall. 658, 679, 680,
£2 L. ed. 664, B63, 664; The J. E. Rum-
belt, 148 U. 8. 1, 37 L. ed. 346, 13 Sup.
Ct. Rep. 498); pilotage fees fixed (Cooley
V. Port Wardens, 12 How. 209, 13 L. ed.
996; Ex parte McNiel, 13 Wall. 236, 242,
SO L. ed. 624, 626) ; and the right given
to recover in death cases (The Hamilton
(Old Dominion 8. S. Co. v. Gilmore) 20T
U. 8. 308, 52 L. ed. 2M, 28 Sup. Ct. Rep.
133; La Bourgogne (Deslions v. La Com-
pagnie G«n«rale Transatl antique) 210 U.
8. OS, 138, 62 L. ed. 973, 993, 28 Bup. Ot
Rep. 664). See The City of Korwalk, 6S
Fed. 98, 106. Equally well established is
the rulo that state statutes may not con-
travene an applicable act of Congress or
affect the general maritime law beyond cer-
tain limits. Th^ cannot authorize pro-
ceedings in rem according to the course In
admiralty (The Moses Taylor, 4 Wall. 411,
18 L. ed. 397; American 8. B. Co. v. Chase,
16 Wall. 622, 634, 21 L. ed. 369, 372; The
Glide, 167 n. S. 606, 42 L. ed. 296, 17 Sup.
Ct. Rep. 930); nor create liens for ma-
terials used in repairing a foreign ship
(The Roanoke, 189 V. S. 186, 47 L. ed. 770,
23 Sup. Ct. Rep. 491). See Workman v.
New York, 179 U. 8. 662, 46 L. ed. 314, 21
Sup. Ct. Rep. 212. And plainly, we think,
so such legislation is valid if it contra-
venes the essential purpose expressed by an
act of Congress, or works material preju-
dice to the characteristic features of the
general maritime law, or Interferes with
the proper harmony and uniformity of that
law in ita international and Interstate re-
lations. This limitation, at the least, is
•asential to the effective operation of the
fundamental purposes for which such law
was incorporated into our national laws by
Oia Constitution itself. These purposes are
37 8. 0.— 84.
forcefully tadlcaUd in the foregoing quota-
tions from Hie Lottawanna. «.
A aimilar rule in respect to interstateJJ
commerce, dednced'from the grant to Con-*
gress ot power to r^ulata it, is now flrmly
established. "Where the eubject is na-
tional in its character, and admits and
requires uniformity of rqpilation, affecting
alike all the states, such as transportation
between the states, including the importa-
tion ot goods from one state to another,
Congress can alone act upon it and provide
the needed regulationa. The abeoice of any
law of Congress on the subject is equiva-
lent to Its declaration that commerce in
that matter shall be free." Bowman ▼,
Chicago £ N. W. K Co. 125 U. S. 46.1, 607,
608, 31 L. ed. 700, 714, 716, 1 Inters. Com.
Rep. S23, 8 Sup. Ct Rep. 680, 1062; Vsnca
V. W. A. Tandereook Co. 170 U. S. 438,
444, 42 L. ad. 1100, 1103, 18 Sup. Ct. Rep.
674; Clark Distilling (Do. v. Western Mary-
land R. Oo. 242 U. S. 311, 61 L. ed. 326, L.
R^. 1917B. 1218, 37 Sap. Ct. Rep. 180, decid-
ed Januarys, 1917. And the same character
of reasoning which supports this rule, we
think, makes imperative the stated limita-
tion upon tha power of the states to inter-
pose where maritime matters are iavolved.
The work of a stevedore, in which the
decesBod was engaging, is maritime in ita
nature; his employment was a maritime
contract; the injuries which he received
were likewise maritime; and the rights and
liabilities of the parties in connection there-
with were matters clearly within the ad-
miralty juriadiction. Atlantic Transport
Co. T. Imbrovek, 234 U. S. 62, 69. 60, 68
L. ed. 1208, 1211, 1212, 61 LJt.A,(N.S.)
1167, 34 Sup. Ct Rep. 733.
If New York can subject foreign ships
coming into her ports to such obligations
as those Imposed by her Compensation Stat-
ute, other states may do likewise. The
necessary e(»isequence would be destruction
of the very uniformity In respect to mari-
time matters which the Constitution waa
designed to establish; and freedom of navi-
gation between the state* and with foreign
countries would ba seriously hampered and
impeded. A far more serious injury would
result to commerce than could have been
inflicted by the Washington statute author-
izing a materialman's lien, condemned in
The Roanoke. The legislature exceeded its
authority in attempting to extotd the stat-^
ute under consideration to conditions likejj
those here disclosed, 'So applied, it con-*
flicte with the Constitution and to that e:^
tent is invalid.
Eidusive jurisdiction of all civil easaa
of admiralty and maritime jurisdtotion la
vested tn the Federal district courts, "sav-
ing to suitors tn all cases the rl^t of ft
,A.^OOglC
37 SUPBBME CX3UBX REPOBTEB.
OoT. Teui,
coumion-lftw remedf where the common Isw
Is eompetent to give it." Hie remedy which
the Compfniation St»tut« «,tteinpta to give
ii of A character whollj nnluiaini to the
eommon law, incapable of enforoaneiit bj
the ordiDarj proeeaui of anj court, and U
not Hived to euitora from the grant of ex-
clnsiTe jurisdiction. The Hine w. Trevor,
4 Wall. GTl, 672, 18 L. ed. 450; The Bel-
fast, 7 Wall. 824, 844, IS L. ed. 288, 272;
American S. B. Co. *. Chase, 16 Wall. 622,
S31, 633, 21 L. ed. 38B, 371, 372; The Glide,
187 U. S. 60S, 623, 42 L. ed. 2B8. 302, 17
Blip, Ct. Hep. 930. And finally, this rem-
edy la not cODBistent with the policy of
Congreas to encourage investmente in Bhips,
manifested in the Acts of 1861 [B BUt. at
L. 836, chap. 43] and 1884 (Rev. Stat.
4283-^285, Comp. Stat. 1018, §S 8021-6023;
I 18, Act of June 2B, 18g4, 23 Stat, at L.
67, chap. 121, Comp. Stat. ISIS, S 8028],
which declare a limitation upon the lia-
bility of their owuera. Kiehardeon v. Har-
mon, 222 U. S. 00, 104, 66 U ed. 110, 113,
32 Sup. Ct. Rep. 27.
The judgment of the oonrt below must
be reversed and the cause remanded for fur-
ther proceedings not iDConsiitaat witli Uiis
opinion.
Reversed.
Hr. Justice Holmes, dlasenting:
The Southern Pacific Company hu been
beld liable under the statutes of New York
for an accidental injury happening upon a
gang-plank between a pier and the com-
pany's vessel, and causing the death of one
of its employees. The company not having
insured as permitted, the statute may be
taken as if It simply imposed a limited but
absolute liability in such a ease. The short
question is whether the power of the state
to r^^late the liability In that place and
• to enforce It in the state's own courts ie
« taken away by the conferring of exelnsive
jnrisdiction'of all civil causes of admiral^
and maritime jurisdiction upon tbe courts
of the United States.
There is no doubt that the saving to
■nitors of the right of a common-law ran-
•dy leaves open the oommoD-law jurisdic-
tion of the state courts, and leaves some
power of legislation, at least, to the states.
Tor the latter I need do no more than re-
fer to state pilotage statutes, and to liens
created by state laws in aid of maritime
contracts. Nearer to the point, it is de-
cided that a statutory remedy for causing
death may be enforced by the state courts,
although the death was due to a calllsion
upon the high seaa. American S, B. Co. T.
Chase, 18 Wall 622, Zl L. ed. 309; Sherlock
T. Ailing, es n. S. M, 104, 23 L. ed.
US, 820; Enapp, 6. 4 Oo. Od. T. McCaltr^,
ITT n. 8. 038, «4«, 44 L. ed. ttl, 92C, 20
Sup. Ct Rep. 824; MinnesoU Bate Cues
(Simpeon V. Shepard) 230 U. 8. 802, 409,
67 L. ed. 1611, 1646, 48 L.RA.(N.e.) HSl,
33 Sup. Ct. Bep. 720, Ann. Cas. IBIOA, U.
The misgivings of Mr. Justice Bradl^ were
adverted to in The Hamilton (Old Domin-
ion S. S. Co. T. Qilmore) 207 U. S- 308,
62 L. ed. 264, 28 Sup. Ct. Rep. 133, and
held at least insufficient to prevent the
admiralty from reoogniting such a atata-
created right In a proper case, U indeed
they went to any such extent. Ia Bour-
gogne (Deslions v. Ia Compagnie Q4n4rale
Transatlantique) 210 U. S. 85, 138, 62 L.
ed. ST3, BB3, 28 Sup. Ct. Rep. 684.
Tlie statute having been upheld in other
reepecta (New York C. R. Co, v. White,
24S U. 8. 188, SI L. ed. 667, 87 Sup. Ct. Bep.
247), I should have thought these author-
ities conclusive. The liability created by
the New York act ends in a money judg-
ment, and the mode in which the amount
ia ascertained, or is to be paid, bnng one
that the state constitutionally might adopt,
cannot matter to the question before us if
any lialulity can be imposed that was not
known to the maritime law. And aa such a
liability can be imposed where it waa
unknown not only to the maritime but to
the common law, I can Ke no difference
between one otherwiaa constitutionally
created for death caused by accident and
one for death due to fault. Neither can
Harmon, 222 U. &-B6. 104, 68 L. ed. HO,'
113, 32 8np. Ot Rep. ST. Th^ are par-
amount to hut not inconsistent wlUi tbe
new cause of action. However, aa my opin-
ion stands on grounds that equally would
support a Judgment for a marltiine tort
not ending in death, with which admlraltr
courts have begun to deal, I will state the
reasons that satisfy my mind.
Ho doubt there eometlmes has been aa
air of benevolent gratuity in the ad-
miral^B attitude about enforeing steta
laws. But of eonne there is no gratni^
about It. Courts cannot give or withhold
at pleasure. If the claim ia aiforcad or
recognized it is because the claim is a
right, and if a claim depending upon a state
statute is enforced, it is because the stete
bad constitutional power to paaa the law.
Taking it sa esUblished that a state has
constitutional power te pass laws giving
righte and imposing liabilities for aete
dcme upon the high eeaa when there were
no such ri^te or llahilittta before, what
is there to binder Ite doing so in the ease
of a maritime tottl Not the sxlstsnee at
A^^OOglC
IBIC
SOtnHBRN PAOFIC CO. ▼. JXH8XN.
•B Iseonditcat law emuutting from % tn-
perior •ourca, that U, from the Uoitad
StatM. There !• no ■neh law. The mar-
itfane law !■ not a corpus juri» — it U a
Tory limited bodj of custome and or-
dlniuioei of the eea. Tlie nearest to any-
thing of the eort in question was the rule
that a eaamaa was entitled to recorer
(Kpenaei neoeaaary (or hie cure when
the maater'e a^ligenc* oauaed kli hurt The
maritime law gave him no more. The Os-
eeola, 18& U. S. ICS, 1TB, 47 L. ed. 760,
7S4, 23 Sup. Ct. Rep. 4S3. One may af-
firm with the aanetion of that eaae that
it la an Innovation to allow ealta in the
admiralty by eeamen to recover damages
for petaonal injuries canied bj' the neg-
tigenee of the iuaat«r, and to apply the
eommon-law prlnoiples of tort.
Now, however, oommon-law priuelplea
have been applied to austain a libel by a
stevedore in peraonam againiit the magter
for penonal injuriea auffared while loading
a ship. Atlantic Transport Co. *. Im-
tn'ovek, 834 U. S. 62, &S L. ed. 1208, fil
^L.H.A.(N.S.) 1167, 34 Sup. Ot. Hap. 738,
Rand The Osceola recogniaea that In soma
• eases, at'least, seamen may have ilmilar
relief. From what source do these new
rl^ta comet The earliest case relies upon
"^e analogies of the municipal law" (The
Bdlth Oodden, 23 Fed. 43, 4< ),— sufficient
ffidence of the obvious pattern, but inad-
equate for the specifle origin. I recognize
without hMltation that judgea do and muat
legialate, but they can do ao only Inter-
stJtiaUy; they are eonflned from molar to
OKdecuIar motions. A eommon-law judge
•onld not aay, *? Uiluk the doctrine of
•oDsideratlon a bit of hiitorieal nonsense
and shall not enforce It In my court." No
more could a judge, ezerolsing the limited
jurisdiction of admiralty, aay, '^ think
well of the common-law rulea of master
and servant, and proposs to Introduce
them here en bloa" Certainly he could not
In that way enlarge the exeluiive jurisdie-
tlcm of the diitriot courts and cut down the
power of the atates. If admiral^ adopts
oommon-law rules without an act of Con-
greaa, it cannot extend the maritime law
as understood fay the Constitution. It must
take the rights of the parties from a dif-
ferent authority, jnst as it does when it
aiforcea a lien created by a state. The
only authority available la the common
law or atatntea of a state. For from the
often-repeated statement that there is no
common law of the United States (Wheat-
ou V. Peters, 8 Pet. 091, 6S8, 6 L. ed. 1056,
107»; Western D. Teleg. Co. v. Call Pub.
Co. 181 n. S. fS, 101, 45 L. ed. 786, 770,
SI Snp. CI. Rep. 581), and from the prln-
elylaa neognlsed In Atlantk Transport Oo.
T. Imbrovek having been tmlmown to the
maritime law, the natural Inference Is that,
in the alleaee of Congreas, this court has
believed the very limited law of the sea
to be supplemented here as in England by
the common law, and that here that means,
by the common Uw of the state. Sherlock
V. Ailing, OS n. S. BO, 104, £3 L. ed. SIB,
820. Taylor v. Carryl, 20 How. 683. 608,
IS li. ed. lOZS, 1033. So far as I know, the
state oourta have made this assumption
without critlciam or attempt at revision
from the beginning to this day; a. g., Wii-
BOn V. MacKenaie, 7 Hill, 96, 42 Am. Dec.
61; Qabrielsou v. Waydell, 135 N. T. l,n
II, 17 L.R.A. 228, 31 Am. St. R^. 703, 31 S
N. E. BSe;*Kalleck v. Deenug, 181 Mass.*
480, 3T N. E. 460, 42 Am. St Sep. 421, IS
Am. Neg. Caa. 872. See Ogle v. Barnea, 8
T. R. 188, 101 Eng. Reprint, 1338; Nichol-
son V. Mounsey, IS East, 384, 104 Eng.
Reprint, 8B0, 18 Bevlaed Rep. SDl. Even
where the admiralty haa unqueetioned
juriadictlon the oommon law may have
concurrent authority and the state courts
concurrent power. Schoon maker v. Gil-
more, 102 U. S. 118, 28 L. ed. BS. The
invalidity of state attempts to create a
remedy for maritime contract* or torts,
parallel to that in the admiralty, that waa
established In such eases as The Uoses Tay-
lor, 4 WaU. 411, 18 L. ed. SET, and The
Hine v. Trevor, 4 Wall, S56, 18 L. ed, 461,
ia immaterial to the present point.
The common law ia not a brooding omni-
presence In the sky, hut the articulate volee
of Bome sovereign or quasi sovereign that
can be identifled; although some decisions
with which I have disagreed seem to me
to have forgotten the fact. It always is
the law of some state, and if the district
courts adopt the common law of torts, as
they have ahowu a tendeney to do, they
thereby assume that a law not of maritime
origin, and deriving its authority in that
territory only from some particular state
of this Union, also governs maritime torts
in that territory, — and If the common law,
the statute law haa at least equal force,
as the discussion in The Osceola aasumea.
On the other hand, the refusal of the dia-
trict courta to give remedies coextensive
with ths common law would prove no more
than that tbey regarded their jurisdiction
a« limited by the ancient lines, — not that
they doubted that the cfHumon law miglit
and would be enforced In the courta of the
states aa it alwaya haa beoi. This court
has recognized that in some eases different
prlnoiples of liability would tte applied aa
the suit should happen to be brought in a
common law or admirallj eoort. Compare
The Max Iforrls, 187 U. a 1, 34 L. ed.
SS«, 11 Sup. CL Bap. 29, with Beldan *.
A^^OOglC
37 SUPREME COtTBT REPORTBB.
Chue, 150 n. 8. 074, BOl, 37 L. ed. 1218,
1224, 14 Sup. Ct. Bep. 260. But hitherto
it haa not been doubted authoritAtlvel;,
t».T as I know, that even vrhen the admiralty
had tt rule of it« own to which It adhered,
nai In Workman r. New York, 179 U. S.
SS92, 4S L. ed. 314, el Sup. Ct. Rep. 212,
'the state law, common or itatute,* would
prevail In the courtB of the state. Happily
•uch conflictB are ie\r.
It might be asked why, if the grant of
Jurisdiction to the courU of the United
States imports a power in Congresa to
l^ialate, the laving of a eommoD-law rem-
edy, 1. e., in the state courts, did not im-
port a like if subordinate power in the
states. But leaving that question on one
aide, such cases as American B. B. C<
Cbase, 16 Wall. 522, 21 L. ed. 309; The
Hamilton (Old Dominion S. 8. Co. v. Oil-
more) 207 U. S. 3SB, S2 L. ed. 264, 28 Sup.
Ct Bep. 133, and Atlantie Tranaport Co.
v. Imbrovek, supra, show that it is too late
to say that the mere ailence of Gongreas
excludes the statute or common law of a
state from supplementing the wholly inade-
quate maritime law of the time of the Con-
stitution, in the regulation of personal
rights, and I venture to say that it never
has been supposed to do so, or had any such
effect.
Am to the specter of a lack of uniformity,
I content myself with referring to The
Hamilton (Old Dominion B. 8. Co. t. Oil-
more) 207 U. S. 398, 400, S2 L. ed. 2S4,
270, 28 8up. Ct. Rep. 133. The difficulty
really is not so great aj in the case of inter-
state earriers by land, which, "in the ab-
sence of Federal statute providing a differ-
ent rule, are answerable according to the
law of the state for nonfeasance or misfeaa-
anee within its limits." Minnesota Rate
Cases (Simpson v. Shepard) 230 U. 8. 362,
408, 67 I., ed. 1611, 164S, 48 L.R.A.(N.S.)
1161, 33 Sup. Ct. Rep. 729, Ann. Caa.
1916A, IS, and cases cited. The conclusion
that I reach accords with the considered
cases of Lindstrom v. Mutual S. S. Co. 132
Minn. 328, L.R.A.iei6D, 935, 166 N. W.
069; Kennerson v. Thames Towboat Co. 69
Conn. 367, L..R.A.IS1QA, 430, 94 Atl. 172;
and North Paciflc 8. S. Co. v. Industrial
Acci. Commiasion, — Cal. — , 103 Fee. 199,
as well as with the New York decision in
this case. 216 N. Y. 614, L.R.A.1916A, 403,
lOB N. E, 600, Ann, Cas. 10J6B, 270, 9 N. C.
C. A. 230.
Mr. Justice Pitney, dissenting:
While concurring substantially In the
dissenting opinion of Mr. Justice Holmes,
I deem It proper, in view of the momentous
consequences of the decision, to pieasnt
some additional conaid««tions.
OoT. 1^U^4
* Tliis dissent is confload to that part it *
the prevailing opinion which holds that tin
Workmen's Compensation Act of New York,
as applied by the state court to a fatal in-
jury sustained by a stevedore while engaged
in work of a maritime nature upon naviga-
ble water within that st«t«, ccmdicts with
the Constitution of the United States and
the act of Congress conferring admiralty and
maritime jurisdiction in civil eases upon
the district oourta of the United States,
and is to that extent invalid. Except for
the statute, an action might have been
brought in a court of admiral^. Atlantie
Transport Co. v. Imbrovek, Z34 U. B. 62,
62, 68 L. ed. 1208, 1212, 61 L.R-A.{N.S.>
11E7, 34 6up. Ct. Rep. 733. No question
is raised respecting the jurisdiction of the
state court over the subject-matter. But
plaintiff in error contends, and the prevail-
ing opinion holds, that it was a. violation of
a Federal right for the state court to apply
the provisions of the local statute to a causa
of action of maritime origin, because, by
the Constitution of the United States, admi<
ralty jurisdiction was conferred upon the
Federal courts.
It should be stated, at the outset, that
the ease iuvolves no question of penaltlaa
imposed by the New York act, but affects
solely the responsibility of the employer to
make compensation to the widow, in accord-
ance with its provisions, which are outlined
in New York C. R. Co. v. White, 243 U. S.
ISS. 192-ieS, 01 li. ed. 667, 87 Sup. Ct.
Rep. 247.
The argument is that, even in the abeaic*
of any act of Congress prescribing the rs-
sponsibility of a shipowner to bis stevedore,
the general maritime law, aa accepted by
the Federal courts when acting in the exer-
cise of their admiralty jurisdiction, muat
be adopted as the rule of decision by state
courts of common law when passing upon
any case that might have been brought la
the admiralty; and that, juat aa the ab-
sence of an act of Congress reflating inter-
state commerce in some cases is equivalent
to a declaration by Congreas that commeroa^
in that reaped shall be free, so nonaction^
by Congress amounts to an'imperatire liml-'
tation upon the power of the states to inter-
pose where maritime matters are involved.
This view Is eo entirely unsupported b^
precedent, and will have such novel and far-
reaching consequences, that it ought not to
be accepted without the most thorough con-
sideration.
Section 2 of article 3 of the Constitution
reads as follows : "The judicial Power
shall extend to all Casee, In Law and Equi-
ty, arising under this Constitution, tba
Laws of the United States, and Treaties
made, or which shall be made, under tbtix
,A_.OOglC
191«.
SOUTHEEN PACIFIC CO. t. JENSEN.
Alltliortl7i to all Ouea affecting AwiTnm-
don, ottier public Minliten and Coniuli;
to aU Cases of admirsltf and maritima
Juriidiction; to ControTersle* to nhlch tha
United Gtstea ab&ll ba a party; to Con-
troTeraiea between two or more Statea; bo-
tweon a Stata and CltiMU of aaoUier
etate; between Citizena of different StAtai;
between Citiiena of tbe lama State claiming
I«nd* under Granta of differant Statea, and
between a State, or tlie Citizen* thereof,
and foreigo Stat«a, Citizen* or Subject*."
Acting under tlie autbority of article 1,
I 8, which empowera Congreia to malce all
lawa neeeiBary and proper for carrying into
•xecution the powera vetted in the govern-
ment or in any department or officer there-
of, the flret Congreet, in the original Jodi-
elary Act (Act of September 24, 1789, chap.
to, I S, 1 Stat, at L. 73, 77), conferred
upon the Federal district court* "esclusive
original cognizance of all civil canaea of
admiralty and maritime juriadiction, . . .
Mving to enitora, in all case*, the right of a
common-law remedy, where the common law
la competent to give it." The laving dauae
has been preserved in all lubaeqaent re-
vieione. Rev. Stat, g GSS <S1, Judicial Code,
I 24 (3), 36 Stat, at L. ^0S7, 1091, chap.
231, Comp.SUt. 1910, 8§ ees, 991 (3).
From tbe lenguage quoted from the Con-
stitution, read in the light of the general
purpose of that inatrument and the contem-
9 poraneous conatruetion found in the Ju-
J! dieiary Act, with regard also to the misehiefa
■that called for the 'eatabllahment of a
national judiciary, and from what I believe
to be the unbroken current of decision* in
till* court from that day until the present,
I draw the following conciuaiona: ( 1 ]
That the framers of tha Constitution in-
tended to ettablislt juritdietion, — the power
to hear and determine controveralea of the
Tarioiia classea specified, — and mot to pre-
•oKbe particular codes or tytenu of law
for the decision of those controverale*; (2)
that the civil jurJEdictlon in admiralty wa*
not Intended to Im exclusive of the courts
of common Uw, at letut not until Congress
■hould deem it proper so to enact ; ( 3 ) that
1^ tbe law of England, and by the practice
of the colonial govcrnmenta, the courts of
common law, of equity, and of admiralty,
were controlled in their decisions by aep-
arate, and, in a sense, indepeadent systems
of substantive law, and the constitutional
grant of judicial power In "all caaea in law
and aqui^," and in "all eaaea of admiralty
and maritime jurisdiction," was no more in-
tended (in the absence of legislation by
Congress) to make the rules of maritime
law binding upon the Federal courts of com-
mon law when exercising their concurrent
jurisdiction, than to make the rules of the
common law binding npmi the narts of
admiralty; (4) that, it not binding upon
the Federal courts, it reaulta, s fortiori,
that the rules of maritime law were not
intended to be made binding upon the courts
of the statea; (fi) that it ia not neceasary,
in order to give full effect to the grant of
admiralty and maritime jurisdiction, to
Imply that the rules of decision prevailing
in admiralty must be binding upon com-
mon-law courts eiercising concurrent juris-
diction in civil cauaea of maritime origin,
and to give such a construction to the Con-
stitution is to render unconstitutional the
aaving clause in | 9 of the Judiciary Act,
and bJ*o to trench upon the proper powers
of the states hj interfering with their con-
trol over their water-borne internal com-
merce; and (6) that, in the abaenee of legia-^
lation by Congresa abrogating the saving^
jglause, like states are at lilier^ to admin-*
Ister their own laws in their own courts
when exercising a jurisdiction concurrent
with that of admiralty, and at litiertf to
change those laws by statute.
That the language of g 2 of art, 3 of the
Constitution speaks only of establishing
jurisdiction, and doe* not prescribe the
mode in which or the auitatantlve law by
which the exercise of that jurisdiction is to
be governed, seems to me entirely plain;
and upon this point I need only refer to
the language itself, which I have quoted.
That thia view is in harmony with tha
general purpose of th* Constitution seems
to me equally plain. At this late date it
ought not to be necessary to repeat that
the object of the framera of that instrument
was to lay the foundations of a government,
to set up ita framework, and to establish
merely tiie general principles hy which it
was to he animated; avoiding, as far as
possible, any but the most fundamental reg-
ulations for controlling it* operations, and
theae usually in the form of restriction*.
Vanhomo v. Dorranee, 2 Dali. 304, 308, 1
L, ed. 391, 393, Fed. Cas. No. 16,867;
Martin v. Hunter, 1 Wheat 304, 32fl, 4 L.
ed. 97, 102.
The object was to enumerate, rather than
to define, the powers granted. Gibbons t.
Ogden, 9 Wheat. 1, 189, 194, 0 L. ed. 23, 68,
69; Faasenger Cases, 7 How. S83, 549, 12
L, ed. 702, 813; Lottery Case (Champion t.
Ames) 188 XJ. 8. 321, 34Q, 47 L. ed. 4S2,
497, 23 Sup. Ct. Rep, 321, 13 Am. Crim.
Rep. 661. To delineate only the great out-
lines of the judicial power, leaving the de-
tails to Congresa, while providing for the
organization of the I^alativa department
and the mode in which and the restrictions
under which ita authority sliould In exer-
cised. Rhode Island V. Massachusetts, 12 Feb
' «67, 721, 9 L. ed. 1233, 12fi9. The reason
A^iOOgic
S7 SUPKEMB COUBT REFORTEH.
OoT. Xebu,
for wloptliig general ontUnei only wu well
vqtTMBed by Mr. Chief Juetlee Mfttshsll In
ITCuUooti T. UaryUnd, 4 Wheat 31(1, 407,
4 L. ed. CT9, 601 : "A conititution, to eon-
Uiin rnn Hcenrate deteill of all the luh-
dlvlafone of which Iti great powers will ad-
nit, end of all the meaui fay which they
^ may be carried into eseeution, would par-
I! take of the prolixity of a legal code, and
■ eoiild>icarcely be embraced by the humeji
mind. It would probably never be under-
■tood by the public. Its nature, therefore,
reqnlree that only Ite great outlinea ehould
be marked, ite important objects deei^ated,
and the minor ingredients which compcea
thoee objects be deduced from the nature
(rf tlte objects themselves. That this idea
wa* entertained by the framers of the
American Constitution Is not only to be
Inferred from the nature of the instrument,
but from the language."
The adoption of any particular system of
Htbetantlve law was not within the pur-
pose of the Constitutional Convention; and
tlie clause establishing the judicial power
was ill-adapted to the purpose, had it ex-
isted. So far as they intended to prescribe
permanent rules of substantive or eren pro-
eedural law In eonnection with the ea-
tablishmcnt of the judicial system, the
framers employed express terms for the
purpose, as appears from Other provisions
of article 3, including the definition of
treason, the character of proof required, the
limitation of the punishment, and the re-
quirement of a Jury trial for this and otber
In a somewhat exhanstive examination of
Tarious eourcea of information, iucludiag
Elliot's Debates, Fkrrand's Records of the
Federal Convention, and The Federalist,
Nob. 80-S3, I have been unable to find any-
thing even remotely suggesting that the ju-
dicial clause was dedcned to establlsb
the maritime code or any other system of
laws for (iia determination of eontroversles
In the courts 1^ it established, much less
any suggeetion that the maritime code waa
to constitute the rule of decision in com-
mon-law courtfl, either Federal or state.
Certainly, there is nothing in the mere
provision establishing jurisdiction In admi-
ralty and maritime causes to have that ef-
2 feet, unlesH the jurisdiction so establiabed
M was in its nature exclusive. But, in civil
eausee, the ■Jurisdiction was not exclusive
by the law of England and of the coloniea,
and It was not made an exclusive Jurisdic-
tion by the Constitution.
In discussEng this point, the distinction
between the inataoce court and the pri:
court of admiralty must be observed. It
was held in England that the question of
prize or no prire, and other questions aris-
ing out of It, were ezelualTely cognizable
in the admiralty, because that court took
Jurisdiction owing to the fact of poeaeesion
of a prise of war, and tLe eontroveray
turned upon belligerent rigbts and waa da-
terminable 1^ the law of nations, and not
the particular municipal law of any coun-
try. Le Caux t. Eden (1781) 2 Dougl. K.
B. sa4, 608-613, 9S Eng. Reprint, 375, 379-
3SS; Llndo t. Rodney, reported in a note
to Le Caux v. Eden, S Dougl. K. B. 613,
89 Bng. Reprbt, 385: Smart t. Wolff
(1789) 3 T. R. 323, 3iO, et eeq., 100 Eng.
Reprint, SOO; Camden v. Home (1701) 4
T. R. 3S2, 393, et seq., 100 £ng. Reprint,
1076, 6 Bro. P. C. 203, 2 Eng. Reprint, 1023,
2 H. Bl. 633, 126 Eng. Reprint, 067. But
of civil actions in personam the tnstanca
court exercised a Juriediction concurrent
with that of the courts of common law. As
Ld. Uansfleld aaid in Lindo v. Rodney, 2
Dougl. K. B. 614: "A thing being done
upon the high sea don't exclude the juris-
diction of the court of common law. For
aalzing, stopping, or taking a ship, upon the
high, aea, not of pri;e, an action will lie;
but for taking at price, no action will lie.
The nature of the question excludes; not
the locality." And again, referring to the
effect of certain statutes [p. 616) : "The
taking a ship upon the high sea is triable at
law to repair the plaintiff in damsgea; but a
taking on flie high sea as prise is not tria-
ble at law to repair the plaintiff in dam-
ages. The nature of the ground of the ao-
tlon — price or no prize — not only authorizes
the prlie court, but excludes the common
law. These statutei don't exclude the com-
mon law in any ease, and they confine tbe
admiralty by the locality of the thing done,
which is the cause of action. It must be
done upon the high sea." a
So, with reepeet to actions ex contractu.^
Mr. Justice 'Blackstone says, 3 BL Com.*'
107 1 "It Is no uncommon thing for a plain-
tiff to feign that a contract, re&lly made at
sea, was made at the royal exchange, or
other Inland place, in order to draw the
cognisance of the suit from the courts of
admiralty to those of Westminster Hall."
The concurrent jurisdiction of the courts of
common law waa affirmed by Dr. Browne,
the llrat edition of whose work was pub-
lished In 17S7-I799. 2 Browne, ClvU *
Admiralty I«w, 1st Am. ed. 112, 116.
The declaration of Ur. Justice Nelson,
speaking for this court in New Jersey Steam
Nav. Co. T. Merchants' Bank, 6 How. 344,
390, 12 L. ed. 466, 48e, that the lodging by
the Constitution of the entire admiral^
power in the Federal judiciary, and the 9th
section of tbe Judiciary Act, with Ita saring
of common-law remedies, left the concur-
rent power of the courts of common law and
,A_^OOglC
ISIS.
BOUTHEEN PACIFIC CO. t. JENSBW.
SK
of admiTaUj nbera tt stood kt
«M not A chanco renuirk. It bM b«en no
ruled In mAUf other cam*, to whteh I shall
refer hereafter. The principles and hlstorj
of tlie common law were well known to the
framera of the Constitution and tlie mem-
ber! of the first CongresHi it waa from that
■TBtem that their terminology was de-
rived; and the provUionB of the Constitu-
tion and contemporaneous legislation must
be interpreted accordingly.
The statement that there h no common
law of the United Btabes (Wheaton v.
Feters, 8 Pet. SSI, 6E8, S h. ed. 1055, 107S;
Smith T. Alabama, 124 U. S. 4«G, 473, 31
L. ed. fiOS, 612, I Inters. Com. Kep. 804,
8 Sup. Ct. Sep. 664) is true only In the
■ease that the Constitution neither of its
own force imposed, nor authoriied Congress
to impose, the common law or any other
gmeral hodj of laws upon the aereral atates
for the regulation of their internal affairs.
As was pointed out in Smitli t. Alabama (p.
478); "There Is, however, one clear excep-
tion to the statement that there Is no
national common law. The Interpretation
of the Constitution of ths United States
JJ is necessarily influenced hj the fact that
M it* provisions are framed in the language
of the*EngllBh common law, and are to be
ruid in the light of Its history."
As was well expressed by Shiraa, Dis-
trict Judge, in Murray v. Chicago 4 N. W.
B. Co. 62 Fed. 24, 31: "From thorn [cita-
tions of the decisions of this court] It
appears beyond question, that the Constitu-
tion, the Judiciary Act of ITSfl, and all sub-
■equent atatutea upon the aama subject, are
based npon the general principles of the
common law, and that, to a large extent,
the legislative and judicial Mtion of the
(orernment would be without support and
wlthont meaning if they cannot be In-
terpreted in the light of the common
law. When the Constitution was adopt-
•d. It was not the design of the fram-
■ra thereof to create any new systems of
general law, nor to supplant those already
in existence. At that time there were in
•zlsteaee and In force In the colonies or
states, and among the people thereof, the
law of nations, the law admiralty and mari-
time, the common Isw, Including commercial
law, and the system of equity. Upon these
foundations the Constitution was erected.
auaet a law of nations, of admiralty, of
•qnlty, or the like, but rather how abould
the executive, legislative, and judicial pow-
ers and duties based upon these systems,
and necessary for the proper development
and enforcement thereof, be apportioned be-
tween the national and state governments."
And It Is not to be sapposed Uiat the
framers of ths Constitution, familiar witk
the institutions and the principles of the
common law, by which the admiralty juris*
diction was allowed on sufferance, and with
a degree of jealousy bom of the fact that
the courts of admiralty were not courte ol
record, that they followed the practice of
the dvil law, allowed no trial by jury, and
administered an exotic system ol laws (t
BL Com. 8D, 8S, 87, 1(W-108),— it Is not tOn
be supposed, I say, that the frameis of tbeJJ
'Constitution, In granting judicial power*
over cases of admiralty and maritime juris-
diction, along with like power over all cases
In law and equity arising under the laws
of the United States, intended to exclude
common-law court*, state or national, from
any part of their concurrent jurisdiction In
casee of maritime origin, or to deprive them
of the judicial power, theretofore existing,
to decide such cases according to the rules
of the common law.
It Is matter of familiar history that on*
of the chief weakneasea of the Confedera-
tion was in the absence of a judicial estab-
lishment possessed of general authority.
Except that the Continental Congress, as
on incident of the war power, was author-
ised to establish rules respecting captures
and the disposition of prizes of war, and to
appoint courte for the trial of piraeies and
felonies committed on the high sea, and for
determining appeals in oases of capture, and
except that the Congress itself, through
commissioners, was to exercise jurisdiction
in disputes between the stetaa and in aon<
trovereies respecting conflicting land grants
of diHercnt states, there was no provision
in the Articles of Confederation for esteb-
lishing a judicial system under tlie author
ity of the general government.
The result wae that not only private par-
ties. In cases arising out of the laws of the
Congress, but the United Stetes themselves,
were obliged to resort to the courts of ths
states for the entorceraeot of their righta.
Many cases of this character are reported,
some even antedating the Confederatio*.
Hespublica t. Sweers (177S) 1 Dall. 41, 1
L. ed. 29; Hespublica t. PoweU (1780) 1
Dall. 47, 1 L. ed. 31 ; Hespublica v. De Long-
champs (1784) 1 Dall. Ill, 1 L. ed. 00.
Even treason was punished In stete courte
and under stete laws. See cases of Molder,
Malin, Carlisle, and Bobeite (1778) 1 DaU.
33-3fl, 1 L. ed. 25-27.
Before the Revolution, courts of adml-B
ralty Jurisdiction were a part of the Judl-g
clal eysUma of the several colonies. * War- *
ing T. Clarke, 6 How. 441, 464-456, 1£ L.
ed. 226, 232-234, Bwedict, Admiralty, SS
118-165. Upon the outbreak of the war
question* of prise law became acute, and the
A^iOOglC
»7 SUPBEME COUKT EEPORTER.
Oct. Tm^
•olonlsl Congresf, by reaolatloiu of Novem-
bflr Z$, ITTS, passed in the exercUe of ths
w»t power {Penhailow t, Doane, 3 Ds.ll, 64,
80, 1 L. ed. G07, BIS), iiis.de appTopriate
recomniGndations for the treatment of
prices of war, but remitted th« jurisdiction
over sucli questions to the courts of ths
■erenl colonies, reserving to itself only ap-
pellate authority. This system continued
nntil the yasr 178D (after the luhmlaslon
of the Articles of C!onfederi.tion, but be-
fore thetr final rsttScation), when the Con-
gress established % eonrt for the hearing of
appeals from the state courts of sdmlrslty
In cases of capture. The opinions of this
oonrt are reported In E DalL 1-42, 1 L. ed.
£83-261, and nuinerous cases decided with-
out opinion, Bs well as some of those de-
eided by eommittees of tha Congress prior
to the establishment of the court, are refer-
red to Iji the late Bancroft Davis's "Fed-
eral Courts Before tha Constitution," ISl
U. 8, zlx.-zliz., Appz. The weak point of
this system was the want of power In the
central government to enforce the judgment
of the appellate tribunal when it chanced to
reverse the decree of a state court. There
were some curious cases of conflicting juris-
diction, illustrated by Doane v. Fenhallow
(1TS7) 1 Ball. 218, 221, 1 L. ed. 108, 100;
Fenhallon v. Doane (1795) 3 Dsll. 64, 79,
88, 1 L. od. 607, B17, 620; and United
Btates V. Peters (1309) 6 Cranch, IIS, 136,
1S7, 3 L, ed. 63, 69, 00.
It was under the influence of numerous
experience* of the inefllciency of a general
government unendowed with judicial au-
tliority that the Constitutional Convention
assembled in the year 1787. The funda-
mental need, to which the Convention ad-
dressed itself in framing the judiciary arti-
cle, was to set up a judicial power covering
all subjects of national concern. There was
BO greater need to establish jurisdiction
over admiralty and maritime causes than
a over controversies arising under the Const!-
S tntion and laws of tha Union. There was
BO purpose to'establish a system of sub-
•tantive law tn any of the several classes
of cases included wifltn the grant of ju-
dicial power. The Isnguage employed
makes It plain that, with the few express
exceptions already noted (treason, etc.) the
rules of decision were to he sought else-
where. The entire absence of a purpose to
establish a maritime code Is manifest not
only from the omission of any reference to
the laws of Cleron, the laws of WIsbuy, or
any other of the maritime codes recognised
by the nations of Europe, but further from
the fact that the colonies differed among
themselves as to maritime law and admi-
ralty practice, and that their system In
general differed from that whloli was ad-
minietered In England. The evident pur-
pose. In this as in the other classes of con-
troversy, wa* that the courts of admiralty
should administer justice according to the
previous course and practice of such courts
in the colonies, just as the courts of common
law and equity jurisdiction were to proceed
according to the several systems of sub-
stantive law appropriate to courts of their
respective kinds; subject, of course, to the
power of CongrsBS to change the rules of
law respecting matters lying within its ap-
propriate sphere of action.
Undoubtedly the framers of the Constitu-
tion were advised of the ancient controversy
in England between the common-law courts
and the courts of admiralty respecting the
extent of the jurisdiction of the latter.
They were aware of the dual function of the
admiralty courts as courts of instance and
as prize courts, and of the established rule
that in civil causes the jurisdiction of the
instance court was concurrent with that of
the courts of common law. They must have
known that, whatever question hod existed
as to the territorial limits of the jurisdic-
tion of the admiralty. It never had been
questioned that in suits for mariners' wsgea
and suits upon policies of marine insurance,
and lu other actions ex contrsctu having a la
maritims character, and also in actions olEE
tort* arising upon the sea, the courts ol*
common law exercised, and long had exer-
cised, concurrent jurisdiction. Whatever
early doubts may have existed had been
based not upon any inherent incapacity of
the common-law courts to deal with t^he sab-
jeet-mattere, but upon the ancient theory of
the venue, and disappeared with the recog-
nition of the fictitious venue.
The grant of judicial power In eases of
admiralty and maritime jurisdiction never
has been construed as excluding the juris-
diction of the courts of common law over
civil causes that, before the Constitution,
were subject to the eoncurrent jurisdietioa
of the courts of admiralty and the common-
law courts. The first Congress did not M
construe It, as the saving clause in the Ju-
diciary Act conclusively shows. And, as-
suming that the states, in the absence of
legislation by Congress, would be without
power over the subject-matter, this saving
clause, still maintained upon the itatut*
book, is a suflicient grsnt of power. Juris-
diction in prize eases, as bas been shown,
springs out of the possession of a prize of
war. Civil proceedings In rem, to be men-
tioned hereafter, are based upon the marl-
time lien, where possession in the claimant
is neither necessary nor usual as is the casa
with common-law liens. With these excep-
Uons, both resting upon grounds peculiar
to the forma of the admiralty, concurrent
,A_^OOglC
leio.
BODIBBBN PACIFIC CO. t. JEKSBN.
m
jurisdiction of tbe courta ot commoii Uw
In civil caaea oi maritime origin alwaji haa
b«eii recognized by this court. New Jersey
eteam Nav. Co. v. Mercli»iit«' Bank, 0 How,
344, 390, 12 Ia ed. 405, 48G; The Genewe
Cbief 1. Fitzhugh, 12 How. 443, 46S, 13 L.
•d. loss, 1066: Tlie Belfut, 7 Wail. 624,
044, 645, 19 L. ed. 266, 272; New England
Mut M. Ids. Co. t. Dunham, II W«U. 1, 32,
20 L. cd. 90, 9D; Leon v. Oalceran, 11 Wall.
IBS, 187, IBS, 20 L. ed. 74. 70; American
B. B. Co. V. Chase, Ifi Wail. 622, 633, 21
L. ed. 369, 372; SchoonmalceT t. Gilmore,
102 U. S. lis, 26 L. ed. 06i Manchester t.
UaeeachusettB, 139 U. 8. 240, 262, 3B L.
•d. 169, 166, II Sup. Ct. Rep. 669.
^ Nor is the reservation of a common-law
M remedy limited to such causes ol action as
• ware known to the common law'at the time
of the passage of the Judiciary Act. It
ineludea statutory changea. American S.
B. Co. T. Chase, 18 Wail. 622, 633, 634, 21
L. ed. S69, 3T2, 373; Knapp, 8. ft Go. t.
McCaffrey, 177 U. B. 638. 644. 44 L. ed. 921,
924, 20 Sup. Ct. Rep. 824. Those remedin
which were held not to be cotnmon-law r
dies, within the saving clause, in The Moses
Taylor, 4 Wall, 411, 427, 431, 18 L. ed. 397,
400, 402; The Bins t. Trevor, 4 Wall. 665,
571. 572, IS I., ed. 461, 466; The Belfast,
7 Wall. 624, 644, 19 L. ed. 206, 872; Ameri-
can S. B. Co. T. Chase, 16 Wall. 622, 633. 21
L. ed. 309, 372, and The Glide, 187 U. S.
<I06, 623, 42 L. ed. 290, 302, 17 Bup. Ct
Rep. 930, provided for Imposing a lien on
the ship by proceedings in the nature of
admiralty process in rem, and it was for
this reacon only that they were held to
trench upon the exclusive admiralty jurle-
dietion of the courts of the United States.
Ths distinction was noticed in Leon v.
Oalceran, 11 Wall. 1S6, 180, 20 L. ed. 74,
n, and egaiu in Knapp, 8. ft Co. t.
McCaffrey, 177 V. B. 038, 642, 44 L. ed. 821,
«23, 20 Sup. Ct. Rep. 824. In the latter
«aae it was pointed out (p. 044) that the
reservation of a common-law remedy where
the common law is compet«nt to give it was
not confined to common -law actions, but
faieluded remedies without action, sneh as a
^stress for rent or for the trespass of
cattle; a bailee's remedy by detaining per-
«onal property until paid for work done up-
on it or for expenses incurred In keeping it;
the lien ef an innkeeper upon the goods of
his guests, and that of a carrier upon things
«arried; the remedj of a nnisance by abate-
ment, and others. The most recent deB-
nltion of the rule laid down in The Hlne v.
^«vor and other cases of that class Is In
Bounds T. Cloverport Foundry ft Mach. Co.
t37 U. 8. 303. 69 L. «d. 906, 30 Sup. Ct.
11^696.
I haTa udeavoTAd to ihow, boat k mb-
sideration of the phraseology of the consti-
tutional grant ol jnrlsdiction and the act ttt
the first Congress, passed to give effect to
it, from the history in the light of which
the language of those instruments ia to be
interpreted, and from the uniform course <tf
decision In this court, from the earliest
time until the present, these propositions:
first, that the grant ol jurisdiction to thev
admiralty was not intended to b^eiclusive*
of the concurrent jurisdiction of the con-
moD-Iaw courts theretofore recogniied; and,
secondly, that neither the Constitution nor
the Judiciary Aot ws« intended to prescribe
a system of substantive law to govern th*
several courts in the exercise of their jurik
diction, much less to make the rules of
decision, prevalent in any one court, obliga-
tory upon others, exerciaing a distinct juris-
diction, or binding upon the courts of the
states when acting within the bounda of
their respective jurisdictions. In fact,
while courts of admiralty undoubtedly wars
expected to administ«r justice according to
the law of nations and the customs of the
sea, they were left at liberty to lay hold
of common-law principles where these were
suitable to their purpose, and even of ap-
plicable stat« statutes, just as courts of
common law were at liberty to adopt the
rules of maritime law as guides in the
proper performance of their duties. This
eclectic method had been practised by ths
courts of each jurisdiction prior to the Cob-
stitutlon, and there is nothing In that
Instrument to constrain them to abandon
it.
The decisions of this court show that the
courts of admiralty in many matters are
bound by local law. The doubt expressed
by Mr. Justice Bradley in Butler v. Boston
ft S. 8. B. Go. 130 U. S. 627, 668, S2 L. ed.
1017, 1024, 9 Sup. Ct. Rep. 612, as to wheth-
er a state law could have force to create
a liability in a maritime case at all, was
laid aside in The Corsair (Barton v. Brown)
146 U. S. 335, 36 L. ed. 727, 12 Sup. Ct. Rep.
049, and definitely set at rest in The Hamil-
ton (Old Dominion S. S. Co. v. Gilmore)
207 U. 8. 39S, 404, 68 L. ed. 204, 209, 28
Sup. Ct Rep. 133. The fact ts that, long
before Butler v. Boston ft 8. S. S. Co., It had
lieen recognlted that state laws might not
merely create a liability in a maritime case,
but impose a duty upon the admiralty courta
of the United States to enforce such lia-
bility. Thus, while it was recognized that
by the general maritime law a foreign ship,
or a ship in a port of a state to which she
did not belong, was subject to a suit In remn
in the admiralty for repairs or nec«ssarisa,||
ths ease of a ^ip in a (port of her honn*
state was governed by the municipal law of
the states and so lien for r
■L*:r„*'^"c^ic
8T SUPREME COUBT REPORTER.
Ooi. Tkui,
■uiM wouM b* Implied nnlesa racognized
by Uist lav. Tbe General Smitb (1B19) 4
Wheat. 436, 443, 609, Oil; The LotUnatiiia
(Bodd V. HearU) 21 Wall. 668, 671, 678, 22
1. ed. 054, «60, 663. CoiiTeraelj, it w«b hold
tn the caae of Pejroux t. Howard (1833)
7 Pet 324. 341, B L. ed. 700, 706, that a
libel in rem in the admiral^ might be main-
tained against % \eatt\ for repairB done in
her borne port where a local etatuU gave a
lian in such a ease. To titt same effect.
The J. E. Rumbell, 146 U. 6. 1, 12, 37 L. ed.
34G, 347, 13 fiup. Ct Rep. 4SS. Aa elB«-
where pointed out herein, where a atate
atatute conferred a lien operative strictlj
in ran, tt was nniformly held not enforce-
able in the state conrts, but onljr because
It treodied upon the peculiar Jurisdiction
ot the admiralty, and therefore waa not a
"common-law remedy" within tbe saving
elauee of the Judiciary Act of 1788. The
Moses Taylor, 4 Wall. 411, 427, 431, 18 L.
ed. 3S7, 400, 402; The Hiue *. Treror, 4
WaU. 656, 671, 672, IB L. ed. 46], 466; The
Belfiiat, 7 Wall. 624, B44, 10 L. ed. 266, S72-,
American S. B. Co. t. Chase, 16 Wall. 622,
633, 21 L. ed. 369, 372; The Glide, 167 U.
B. 606, 623, «S L. ed. 296, 302, 17 Sup. Ct.
Rep. 030.
Under these decisions, and others to the
•ame effect, the substance of the matter is
that a state may, by statute, create a right
to a lieu upon a domeatio Teasel, in the
nature of a maritime lien, which may be
enforced in admiralty in tbe courts of the
United States; but a state may not confer
upon its own courts jurisdiction to enforce
Buch a lien, because the Federal jurisdiction
In admiralty is exclusive. The J. K Rum-
bell, 14B V. S. 1, 12, 37 L. ed. 346, 347, 18
Bup. Ct. Eep. 4BB, and cases cited. But
a lien imposed not upon the rem, but upon
defendant's interest in the res, qar l>e
made enforceable in the state courts.
Bounds V. Cloverport Foundry ft Macb. Co.
237 U. S. 303, 307, 59 L. ed. 066, 968, 36
Sup. Ct. Rep. 506, and cases cited.
The Roanoke, 189 U. S. 186, 194, 196, 47
I* ed. 770, 772, 774, 23 Bup. Ct. Rep. 401,
while approving The General Smith, Pey-
roux T. Howard, The Lottawanna, and The
J. E. Rumbell, supra, gave a negative au-
« swer to the very different question whether
«i a state could, without encroaching upon the
* Federal Jurisdiction, create a lien 'against
foreign vessels to be enforced in the oourta
of the United States.
In the present case there la no question
of lien, and, I repeat, no queetion concern-
ing the jurisdiction of tbe state court; tbe
emcial inquiry is, to what law was it bound
to conform In rendering ita decision t Or,
rather, tbe question is the narrower one;
Do the Constituticm and laws of the United
States preTcat a state court of common law
trom applying the state statutes in an ac-
tion in peraonam arising upon navigable
water within the state, there lieing no ad
of Congress applicable to the controversy!
I confeaa that until this caae and kindred
cases submitted at the same time wers
brought here, I never had supposed that It
was open to the least doubt that the reeer-
Tation to auitors of the right of a common-
law remedy bad the effect of reserving at tha
same time the right to have their common-
law actions determined according to tbe
rules of the common lav, gr state statutes
modifying those mies. This court repeated-
ly has so declared, at the same time recog-
nising fully that the point involves the ques-
tion of state power. In United States t.
Bevans, 3 Wheat. 336, 388, 4 L. ed. 404,
416, tbe court, by Mr. Chief Justice Mar-
shall, said: "Can the cesaion of all cases
of admiralty and maritime jurisdiction be
construed into a cession of the waters on
which those cases may ariseT This is a
question on which tbe court is incapable of
feeling a doubt. The article which describes
tbe judicial power of the United States is
not intended for the cession of territory or
of general jurisdiction. It is obviously de-
signed for other purposes. ... In de-
scribing the judicial power, the framers of
our Constitution had not in view any cession
of territory, or, which is essentially tbe
same, of general jurisdiction. It is not
questioned that whatever may be neccsaary
to the full and unlimited exercise of admi-
ralty and maritime jurisdiction is in the
government of iiit Union. Congress maye
pass all laws which are necessary audJt
proper for giving'tbe moat complete effect*
to this power. Still, the general jurisdie-
tion over the place, subject to this grant of
power, adberes to the territory, aa a por-
tion of the sovereignty not yet given away."
In American S. B. Co. t. Chase, 16 WalL
622, 633, 21 L. ed. 300, 372, tbe court, by
Mr, Juatice Clifford, said (p. 634) : "State
statutes, if applicable to the case, eonstituta
the rules of decision in common-law actions,
in the circuit courts as well as in the stata
In Atlee r. Northwestern Union Packet
Go. 21 Wall. 389, 396, 306, 82 L. ed. 619,
621, tbe court, by Mr. Justice Miller, said:
"The plaintiff has elected to bring hia suit
in an admiralty court, which has jurisdio-
tion of the case, notwithstanding the con-
current right to sue at law. In this court
the course of proceeding is in many respects
different and the rules of decision are dif-
ferent. . . . An important difference as
regards this caae is tha rule for eatimating
the damages. In the common-law court
the defendant muat pay all the damagea or
,A_.OOglC
leis.
SOUTHERN PACIFIC CO. t. JBNSEST.
noua. If U)«re hka bean on the put of
plaintiff* luch cftrclMineu or wuit at ikill
M the common law would esteem to be con-
tributory negligenee, they caji recover noth-
ing. Bj the rule of the admirftlty court,
where there hu been such cootributory neg-
ligence or, in other wordi, when tioth hare
been In fault, the entire dameges resulting
fram the collision must be equally divided
between the perties. ■ . ■ Each i
its own set of rules lor determining these
questions, which may be in some respects
the same, but in others vary materleUy."
And see The Mu MorTis, 137 U. S. 1, 10,
34 L. ed. 5SB, 6SS; Belden v. Chaee, 160 U.
8. 674, 601, 37 L. ed. 1218, 1E24, 14 Sup.
Ct Sep. 2es ; Benedict, Admiralty, g 201.
In the prevailing opinion, great stresi
li laid upon certain ezpresaions quoted from
The Lottawanna (Rodd v. Heartt) 21 Wall.
ESS, 674. 22 L. ed. 664, 661 ; but it seems to
me they have been misunderstood, because
read without regard to context and subject-
matter. That was an admiralty appeal, and
*• involved the question whether, by the gen-
e«eral maritime law, as accepted in the United
* States, there was an Implied lien for'neces-
■aries furnished to a vessel in her home
port, where no such Hen was recognlced by
the municipal law of the state. In the
course of the discussion, the court, by Mr.
Justice Bradley, said: "That we have a
maritime law of our own, operative through-
out the United States, cannot be doubted.
The general system of maritime law which
was familiar to the lawyer* and statesmen
of the country when the Constitution was
adopted was most certainly Intended and re-
ferred to when It was declared in that in-
■trument that the judicial power of the
United States shall extend 'to alt ease* of
Admiral^ and maritime jurisdiction.' But
by what criterion are we to ascertain the
precise limits of the law thus adopted I TAe
ConMtitvtion ioet not de^tM it. It does not
declare whether it waji intended to embrace
the entire maritime law as expounded in the
treatises, or only the limited and restricted
^•tem which was received in England, or
lastly, such modification of both of these a*
was accepted and recognlied as law In this
country. Hor doe* (Ae Oonttitvtion attempt
to droio the boundary line tietu'een maritime
laid and local tav>/ nor does it lay doicn any
orilerion for OMtrtaining that boundary.
It assume* that the meaning of the phrase
'admiralty and maritime jurisdiction' is
well understood. It treats this matter as it
does the cognate ones of common law and
•qnlty, when it speaks of 'cases in law and
•quitj/ or of 'suit* at common law,' mtJiaul
teaming fhoas temu, aaMmin^ tAen to be
fasMOM «*d undentood."
In tUa language thara la the eleareat
recognition that the ConBtitution, In eatiA-
lishing and distributing the judicial power,
did not intend to define substantire law, or
to make the rules of decision in one juris-
diction binding propria vigor* in tribunal*
exercising another jurisdiction. The court*
of common law were to administer justice
according to the ctKumon law, the courts of
equity according to the principles of equity,
and the courta of admiralty and maritime —
jurisdiction according to the maritime law.J
The axpreesion on page S75 respecting the *
uniform operation of the maritime law wa*
predicated only of the operation of that law
aa administered in the courts of admiralty,
for it is not to be believed that there was
any purpose to overrule Atlee t. Nortb-
weatern Union Packet Co. 21 Wall. 380, 396,
22 L. ed. 619, 621, decided at the same term
and only about two months before The
I-ottawanna by a unanimoua court, including
Mr. Justice Bradley himself. In which it was
held that where there was concurrent juris-
diction In the courts of common law and
the courts of admiralty, each court was at
liberty to adopt ita own rules of decision.
Moreover, the principal question at issue
in The Lottawanna wa* whether the case of
The General Smith, 4 Wheat. 438. 4 L. ed.
609, should be overruled, in which it had
been held that, in the absence of state legis-
lation imposing the lien, a ship was not sub-
ject to a libel in rem in the admiralty for
Tcpalra furnished in her home port. The
general expressions referred to relate to that
state of the law, — the absence of state legis-
lation, aa well a* of legislation by Congre**,
— and upon this the decision in The Gen-
eral Smith was upheld [p. 678). But in
proceeding to discuss the subordinate quas-
whether there was a lien under th*
state statute, it was held (p. C80) : "It
I be aettled in our jurisprudence
that BO long aa Congress does not inter-
pose to regulate the subject, the rights of
materialmen furnishing necessaries to a
vessel in her home port may be r^ulated in
eaoh state by atate leglalation." And again
(p. 681): "Whatever may have been the
origin of the practice, and whether or not
it was based on the soundeat principle*, it
became firmly settled, and It is now too late
to question its validity, ... It would
undoubtedly be far more satisfactory to
inlform law regulating such liens,
but until such a taw be adopted (supposing
Congre** to have the power) the authority
of the state* to legislate on the subject
seems to be conceded by the uniform courset*
of decisions." ]
in Workman t. New York, 17B U.*
B. 662, 46 L. ed. 314, 21 Sup. Ct. Rep. 21S,
which, Ulce The Lottawanna, was a proceed'
ing In admiralty, the court, In qsotlng tha
,A_.oogle
BM
S7 SUPBBMX COUBT KEPORTEB.
Oct. Tebh,
declamtloni contained in that ease rwpect-
Ing the general operation of the maritime
law throughout the navigable waters of the
United Statee, was dealing only with its ap-
plication in the courts of admiraltjr. ThLa
la plain from what was sail as a preface to
the discuBaiau (p. 667) : "In examining the
firat quettian, that U, whether the local law
of New York must prevail, though in conflict
with the maritime law, it must be borne in
mind that the issue is not — aa was the case
la Detroit v. Osborne (1S0O) 13fi U. S. 492.
M L. ed. 280, 10 Sup. Ct. Rep. 1012,—
whether the local law gorems as to a con-
troveraj arising in the courts of common
law or of eqnitf of the United States, but
does the local law, if in conflict with the
maritime law, control a court of admiralty
of the United States in the adminiatration
of maritime rights and duties, although
Judicial power with respect to such subjecta
has been expressly conferred b; the Consti-
tution (art. 3, 5 2) upon the courts of the
United States."
In the argument of the present case and
companion cases, emphasis was laid upon
the importance of uniformity in applying
and enforcing the rules of admiralty and
maritime law, because of their effect upon
interstate and foreign commerce. This, in
my judgment, Is a matter to be determined
by Congress, Concurrent juriadiction and
optional remedies in courts governed by dif-
ferent aystema of law were familiar to the
framers of the Constitution, as they were to
English -speaking peoples generally. The
judicial clause itself plainly contemplated
a jurisdiction concurrent with that of the
state courts in other controversies. In such
» ease, the option of choosing the juris-
diction is given primarily for Uie beneSt of
suitors, not of defendants. For extending
it to defendants, removal proceedings are
2 the appropriate means.
31 Certainty there is no greater need for uni-
* formity ot/iadjudi cation tn cases such as the
present than in casea arising on land and
affecting the liability of interstate carriers
to their employees. And, although the Con-
stitution contains an express grsnt to Con-
gress of the power to regulate interstate and
foreign commerce, nevertheless, until Con-
gress had acted, the reaponaibility of inter-
state carriers to their employees for injuries
arising in interstate commerce was con-
trolled by the laws of the states. This was
because the subject was within the police
power, and the divergent exercise of that
power by the states did not regulate, but
VBly incidentally affected, commerce among
Hit states. Sherlock v. Ailing, 93 U- S. 99,
IIM, 23 L. ed. 819, B20; Second Employers'
UabilllT Oases (Uondon t. New York, N.
H. A H. K. Co.) 223 D. 8. 1, 114, 68 L. ed.
327, 347, 38 L.R.A.(N.5.) 44, 32 Sup. Ct
Rep. IBB, 1 N. C. 0. A- 878. It required an
act of Congress (Act of April 22, 190S, 35
Stat, at h. 65, chap. 149, Comp. Stat. 1916,
g 66S7) to Impose a uniform measure of
responsibility upon the carriers in such
casea. So, it required an act of Congress
(the so-called Carmack Amendment to the
Hepburn Act of June 29, 1906, 34 Stat, at
L. 684, 605, chap. 3S91, Comp. Stat, 93 8563,
S604a, SG04aa) to impose a uniform rule of
liability upon rail carriers for losses of
merchandise carried tn Interatate commerce.
Adams Exp. Co. v. Croningcr, 226 U. S. 491,
S04, 67 L. ed. 314, 319, 44 L.R.A.(N.S.) 267,
33 Sup. Ct. Rep. 146. In a great number
and variety of cases state laws and policies
incidentally affecting interstate carriers in
their commercial operations have been sus-
tained by this court, in the absence of eon-
Itictlng l^slation by Congress. Among
them are: Laws requiring locomotive engi-
neers to be examined and licensed by th«
state authorities (Smith v. Alabama, 124 U.
S. 465, 482, 31 L. ed. 603, G13, 1 Intera.
Com. Rep. 804, 8 Sup. Ct. Rep. 564) ; re-
quiring such engineers to be examined for
defective eyesight (Nashville, C. ft St L.
R. Co. *. Alabama, 128 U. S. 90, lOO, 32 L.
ed. 362, 364, 2 Inters. Com. Hep. 238, 9 Sup.
Ct. Rep. 28) ; requiring telegraph companies
to receive despatches and transmit and
delivery them diligently (Western U. Teleg.
Co. r. James, 162 U. S. 650, 40 L. ed. 1105,
IB Sup. Ct. Rep. 834) ; forbidding the run-
ning of freight trains on Sunday (Hennlng-
ton V. Georgia, IflS U. 6. 299, 304, 308, etc
41 L. ed. 166, 169, 170, IB Sup. Ct Rep.
1086) ; regulating the heating of psssenger»
cars (New York, N. H. * B. B- Co. v. NewJ
York, 165 U. e.'fl28, 41 L. ed. 863, 17 Sup.'
Ct Rep. 418) ; prohibiting a railroad com-
pany from obtaining by contract an exemp-
tion from the liability which would haw
existed had no contract been made
(Chicago, M. ft St P. B. Co. v. Solan, 189
U. S. 133, 136, 137, 42 L. ed. 688, 691, 692,
18 Sup. Ct. Bep. 289) ; a like result arising
from rules of law enforced in the stat«
courts in the absence of statute (Pennsyl-
vania B. Co. V. Hughes, 101 U- S. 477, 488.
491, 48 L. ed. 268, 272, 273, 24 Sup. Ct Rep.
132) ; statutes prohibiting the transportOi-
tion of diseased cattle in interstate com-
merce (Missouri, K. ft T. B. Co. v. Haber, 169
U. S. 613, 630, 636, 42 L. ed. 878, 884, 885.
18 Sup. Ct. Bep. 488; Beid v. Colorado, 187
U. 8. 137, 147, 161, 47 L. ed. 108, 114. 115,
23 Sup. Ct. Bep. 92, 12 Am. Grim. Bep.
600) i statutes requiring the prompt
settlement of claims for loss or damage
to freight, applied incidentally to inter-
state ccanmerce (Atlantic Coast Llm
R. Co. T. Maninky, 216 U. B. 122. 54 L. ad.
A^^OOglC
BOUTHEHN PACIFIC CO. t. JENSEN.
641
411, SO Snp. Ct. Sep, ST8) ; even aince the
pUBoge of the Carmsek Ammdnieiit
(MiBMuri, E. * T. R. Co. v. HanriB, 234
U. S. 412, 417, 4E0, 68 L. ad. 1377, 1381,
13S2, L.K^.1B1SB, 942, S4 Sup. Ct Eep.
790) ; aUtut«* regulating the ehttrafiter of
he&dlights used on locoraottvei anplo^ed In
Interatate commeroe (Atlantia Coaat Line
R. Co. V. Georgia, 234 U. B. £80, B8 L. ed.
1312, 34 Snp. Ct Rep. 829; Vandttlia R. Co.
r. Public Service Commission, 242 U. S. 2GB,
61 L. ed. 276, 87 Sup. Ot Bep. 93). An theae
cMea affected the responsibiltj of Interatate
earriert. Until now. Congress has paased no
act concerning their reeponaibilitj for per-
■onal Injuries sustalacd by passengers or
■trangers, or for deaths resulting from snch
Injuries, to that these matter! still remain
iubjeot to the regulation of the several
states. We have held recently that even the
anti-pasB provision of the Hepburn Act (34
SUt at L. 584, 685, chap. 3601, i 1, Oomp.
Stat. 1915, g 9603) does not deprive a party
who accepts gratuitous carriage in inter-
state commerce with the consent of die
carrier, in actual but unintentional viola-
Hon ol the prohibition of the act, of the
benefit and protection of the law of the
state imposing upon the carrier a duty
to care for his safety (Southern P. Co. T.
Schuyler, 227 U. S. 601, 018, 67 L, ed. 062,
609, 43 LJt,A.(N.S.) 001, S9 Sup. Ct Rep.
S77).
In the very realm of navigation, the an-
B thority of the state* to eetabliab regular
j| tions efFeetive within their o^ia borders, In
* the absence of exclusive I^slation by Con-
gress, has been recognized from the begin-
ning of our goTemment under the Consti-
tution. As to pilotage r^ulationi, tt was
recognized by the first Congress (Aet of
August 7, 178B, chap. 0, 8 4, 1 Stat at L.
S3, 64, Rev. Stat, g 423S, Comp. Stat 1010,
I 7901), and this court. In many decisions,
haa sustained local regulations of that ehar-
aeter (Cooley ▼. Port Wardens, 18 How.
SOB, 320, 13 L. ed. 090, lOOS; Pacific Mail
a S. Co. V. Jollffe, 2 Wall. 450, 469, 17 L.
•d. 806, 807; Ex parte McNIel, 13 Watt.
236, 241, 20 L. ed. 024, OZS; Wilson v. Mc-
Namee, 102 U. 8. 672, 26 L. ed. 234; Olsen
r. Smith, 166 U. S. 332, 341, 40 L. ed. 224,
SS9, 29 Sup. Ct. Rep. 62; Anderson v.
Pacific Coast S. S. Co. 226 U. S. 187, 105,
Ve L. ed. 1047, 1061, 82 Sup. CL Kep. 626).
It is settled that a etate. In the absence
of eonfltcting legislation by Congress, may
Miutruct dams and bridges across navigable
■treams within its limits, notwithstanding
an interference with accustomed navigation
Bay result Wilson v. Black Bird Greek
Hardi Co. 2 Pet 246, 262, 7 L. ed. 412,
414; Oilman v. Philadelphia, 8 Wall. 713,
18 L. ed. 06; Pound v. Tnrek, 06 U. S. 4S0,
S4 L. «d. 626; Escanaba & L. H. Transp.
Co. V. Chicago, 107 U. S. 078, 683, 27 L.
ed. 442, 445, 2 Sup. Ct. Rep. 185; Cardwcll
V. American Blver Bridge Co. 113 XJ. B.
206, 208, 28 L. ed. 069, 900, 6 Sup. Ct Sep.
423; Hamilton v. Vicksburg, S. & P. R.
Co. 110 U. S. 280, 30 L. ed. 393, 7 Sup.
Ct. Sep. 206; Willamette Iron Bridge Co.
V. Hatch, 126 U. S. 1, 8, 31 L. ed. 620,
831, 8 Sup. Ct. Rep. 811; Lake Sbore ft M.
S. R. Co. V. Ohio, 105 U. S. 366, 41 L. ad.
747, IT Sup. Ct Rep. 357; Manigault v.
Springs, 109 U. 5. 473, 478, 60 L. ad. 274,
277, 26 Sup. Ct Rep. 127.
So, as to harbor improvementa (Hohile
County V. Eimball, 102 U. S. 691, 697, 26
L. ed. 238, 230) ; Improvements and obstruo-
tions to navigation (Huse v. Glover, 110
U. S. 643, 648, 30 L. ed. 4ST, 490, 7 Sup.
Ct. Rep. 313; Leovy v. United States, 177
U. 5. 621, 625. 44 L. ed. 014, 916, 20 Sup.
Ct Rep. 707; Cummings v. Chicago, 188
U. S. 410, 427, 47 L. ed. 626, 630, 23 Snp.
Ct Rep. 472); inspection and quarantine
laws (Gibbons v. Ogden, 9 Wheat. 1, 203,
6 L. ed. 23, 71); wharfage charges (Keo-
kuk Northern Line Packet Co. t. Keokuk,
06 U. 8. 80, 24 L. ed. 377; Cincinnati, P.
B. 8. ft P. Packet Co. v. (3atletUburg, 106
U. S. SSe, 563, 26 L. ed. 1169, 1171; Park-
ersburg ft O. River Transp. Co. v. Parkers-
burg, 107 U. 8. 601, 702, 47 L. ed. 684,
586, 2 Sup. Ct. Bep. 732; Ouachita ft M.
River Packet Co. v. Aiken, 121 U. S. 444,
447, 30 L. ed. 976, 977, 1 Inters. Com. Rep.
370, 7 Sup. Ct Rep. 907) ; tolls for the
use of an Improved waterway (Sands T.
Manistea River Jmprov. Co. 123 U. S. £88,
eOB, 31 L. ed, 140, 161, 8 Sup. Ct. Rsp. 113).
; of provisions fixing the tolls for
transportation upon an interstate ferry
(Port Richmond ft B. P. Ferry Co. v. Hud-
eon County, 234 U. S. 317, 331, 68 L. cd.^
1330, 1330, 34 Sup. Ct. Rep. 821), or upoaM
veesels plying *between two ports located
within the same state (Wilmington Transp.
Co. v. Railroad Commission, £36 U. S. 161,
166, 59 L. ed. 608, 617, P.U.R.1B15A, 846,
36 Sup. Ct Rep. 276),
In each of theae cases, ^cept the las^
which related to intrastate transport, tha
stata regulation had an incidental efFect
upon the very conduct of navigation in tn-
terstata or foreign commerce. If in such
cases tha states possess the power of regu-
lation In the absence of inconsistent action
by Congress, much more clearly do thef
possess that power where Congress is Silent,
with respect to a liability which arises
but casually, through the accidental injury
or death of an employee engaged in a mar-
itime occupation.
Indeed, with respect to Injuries that ra-
mlt in death, it already Is settled that al-
,A_iOOglC
S7 SUPREME COUBT BZFORTEB.
Oct. Tebk,
tkongli the generftl muitlnia law, Iflc* th«
coomiou Uv, afforded no civil ronedj for
4«ath hy wroDgtul wt (Tba Harrieburg,
119 U. 8. Ifig, 30 L. ed. 3S8, 7 Sup. Ct. Bcp.
140; The Alukn, 130 U. S. 201, 200, 32 L.
«d. »23, 925, B Sup. Ct. Kep. 461), jet »
right of action created \)J atatute ia enforce-
able in a etate court although tlie tort wai
committed upon navigable wat«r (American
8. B. Co. T. Chase, 18 Wall. 622, 633, 21
I* ed. 36B, 372 1 Sherlock v. Ailing, 93 U. 8.
99, 104, 23 L. ed. SIS, 820), and the lia-
bility arising out of a atata statute in auch
a case will be recognized and enforced in
the admiraltj' (The Hamilton (Old Domin-
ion S. 8. Co. V. Gilmore) 207 U. 8. 3B8, S2
L. ed. 264, 28 Sup. Ct. Rep. 133), although
not by proceeding in rem nnlees the statute
azpreBslj' ereatea a liea (The Coraair {Bart-
on V. Brown) K5 U. S. 336, 347, 36 L.
•a. 727, 731, 12 Sup. Ct. Rep. 949).
In Sherlock v. Ailing, supra, which was
an action In a state court and based upon a
state statute to recover damages for a
death by wrongful act occurring in inter-
state navigation, it was contended that
the statute could not be applied to cases
where the injury was caused by a marine
tort, without interfering with the exclusive
regulntion of commerce vested In Congress.
The court, after declaring that any r^ula-
tion by Congress, or the liability for its
infringement, would be fficclusive of state
authority, proceeded to aay, by Mr. Justice
« Field (93 U. 8. 104) : "But with reference
e!| to a great variety of matters touching the
* rights and liabilities of persons engaged in
commerce, either as owners or navigators of
vessels, tiie laws of Oongress are silent, and
the laws of the state govern. The rules for
the acquisition of property by persons en-
gaged in navigation, and fm Its transfer
and descent, ar^ with some exceptions, those
prescribed by the state to which the vessels
belong; and it may be said, generally, that
the l^islation of a state, not directed
against commerce or any of its regulations,
but relating to the rights, duties, and lia-
bilities of citieens, and only indirectly and
remotely affecting the operations of com-
merce, is of obligatory force upon citizens
within its territorial jurisdiction, whether
on land or water, or engaged in commerce,
foreign or interstate, or in any other pur-
suit. In our judgment, the statute of In-
diana falls under this class. Until Congress,
therefore, makes some regulation touching
the liability of parties for marina torts
resulting in the death of the peraona in-
jured, we are of opinion that the statute of
Indiana applies," etc.
I deem The Hamilton, supra, to be a eon-
trolling authority upon the question now
presented. It was there held, not only that
the oonstitutional grant of admiralty jti-
riadiction, followed and construed Iqr the
Judiciary Act of 1789, leaves open the
common-law jurisdiction of the state oourts
over torts committed at aea, but also that
it leaves the states at liberty to change the
law respectii^ suck torts by legisla^on,
as by a statute creating a liability for
death by wrongful act, which was the par-
ticular l^slatfon there in question.
To what extent uniformity of decision
should result from the grant of jurisdiction
to the oourts of the United States con-
current with that of the state courts is a
subject that repeatedly hsa been under con-
aideration in this court, but it never has
been held that the jurisdictional grant re-
quired state courts to conform their de-a
cisioDS to those of the United States courts. Sj
The doctrine clearly 'deducihle from the*
cases is ttiat. In matters of commercial law
and general jurisprudence not subject to
the authority of Congress, or where Con-
gress has not exercised its authority, and
in the absence of state l^alation, tlie Fed-
eral courts will exercise an independent
judgment and reach a conclusion upon con-
siderations of right and justice generally
applicable, the Federal Jurisdiction having
been establbhed for the very purpose ot
avoiding the influence of local opinion; but
that where the state has l^islated. Its will,
thus declared, is binding, even upon the
Federal courts, if it be not inconsistent
with the expressed will of Congress respect-
ing a matter that is within its constitution-
al power. The doctrine concedes as much
independence to the courts of the states as
it reserves for the courts of the Union.
Burgess v. Seligman, 107 U. 8. 20, 33, 34,
27 L. ed. 369, Sas, 2 Sup. Ct Bep. 10; East
Alabama R. Co. v. Doe, 114 U. S. 340, 3(3,
29 L. ed. 136, 140, S Sup. Ct. Rep. 869;
Qibson v. Lyon, 116 U. 8. 439, 446, 29 L.
ed. 440, 442, 6 Sup. Ct Bep. 120; Ander-
son V. SanU Anna. US U. 8. 366, 362,
29 L. ed. 633, 036, « Sup. Ct Rep. 413;
Baltimore & O. B. Co. v. Baugh, 149 D. 8.
308, 372, 37 L. ed. 772, 77S, 13 Sup. Ot
Bep. 914; Foltom v. Township 96, 169 U.
S. 611, 626, 40 L. ed. 278, 283, 16 Bup. Ct
Rep. 174; Stanly County r. Coler, IBO U.
S. 437, 444, 47 L. ed. 1126, 1131, 23 Sup.
Ct. Bep. 811; Euhn v. Fairmont Coal Oo.
215 U. 8. 349, 367, 3S0, C4 L ed. 226, 233^
234, 30 8np. Ct Bep. 140.
In Baltimore & 0. R. Co. v. Baugh, 149
U. 8. 36fi, 372, 37 L. ed. 772, 775, 13 Sup.
Ct. Bep. 914, the oourt had under review
the judgment of a circuit oourt of the
United States in an action by a locomotive
fireman injured through n^ligenee of tha
engineer. The cause of action aroaa In ths
stato of Ohio, and tha fnestlaai prsMntad
A-iOO^IC
tou.
SOUTHEJBN FACUIC CO. t. JBNBEN.
WM wh«4lMr tlie rafiaeer «nd tli« flremi
mra fallow aeiTuit*. Usder Uie daciBioiiB
of the Ofalo MMirta tbqr w«re, bnt thU eonrt
baU that, a* tltara vaa no atAta aUtuta,
the fxatlon ahonld not bo trea^vd aa
fMatUm of locftl Uw, to be aattlad by i
•Kunln&tloa msrelr C^ tba decblona ol ths
ateta eonrt of Iftat rcaort, but ahould ba de-
tanniiied upon gancTal princlplM! tha courta
of tka United Stataa being under an obligft-
tlan to exercise ta independent judgment.
0 nie aovrt, bjr Mr. Juitlee Brewer, aaid
8 (149 n. 8. 878) : "Tbere la no question as
■ to*tlw power of the atatea to legielate ud
(dunge Uie mica of the eommon lew in Uila
reapect, aa in others', but. In the abaenee
at raeh legleUtion, the question la one de-
terminable only by the general princlplee of
that law. Further than that, it U « quee-
tion in whieh the nation aa a nbole ia In-
tereated. It eatera into the commerce of the
country. Commerce between the atatee Is
a matter of national regulation, and to ea-
tablish It as such was one of tba principal
eausee which led to tlu adoption of
Constitution."
In other words, the general tfect of the
question upon interstate commerce rendered
It one of tJie class that called for tlie ap-
plication of general principles; nererthe-
leaa, state legielation would be controlling-
fa the absence of Talid Ic^lation by Con-
gress, of eonrse.
In Chicago, U. t St. P. R. Co. v. Solan,
169 U. 8. 133, 138, 137, 42 L. ed. 688, SSI,
092, 18 Snp. Ot. Ttep. 280, the doctrine was
eoncisely stated by Mr. Justice Qray, speak-
ing for the court, as follows (1S9 U. S.
136) : "The question of the right of a rail-
road corporation to contract for exemption
from liability for its own negligence ia, in-
deed, like otiiar questions affecting its lia-
bility aa a common carrier of goods or
passengera, one of those questfons not of
merely local law, but of commercial Uw or
general jnrtBprudence, upon which this
oonrt, in the abseuoe of express statute
r^ulatlng the subject, will exercise its own
Judgment, uncontrolled by the decisions of
the courts of the state In which the cause
of action arlaea. But the law to be applied
ia none the lees the law of the atate, and
may be changed by its l^ielature, encept so
far aa restrained by the Constitution of
the state or by the Conatitution or laws of
the United Statea."
I freely ooneede the authority of Congress
to modify the rules of maritime law so
far as they are adminlstn^ In the Federal
•ooriv, and to make them binding upon tbe
H eonrta «f the atat^ so far as they affect
ij Interatate or International relations, or reg-
* i^tm "eommeree with fordgn*natlons, and
tmmt tto anena sUtea, and witik tha In-
dian tribea." What I contend la that tha
Constitution doea not, proprlo vigore, im-
pose the maritime law upon the states ex-
cept to the eKterat tbni. the admiral^
jurisdiction was exclusive of the courts ot
common law before the Confltitutioni th*t
la to aay, In the prise Jurisdiction, sad the
peculiar maritime proeees in rem; and that
as to civil actions In personam baring a
maritime origin, the courts of the states
are left free, except aa Cougress, by legisla-
tion passed within Its legitimate epbere of
action, may control them; and that Con-
grees, so far from enacting legislation of
this character, has from the beginning left
the atate courta at liberty to apply their
own systems of law in those cases where^
prior to the Constitution, they had con-
current jurisdiction with the admiralty, for
the saving clause in the Judiciary Act Deo-
esaarily has this effect.
Surely it cannot be that tha mere grant
of judicial power in admiralty cases, with
whatever general authority over the sub-
ject-matter can be raised by impUoation,
can, in the absence of legislation, have a
greater effect In limiting the legislative
powers of the statea than that whieh r^
suited from the eapreat grant to Congress
of an authority to regulate interstate com-
merce,— the limited effect of which, in the
absence of Ic^slation by Congress, we al-
ready have seen. The prevailing opinion
properly holds that, under the circumstancea
of the ease at bar, although plaintiff in
error was engaged in interstate commercet
and the deceased met his death while em-
ployed in such commerce, the provlaioua of
the Federal Employers' Liability Act (April
2e, leoS, SO Stat. at L. 06, chap. 149, Comp.
Stat. 1S16, I 8057) do not apply, because
they cover only railroad operations and
work connected therewith, whereas the de-
ceased was employed upon an ocean-going
ship. In effect it holds also that, in the
absence of applicable legislation by Con-
gress, thu express grant of authority to
r^ulate such commerce, as contaioed inn
the Constitution, does not exclude the opera- ^
tion of the*ltate law. It seems to me a*
curious inconsistency to hold, at the same
timc^ that the rulea of the maritime law
exclude the operation of a state statute
without action by Congrees, although tha
Constitution contains no express grant of
authority to establish rules of maritime law,
and the authority must be implied from the
mere constitutional grant of judicial power
over the subject-matter; and most remark-
able that this result ia reached in the face
of the fact that the Judicial power in cases
of admiralty Jurisdiction has been put into
effect by Congress subject to an espreea
reaervatlon of the previous c
,A_.OOglC
S7 BUPREUE COURT REFORTEB.
Oct. :
risdiction of the court* of law over actioni
of this character. This, besides ignoring
ths reservation, gives a greater potency to
an implied power than to a power eipreaslj
conferred.
The effect of the preseDt deeision cannot
logicaU;r be confined to eases that arise in
Interstate or foreign commerce. It leems
to be Uiought that the admiralty jurisdic-
Uon of the United States haa limits coex-
tensive with the authoTity of Congress to
regulate commerce. But this is not tme.
The civil jurisdiction in admiral^ in eases
ex contractu is dependent upon the subject-
matter; In cases ex delicto it is dependent
upon loealltT'. In cases of the latter cIbhs,
If the cause of action arise upon navigable
waters of tLe United States, even though it
be upon a vessel engaged in eonunerce
wholly intrastate, or upon one not engaged
In commerce at all, or (probably) not upon
any vessel, the maritime courts have ju-
risdiction. The Genesee Chief v. Fltzhugh,
12 How. 443, 452, 13 L. ed. 1058, 1062; The
Commerce (Commercial Traosp. Co. v. Fiti-
hugh) 1 Black, 574, 678, 67B, 17 L. ed.
107, 109) The Belfast, T Wall. 624, G36,
638, 640, IS L. ed. 266, 280-271; Ex parte
Boyer, 100 U. S. 620, 632, 27 L. «d. 1056,
1067, 3 Sup. Ct. Rep. 434; R« Gamett, 141
U. S. 1, 15, 17, 35 L. ed. 831, 634, 63f "
Bup. Ct Rep. 840. It results that if the
eonstitutionsl grant of judicial power to
the United Stata in eases of admiralty
and maritime jnrisdietion is held by
Slerencs to make the rules of decision that
prevail In the court* of admiralty binding
• proprio vigore upon*state courts exercising
a concurrent jurisdiction In cases of mar-
itime origin, the effect will be to deprive the
several states of their police power over
navigable waters lying wholly within their
respective limits, and of their authority
to regulate their intrastate commerce so
far as It is carried upon navigable waters.
The following additional consideration Is
entitled to great weight: The same Judi-
dary Act which, in its 8th section, conferred
upon the district court* of the United States
original cognizance of civil causes of ad-
miralty and maritime Jurisdiction, saving
to suitors in all cases the right of a common-
law remedy where the common law Is com-
petent to give it, in It* 2Sth section allowed
a writ of error from this court to review
the final judgment or decree of a state
court of last reeort resulting from a de-
cision overruling any special claim of right,
privilege, or exemption based upon the con-
struction of any clause of the Constitution
or statutes of the United States. By later
legislation the review was broadened (Act
of February S. 1887, chap. 28, 3 2. 1* Stat.
at L. 306, 386, g 70S, Rev. Stat., | 237, Ju-
dicial Code, 36 Stat, at L. 1156, chap. 231,
Comp. Stat. 1910, 1 1214), and by recent leg-
islation the writ of certiorari has been sub-
stituted for the writ of error to nnmy cases
(Act of September 6, ISie, chap. 44B, 3S
Stat, at Li. 726, Comp. Stat 1016, | 1207).
But, at all times, the right to review in
this court the decisions of the state courts
upon questions of Federal law has existed,
so that if, by the true construction of art.
3, g 2, of the Constitution, or of S ^ of the
Judiciary Act of 1786, it had been the right
of parties suing or sued in state courts
upon causes of action of a maritime nature
to Insist that their cases should be de-
termined according to the rulea of decision
found In the law maritime, this right or
immunity might have been asserted as a
Federal ri^t, snd its dmial made the
ground of a rcrview of the reaultJing judg-
ment, under a writ of error (or, now, a
writ of certiorari) from this court to the^
stata court of Isst resort. Yet, nntilM
the present eas^ and others Eubmitted*at the
same time, the reported decision* of this
court show not a trace of any such question
raised. I can conceive of no stronger er-
idence to prove that from the foundatloa
of the government until the present time
it has been the opinion of the bar and of the
judiciary, in the state courts as well as in
the courts of the United States, that it was
not the right of parties suing or sued in
state courts of law or equity upon causes
of action arising out of maritime affairs, to
have them decided according to the prin-
ciples that would have controlled the de-
elsion had the suits been brou^t In the
admiralty courts.
There is no doubt that, throughout the en-
tire life of the nation under the Consti-
tution, stats courts not only have exercised
concurrent jurisdiction wiUi the courts of
admiralty in action* ex oontractu arising
out of maritime transactions, and in actions
ex delicto arising upon the navigable water*,
but that. In exercising such jurisdiction,
th^ have, without challenge until now,
adopted as rules of decision their local laws
and statutes, recognizing no obligation of
a Federal nature to apply the law maritims.
State court* of last resort, in several re-
cent cases, have had occasion to consider
ths precise contention now made by plain-
tiff In error, and upon full oossideration
have rejected It. Lindstrom v. Mutual B.
S. Co. 132 Minn. 328, LJt.A.lSlSD, S3S,
166 N. W. 6B9; North PaciSc S. S. Co. v.
Industrial Acci. Commission, — CaL — > 163
Pae. 199; Eennerson v. Thames Towbokt
Co. 89 Conn. 367, 373, LJl.A.19ieA, 436, 04
Atl. 372. See also Walker t. Clyde 8. 8.
Co. 216 N. Y. 029, 631, 109 N. B. «(M, Anm.
Cas. 1016B, 87; Jensen v. Southern P. Oa.
A^^OOglC
leic.
CLYDE S. a CO. r. WALEBB.
u»
21S H. Y. 61*. L.R.A.1916A, 403, IM
N. B. eOO, Ann. Cm. 1916B, 87Q, B N. C. a
A. 2BS (thU cue). I have found do caw to
ths contrarj except a daciaion by tha United
States district court for the northern dis-
trict of Ohio in Schuede *. Zenith S. 8. Co.
214 Fed. 666, noir under ooDBideration by
this court. The reasoning is unsatisfactory,
tnd it was repudiated in Eeithley t. North
PaciSc 8. S. Co. 832 Fed. 260, 259.
S I may remark, in dosing, that there Is
Sno conflict* between the New York Work-
men's Compensation Act and the acta of
Congress for limiting the liabiiity of ship-
owners (Rer. Stat. g3 1283-4286, Comp.
Stat. 1916, gg S021-8023; Act of June 26,
1684, chap. 121, S IS, 23 Stat, at L. C3, 07,
Comp. SUt. leie, SS TTOT, 8028). Bo long
■■ the aggregate liabilities of the owner,
tncliiding that under the New York law,
do not amount to as much as the interest
of the owner in the vessel and freight pend-
ing, the act of Congress does not come into
play. Where It does apply, It reduces all
liabilities proportionally, under whatever
law arising; the liability under the New
York law along with the others. Butler
T. Boston k S, S. 8. Co. ISO U. S. 527. 552,
0E8, 32 L. ed. 1017, 1022, 1024, 9 Sup. Ct.
Rep. el2; The Hamilton (Old Dominion
8. S. Co. V. Gilmore) 207 U. S. 398, 406,
B2 L. ed. 264, 270, 28 Sup. Ct. Rep. 133;
Richardson t. Harmon, 222 U. S. SB, 104,
105, S6 L. ed. 110, 113, 114, 32 Sup. Ct. Rep.
27.
Mr. Justice Brandels end Ur. Justice
Clarke concur in the disaent, both upon the
grounda stated by Mr. Justice Holmes and
vpon those stated by Mr. Justice Pitney.
WILLIAM ALFRED WAIKEB,
This case is governed by the dedsioo In
Bouthern Pacific Company v. Jensen, ante,
S24.
[No. 281.1
Argued February 2S, ISIS. RestoTed to
docket for reargument November 13,
J916. Reargued January 31 and Febru-
ary 1, 1B17. Decided May 21, 1B17.
IN ERROR td the Supreme Courts Appel-
late Division, Third Department of tlie
State of New York, to review a judgment,
•firmed hy the Court of Appeals of that
state, approving an award by the state
Workmen's Compensation Couunlsalon to a
longshorttnan Injured oo an octan-goisff
17 S. C— M.
steamship. Reversed knd remanded for
further proceedings.
See same case in oonrt of appesls, UK
N. Y. 02S, lOB N. B. 604, Ann. Cas. I&ISB,
87.
The facts are stated In the opinion.
MeserB. Norman B. Beecher and Ray
Hood Allen for plaintiff In error.
MeBsrs. G. Clarence Aiken, Earcdd J.
Hinman, and Mr. Eghurt E. Woodbury, At-
torney Qeneral of New York, for defendant
In „,o,. ,
* Mr. Justice H6R«ri>olds delivered tilt?
opinion of the court:
Purporting to proceed under the Work-
men's Compensation Law of New Yoric
(Consol. Laws, chap. 67), the StaU Com-
mission on September 3, 1914, made aa
award to defendant in error. Walker.
It found ;
"1. William Alfred Walker, a elaimanti
is a longshoreman, residing at IGl West
133d street. New York city. Prior to July
1, 1914, he was employed In the dty of New
York 1^ the Clyde Steamship Company for
longshore work. He was injured on July
1, 1914, while In the empby of the Clyde
Steamship Company as a longshoreman.
"2. Ths Clyde Steamship Company is &
corporation organized and ezisUng under
the laws of Maine, wheie it has its prin-
cipal ofBce. It abo has an office at Pier
38, North river.
"3. Durbg the discharge of the Cberokea
and at the time of the accident, the claim-
ant was on board the eteamahip Cherokee,
owned and operated by the Clyde Steamship
Company. During tiie year prior to the
accident, Walker had been employed from
time to time by the Clyde Steam^p Com-
pany and could have been aaeigned to work
upon the pier. The Cherokee was, at the^
time of the accident, moored to and alongu
side Pier 37, North'river, New York cit^
lying in navigable waters of the Hudson
river. Said pier is leased by Clyde Steam-
ship Company from the city of New York.
"4. While claimant was hooking the rope
of a derrick Into a load of lumber in the
between decks of said vessel, for the pur-
pose of unloading it from that veesel, bis
hand was jammed against the lumber, re-
sulting in laceration ol the second finger
of the left hand. Claimant was disabled by
reason of the injury from July 1, 1914, to
July 22, 1914, retoming to work upon the
latter date.
"0. The buslneae of the Clyde Steamship
Company in this state consists solely ot
carrying passengers and merchoniUse to
Kew York from other states, and carrying
passengers and merchandise from New York
to other states. All cargo on board tk»
v*^iOOglC
tl 6D7HSMX OOUBT REPORTER.
CStuekM, Including tba lumber aforeMid,
had been taken on board in tha itata ot
Kortk CarelinB, and carriod by iratar to
lf«w York, and WM thort imloadod from
tlM Htaamahlp CbaroliM. The claimant was
wgaged BOlelj in handling eaid Inmber.
"S. The InjoTf »aa an accidental injury
and aroM out of and in the couree ol tha
amploTment of claunant hj the Cljde
BtwBihip Companj. The injuiy did
result aolely from the Intoxication of the
Injured empires while on duty, and wM
not oecaaioDed by the wllfnl Intention of
the Injured employee to bring about the In-
jury or death of himielf or another.
*7. The average weekly wage of didmant
was $17.30."
Without opinion the appellate division af-
firmed the award, and thi« action waa ap-
proved liy the court of appeale. 216 N. ¥.
S2», 109 N. S. 604, Ann. Caa. lOlBB, 87.
In Southern P. Co. v. Jenien, juet de-
cided DM4 U. B. SOS, 61 L. ed. — , ST Sop.
CL Bep. 624], we conridcred and dlapoeed of
tha tnndamental queatlou here involved, nie
legislature exceeded its authority in at-
tempting to extend the statut« to conditions
like those which the record diecloaea.
S The judgment of the court belov must
?be reversed andtthe cause remanded for fur-
ther proceedings not inconsiitent with our
opinion In the former case.
[No. 121.]
Argued February 29 and March 1, WW.
Restored to docket for Kargument No-
vember 13, lOlS. Reargued tibniMrj 1,
1917. Decided May 81, 1917.
IN ERROR t« the Supreme Court, Appel-
late Division, Third Judicial Depart-
ment, of the State of New York, to review
a judgment, affirmed by the Court of Ap-
peals of that state, approving an award
of the state Workmen's Compensation Com-
mission to ft railway employee injured with*
out the carrier's fault while engaged in ln<
terstate commerce. Bevcraed.
See same case heioiir In appellate division,
188 App. Div. 351, 153 N. Y. Supp. 480;
in court of appeals, 216 N. Y. 284, 110 N.
B. 014, Ann. Caa. lOlSA, 817, 10 N. C. a
A.91S.
The facts are stated In the opiuion.
Messrs. Prank V. Whiting, Robert B.
Whalcn, William L. Visscher, and H. Le-
roy Austin, for plaintiff in error.
Messrs. E. Clarence Aiken, Harold J.
Hlnman, and Sir. Egburt E. Woodbury, AU
tomey General of New York, for defendant
Dissenting! Mr. Justice Holmen, Ur.
Justioe Pltner, Mr. Justice BnuadeUi and
Ur. JusUee Olarkn.
HEW YORK CENTRAL RAILROAD COM-
PANY, Plff. in Err,
JAHES WIN7IELD.
OoinfXRCB «=>&(6) — CoifTUcmg State
AHD FiDKKAI. I^OISLATIOn — FTDBnAL
DKPT.OTXBB' liiaBiLnT Act — Stats
WOBEUEICB OoMPBRSATIOIf AOT.
The Botira nihjeet of the liability of
interstate railway carriers for the death
or injury of their employees while em-
ployed by them In Interstate commerce Is
■o completely covered by the provisions of
the Federal Employers* LUblUty Act of
April 22, 1908 (3S SUt. at L. «fi, ehap.
14e,Oomp. Stat, leie, li 86S7-eQ6S), aa tnpr»
vent anv award under the New York Work-
men's Compensation Act (N. Y. Laws 1913,
diap. 814; Laws 1914, ohaps. 41, 316),
where an employee was injured or killed
without fauH en the railway company's
part while ha was engaged in Interstate
asBmeroe, althoogh the Federal act gives
the right of recovtcy only when the Injury
iSr. Justice Tan Dersnler delivered the
opinion of the court:
While in the service of a railroad com-_
pany In the state of New York, James Win-^
field sustained a persMial injury* whereby*
he lost the use of an eye. At that time tha
railroad company waa engaging In Inter-
state commerce as a common carrier and
WInfield was Mnployed by it in such com-
merce. The injury was not due to any fault
or negligence of the carrier, or of any of Ita
officers, agents, or employees, but arose out
of one of the ordinary risks of the work in
which Winfleld was engaged. He was a eeo<
tion laborer assisting in the repair of th*
carrier's main track, and while tsimping
across ties struck a pebble which chanced
to rebound and hit his eye. Following the
Injury he sought compensation therefor from
the carrier under the Worlcmen's Compen-
sation Law of the stated and an award waa
made to him by the state Commission, on*
member dissenting. The carrier appealed
and the award was affirmed by the appellat*
division of the supreme court, two judges
dissenting (169 App. Div. 351, 163 N. T.
Supp, 499), and also by the court of appeala
le topic * KET-NUMBBR m all Ker-Nan««r*d Dtswti * Indsi
I«l«.
NEW YOB£ CENTRAL R. 00. t. WINFIEUl.
H7
(Me N. Y. 284, L.RJL.— > — , 110 N. E. 814,
Ann. Cm. l&iaA, 81T, 10 N. C. C. A. 916).
Before the Commisrion and in the state
oonrta tlie carrier laeleted tbat its Ihbilit;
or obllgatlmi and the cmplojee'i right were
goTemed ecclueiTely by the Employen' Lia-
bility Act of Congreii (chap. 14S, 3fi Stat.
at L. 69, Comp. Stat. ISIS, | 866T; cliap.
143, 3S Stat, at h. 261), and therefore that
no award could be made under the law of
the state. Tliat insietence ie renewed hercu
It is eettlcd that nnder the commeroe
•iause of the ConstltntioQ Congees majf
regulate the obligation of common carrien
and the rights of thetr employees arising
out of injuries eustained hj the latter where
both are engaged in intaatate commerce;
and it also Is settled that when Congrees
acts upon the subject all state laws cover-
^iog the same field are necessarily superseded
^t^ reasim of the supremacy of the national
• aatbority.B Congress acted'upon the sub-
ject in passing the Employers' Liability Act,
and the extent to whioh that act covers the
field is the pdnt In controversy. By one
aide it Is said that the act, although regu-
lating the liability or obligation of the car-
rier and the right of the anployee where
the injury results in whole or in part from
DSgligeace attributable to the carrier, does
net cover injuries occurriDg without such
negligence, and therefore leave* that class
of injuries to be dealt with by state laws;
and by the other side it is said that the act
covers both classes of injuries and is ex-
dnsivB aa to both. The state deciaions upon
the point are conSicting, The New York
court in the present case and the New
Jersey court fn Winfleld v. Erie R. Co. 88
N. J. L. 610, M AtL SB4, hold that the act
relates only to injuriea resulting from n^H-
gence, while the California court in Smitli
V. Industrial Accl. Commission, 26 Cal, App,
S60, 147 Fac 600, and the niinola eourt in
etaley v. Illlnola C. R. Co. 268 IlL 366,
L.R.A.1916A, 460, 100 N. E. 342, hold that
It has a broader scops and makes negllgenee
a test, — not of the applicability of the act,
bnt of the carrier's duty or obligation to
respond pecuniarily for tlie Injury.
In onr opinion the latter view is right
and the other wrong. Whether and in what
eircumstancea railroad oompanles engaging
■ Second Employers' LlaUli^ Cases
(Mondou V. New York, N. H. & H. R. Co.
223 U. S. 1, 53-65, 68 I* od. 327, 347, 348,
Oo. T. Hasterlr, 228 U. S. 702, 67 L. ed.
1031, S3 Sup. Ct. Rep. 703; St. Louis, B. F.
* T. K. Co. V. Seale, 229 U. S. 166, 67 L. ed.
11S9, 33 Sup. Ct. Rep. 051, Ann. Gas. 10140,
lUi l^ylor V. Taylor, 232 U. 8. 363, 68 L.
•d. •», t4 Sup. Ct. Rep. 350, « N. a C. A.
in interstate eommere* shall be required to
compensate thnr employees in such ewn-
merce for injuries sustained therein are Oiat-
ters In lAich the uatiim as a whol'> is
interested, and there are weighty oonalderar
tions why the controlling law should be uni-
form and not change at every state liiM>
Baltimore £ O. R. Co. r. Bangh, 149 U. &
368, 878, 370, 87 L. ed. 772, 777, 778, IS
Sup. Ct. Rep. 014. It was largely in recog-
nition of this that the Employers' LlabU-
ity Act was enacted by Congress. Second
Employrare' Liability Cases (Mondou r. New
York, N. E. & H. R. Co.) 223 U. 6. 1, 51, 66
L. ed. 327, 346, 38 L.RA.(N.8.} 44, 32 Bup.^
Ot Bep. 160, 1 N. C. C. A. S7B. It waaS
drafted and passed ehortly* following a mes-*
eage from the President advocating am ade-
quate national law covering all such Inju-
ries, and leaving to the action of the several
states only the injuries occurring in intra-
state employment Cong. Beo., 60th Cong,
1st Bess., 1347. And the reporU of the
congreaaiMial ooounittees having the bill
in charge disclose, without any uncertainty,
that it was int«ided to be very eomprehen-
sive, to withdraw all injuriee to railroad
employees in interstate commerce from the
operation of varying state laws, and to ^-
ply to them a national law having a unifonn
operation throu^out all the states. Honss
Report No. 1386 and Senate Report No. 460,
00th Cong. 1st Seaa. Thus, in the Hoose
Beport it is said: 'It [the biU] is Intended
in ita scope to cover all eommerce to whiek
t^e regulative power of Congress extendi.
... by thla bill It Is hoped to fix a uni-
form rule of liability throu^out the Unloa
with reference to the liability of oommon
carriers to their employees. ... A Ted*
oral statute of this character will supplant
the numerous state statutes on the subjeot
ao far as they relate to Interstate commercak
It will create uniformity throu^out the
Union, and the l^al status of such emplt^-
er*! liability for personal Injuries, instead
of being subject to numerous rules, will be
fixed by one rule in all the statea"
True, the act does not require the car-
rier to respond for injuriea oeeurring where
It is not chargeable wtth n^lgence, but this
is because Congress, in its discretion, acted
upon the principle that eompensation should
436; dilcago, R. L & P. R. Co. *. Dsrln^
239 D. & S2, 60 L. ed. 140, 36 Sup. Ct. Rm.
27; Tnas Jt P. B. Ca v. lUgaby, 241 U. B.
38, 41, 60 L. ed. 874, 878, 36 Sup. CL Bep.
482; Kortham P. B. Oo. v. Washington, US
U. S. S70, 66 L. ed. 237, 32 Sup. Ct Bep.
160; Erie R. Co. v. New York, 233 U. a 671,
A^K~)Oglc
ST 0UPHBME COUST REPORTEE.
Oor.
TlBtli,g
bt caacUd trom th* oarrW vben, uid onl7
vheiA tlie injury rcndta from neglig^ence
in^ratable to It. Sverj part ot tbe act eon-
torma to this principle, and no part poinU
to Bjij pnrpoaa to leave tlie itatei tree to
requin MmpaaBation where tbe act with-
lioldi It. By declaring in g 1 that the carrier
■ball ba liabU In damages for any injury to
the employee "reeulting in whole or in part
Mfrom tiie negligence of any of the officers,
ragcnta, or emplojeee of snch carrier,*o
reason of any detect or ingufficiency, dne
to ite nc^igence. In its cars, enginee, ap-
pliances, machinery, track" [35 Stat, at L.
66 chap. 149, Comp. Stat. 1916, S BSST],
ete.,1 the act plainly ihows, aa was expreu-
ly held in Seaboard Air Line R. Co. t. Hor-
ton, 233 U. S. 4D2, 601, 6B I^ ed. 1062, 1QG8,
L.R.A.1B15C, 1, 34 Sup. Ct. Rep. 635. Ann.
Ca>. 191SB, 47S, 8 N. a C. A. 834, that it
waa the intention of Congreag to make negli-
gence the basis of the employee's right to
damages, and to exclude responsibility of
the carrier to the employee for an injury
resulting from its negligence or that of its
ofBcers, agents, or other employees. The
tame principle is leen also In g 3, which
requires that where the carrier and the
ployee are both negligent, the recovery shall
be diminished In proportion to the em
ployee' s contribution to the total negli
gencBj and in S 4, which regards injurie
arising from risks assumed by the employee
as among those for which the carrier should
not be made to respond. Iha committee re-
ports upon tha bill show that this piini
was adc^ted deliberately, notwithstanding
there were those within and without the
eommittees who looked with greater favor
upon a different principle which puts negli
gence oot ot view and regards the employee
as entitled to compensation wherever the
injury Is an Incident ot the service in which
he is employed. A few years after the pas-
sage ot the act a legislative commission
drafted and the Committees on th« Judic-
iary in the two Houses of Congress favorably
reported a bill substituting the latter prin-
ciple for the other (Senate Report No. 663,
02d Cong., 8d SesB., House Report No. 1441,
e2d Cong., 8d Sesa.), but that bUl did not
become a law.
That the act Is comprehensive and also
exclusive is distinctly recognized in repeated
decisions of this court. Thus, in Missouri,
K. ft T. R. Co. V. Wulf, 228 U. S. 670, 676,
S7 L. ed. 366, 363, 33 Sup. Ct Rep. 135,
Ann. Cae. 1914B, 134, and other cases, it
is pointed out that the subject which the
■ The act is printed in full in Second Em-
ployers* Liability Cases (Mondou ». New
York, N. H. ft h; R. Co.) 223 U. a 1, 6-10,
66 L. ed. 327, 329-331, 38 L.R.A.<N.S.) 44,
32 Sup. Ct. Rep. 169, 1 N. C. & A. 876.
act coveas Is '^e reqionsibllity of* inter-*
state cariiera 1^ railroad to thair employ-
ees injured In such commerce;" In Hlchlgaa
C. R. Co. V. Vreeland. 227 U. S. 69, 66, 67,
67 Ik ed. 417, 419, 4£0, 33 Sup. Ct. Rep.
192, Ann. Cas. 1B14C, 176, it is said that
"we may not piece out this act of Congress
by resorting to the local statutes of tbe
state of procedure or that of the injury;*
that by it "Congress has undertaken to
cover the subject of the liability of railroad
companies to their employees injured while
engaged in interstate couimerce," and that
it Is "paramount and eiclusive;" in North
Carolina R. Co. v. Zaehary, 232 U. S. £48,
266. 5S L. ed. 591, 594, 34 Sup. CL Rep. 305,
Ann, Gas. 1914C, 169, 9 N. C. C. A. 109, it
is held that where it appears that the in-
jury occurred while the carrier was engaged
and the employee employed in Interstate
commerce, the Federal act governs to tha
exclusion of the state law; in Seaboard Air
Line R. Co. v. Horton, supra, pp. 601, 603,
it Is said not only that Congress intended
"to exclude responsibility ot the carrier to
its employees" in the absence ot n^ligence,
but that it Is not conceivable that Congress
"intended to permit tha legislatures of the
several states to determine the effect of con-
tributory negligence and assumption of
risk, by enacting statutes tor the safety of
employees, since this would in effect relc^ta
to state control two ot the essential factors
that determine the responsibility ot the em-
ployer;" and in Wabash R. Co. v. Haynes^
234 U. S. 80, 89, 68 L. ed. 1226, 1230, 34
Sup. Ct. Rep. 729, 6 N. C. C. A. 224, it is
said: "Had the Injury occurred in Inter-
state commerce, as was alleged, the Federal
act undoubtedly would have been control-
ling, and a recovery could not have beat
had under the oonunon or stmtuto law of
the state; In other words, the Federal act
would have been exclusive In its <^eratIoi^
not merely cumuiativa [citing eases]. On
the other hand, if the injury occurred out-
side ot Interstate commerce, the Federal act
was without application and the law of the
state was controlling."
The act is entitled, "An Act Relating to
the Liability of Common Ckrriers by Bail-
road to Their Employees in Certain Casea,"
and the suggestion is made that the woniiS
"in'certain cases" require that the set bs?
restrictively construed. But we think these
words are intended to do no more than t«
bring the title Into reasonable accord wltk
tha body of the act, which dbcloses in (k-
act terms that it is not to embrace all casat
of injury to the employees ot such carriers,
but only such as occur while the carrier it
engaging and the employee Is employed in
"commerce between any of tha several
states, etc Bee Employers' Liabili^ Cases
.A^^OOglC
1B19.
NEW YORK CENTRAL R. CO. t. WINFIELD.
ua
(Hwird ». Illinois C. R. Q>.) 207 U. B.
463, 62 L. ed. £97, 28 Sup. Ct. Rep. 141.
Only hj dlaturbing the uniformity trhich
Aa *et IB designed to wcura uid bj depart-
ing from ttie prinicple which it ii intended
to enforce can the (everal itatea requirs
rach CKirieri to compenWite their aniplojeei
(or injuries in intentata commerce occui^
ring without negligence. But no stAte I*
&t liberty thus to interfere with the opera-
tion of * law of CoDgress. As before indl-
eated, it ii a miatake to rappoae that inju-
ries occurring without negligence are not
rM«hed or affected hj the act, for, aa ia
•aid in Prigs t- Pennsylranta, 16 P«t. 639,
617, 10 L. ed. 1000, 1089, "if Congreag have
a oonatitutimal power to regulate a par-
ticular subject, and thej do actually r^n-
lata it In a given manner, and in a certain
form, it aumot be that the atate legislature!
haTe a right to interfere; and, as it were,
l^ way of complement to the legislation of
Oongreas, to prescribe additional regula-
tions, and what they may deem auxiliary
provisions for the same purpose. In such
a case, the legislation of Congress, in what
it does prescribe, manitestly indicates that
It does not intend that there shall be any
farther legislaUon to act upon the subject-
matter. Ita silence as to what it does not
do la aa expresaive ol what iti intention is
as the direct provisions made by it." Thus
the act is as comprehensive of injuries oc-
eurring without negligesice, as to which
elaas it impliedly excludes liability, as It
fa of those aa to which it Imposea liability.
la other words, It Is a regulation of the
carriers' duty or obligation aa to both. And
Bthe reasons which operate to prevent the
• states from dispensing with oompensation
where the act requires it equally prevent
them from requiring compensation where
the act withholda or excludes it.
It follows that, in the present ease, the
award under the atate law cannot be sua-
tftinad.
Judgment reversed.
Mr. Justice Brandets, dtssentlngt
I dissent from the opinion of the court;
and the importance of tlie question involved
induces me to stats the reasona.
By the Employera' Liability Act of
April 82, 1008 [35 SUt. at L. 66, ohap.
149, Comp. Stat IBIS, | 8667], Congress
provided, in substance, Uiat railroads en-
gaged in interstate commerce shall be lia-
ble in damages for their negligence result-
ing in Injury or death of employees while
so cDgeged. The majority of the court
now holds that by so doing Congress mani-
fested its will to cover the whole field of
eompcnsation or relief for injuries Buffered
by railroad employees engaged in interstate
commerce; or, at least, the whole field of
obligation of carriers relating thereto; and
that it thereby withdrew the subject whol-
ly from the domain of state action. In
other words, the majority of the court de-
clares that Congress, by passing the Em-
ployeri' Inability Act, prohibited statet
from in eluding within the protection of
their general Workmen's Compensation
Laws employees who, without fault on th4
raHraad'w part, are injured or killed while
engaged in interstate commerce; althou^
Congress itself offered tbem no protection.
That Congress could have done this b clear.
The question presented is: Has Congres*
done so! Has Congress so willed 1
The Workmen's Compensation Law ot
New York here In queetion has been de-
clared by this court to be among those
which "bear so close a relation to thsu
protection of the lives and safety of those^
concerned that they p renter ly 'may bo re-*
garded as coming within the category d
police r^uiations." New York C. R. Co.
T. White, 24S U. 8. 188, 207, 61 L. ed. 867,
37 Sup. Ct. Rep. 247. And this court has
definitely formulated the rules which ahould
govern in determining when a Federal stat-
ute r^^ilating commerce will be held to
supersede state legislation In the exercise
of tiie police power. Hiese rules are:
1. "In conferring upon Cougrees the
regulation of commerce, it was never in*
tended to cut the states off from legislating
on all subjects relating to the health, lifc^
and safety of their citizens, though the
legislation might indirectly affect the eom-
merce of the country." Sherlock v. Ailing,
B3 U. S. 99, 103, 23 L. ed. 819, 820.
2. "If the purpose of the act cannot
otherwise be accomplished, — if its operation
within Its chosen field else must be frus-
trated and its provisions be refused their
natural effect, — the state law must yield to
r^ulation of Congress within the sphere
of Its delegated power. . . .
"But the intent to supersede the exercise
by the atate of ita police power as to mat-
ters not covered by the Federal legislation
is not to be inferred from the mere fact
that Congress has seen fit to circumscribe
its regulation and to occupy a limited field.
In other words, such Intent is not to bs
implied unless the act of Congress, fairly
interpreted, is in actual conflict with the
law of the state." Savage v. Jones, 22S U.
S. 601, 633, 66 L. ed. 1182, 1194, 3Z Sup.
Ct, Rep. 716.
3. "The question must, of course, he de-
termined with reference to the settled rule
that a statute enacted in execution of a
reserved power of the state is not to be
regarded as inconsistent with an act of
Congress passed in the execution of a clear
,A_^OOglC
>7 SUPaEMB COURT BSPORTEE.
Oct. Taw,
powM under tlie Conatitution, unleiB the
repugnance or conflict i* ao direct and posi-
tive that the two acts cannot be Teconcilcd
or stand together." Miasouri, K. & T. R.
Co. *. Haber, 160 D. S. 613, 623, 42 L. ed.
«87S, 881, 18 Sup. Ct. Sep, 4S3.
]£ Guided bf these rules and the eases I
'which thej have t>eeii*applied * we endeavo
|Bto determine whether Congress, in en&eting
• the EmployerB' Liabilitj Act, intended'to
* The tollowing cams show that Congreea,
in legislating upon a particular subject ol
Interstate conuneice, will not b« held to
have inhibited by implication the exercise
by the states □{ their reserved police power,
unless such state octiou would actnallj
frustrate or impair the intended operation
of the Federal legiBlatioo.
1. In Bligh T. Kirkwood, S3T U. B. 52, 92,
69 U td. 836, 839, 3S Sup. Ct Rep. 601,
it was held that the Federal Food and Drugs
Act, dealing, among other things, with ship-
ment in interstate commerce of fruit in
filthy, decomposed, or putrid condition, did
not prevent a state from penalizing the
shipment of citrus fruits "which sre imma-
ture or otherwise untit for consumption."
2. In Atlantic Coast Line R. Co. r.
Georgia, E34 U. 8. 280, 293, SS L. ed. 1312,
1318, 31 Sup. Ct. Rep. 820, it was held
that Congress did not, bj the passage of
the Federal Safety Appliance Acta, d^ing
with the equipment of locomotives, as well
■8 of cars, and the Act to Regulate Com-
merce, preclude the states from legislating
concerning locomotive headlighta, as to
which Congress had not spcd&call; acted.
3. In Miseouri, E. ft 1. R. Co. v. Harris,
S34 U. S. 412, 420, G8 L. ed. 1377, 1382,
LJIA.1915£, 042, 34 Sup. Ct. Sep. 7S0, It
was held that the Carmack Amendment (34
But. at L. &64, C95, chap. 3G91, Comp. Stat
1916, SS 8663, S6l}4a, SS04aa), regulating
the carrier's liability for loss of interstate
•hipments, did not prevent a state from pro-
viding for the allowance of a moderate st-
tom^s fee in a statute applicable both
In the eaas at interstate and intrasi '
tstate ship-
. In Savage v. Jones, Z2G U. 8. 601, fiZB,
es L. ed. 1182, 1193, 32 Bup. Ct Rep. TIB,
it was held that the passage by Congress
of the Food and Drugs Act of 1906, which,
n Missouri P. R. Co. v. Larobee Flour
Hills Co. 211 U. 8. 612, 623, E3 L. ed. 3S2,
361, 29 8np. Ct. Rep. 214, it was held that
Congress, by granting, in the Act to Regu-
late Commerce, power to the Interstate Com-
merce Commission to compel equal switch-
ing service on cars destined to interstate
commerce, did not, in the absence of the
exercise by the Commission of its power,
prohibit states from l^islating Mt toe sub-
e. In AsbeU v. Kansas, 200 U. S. SSI, £S7,
prevent state* from entering the speeifle^
field of compensation for injuries to em-M
ployees arising vnthout /ouEt'on the rail-*
rOEKfa part, tor which Congress made no
provision.
To ascertain the intent wa must lo<^
of course, first at what Congress has said;
then at the action it has token, or omitted
to take. We look at the words of the stat-
ute to see whether Congress has used any
G£ L. ed. 778, 731, 28 Sup. Ct Rup. 486, 14
Ann. Cos. 1101, it was held that Congress,
in providing that a eeitiScate of i^peo-
tion issued by the National Bureau of Ani-
mal Industry should entitle cattle to ba
shipped into any state without further in-
spection, did not prevent a state from peoal-
iKing the importation of cattle which had
not been inspected either by the Federal
Bureau or by designated state officials.
7. In Crosemon v. Lurmon, 192 U. 8. 189,
199, 48 L. ed. 401, 40G, 24 Sup. Ct Kep.
234, it was held that the Act of Congress
of August 30, 1800 (26 SUt at L. 414,
chap. 839, Comp. Stat 1916, S 8633), pro-
hibiting importation into the United States
of adulterated and unwholesome food, did
not prevent the states from legislating for
the prevention of the sale of articles of
food so adulterated, as come within valid
prohibitions of their statutes.
8. In Reid v. Colorado, 187 U. S. 137, 149,
47 L. ed. 108, 114, 23 Sup. Ct Rep. S2, IS
Am. Crim. Rep. 608, it was held that Con*
gress, by making it an offense under the
Animal Industry Act for anyone to send
from state to state cattle known to be af-
fected with communicable disease, did not
prevent the states from penalicing the im-
portation of cattle without inepeetion hj
designated atate officials.
9. In Missouri, K. A T. R. Co. v. Haber,
ISO V. a. 613, 623, 42 L. ed. 878, 881, 18
Sup. Ct Rep. 488, It was held that the
Federal Animal Industry Act, making it a
misdemeanor for any person or corporation
to transport c&ttle known to be affected
with contagious disease, did not prevent a
state from imposing a civil liability fw
damages sustained by owners of domestie
cattle by reason of the importation of snek
diseased cattle.
10. In Smith T. Alabama, 124 U. 8. 4IU,
482, 31 L. ed. 608, C13, 1 Inters. Com. Bep.
804, 8 Sup. Ct. Rep. 664, it was held that
Congress did not hy the passage of the Act
to Regulate Commerce, prohibit the states
from enacting laws requiring perwms to
undergo examination before being permitted
to act as locomotive e — '
not, by the passage of many laws regulating
navigation, with a view to safety, and pro-
viding for liability in oerlAin cases pnK
hibit the application to an accident In navl<
gable waters of a slate of a itatnt* pivrid-
•ral Employers' Liability
[ding th
,A_.OOglC
SBW YORK CENTRAL H. CO. ». WINPIELD.
HI
wUd itt toniu expreu th&t will. Wi in-
qnlra whaUiar, wiUout ike dm of explicit
wvrd^ thAt will li ezpresMd in ■pecifls
ftctlon tklcen. For Congreu must ba pre-
■umed to have intended the ntettMAij etm-
eeqnenoea of ita utlon. And If we And
that iti will !• not expreaeed, or ia not
elearlj expreaied, either in worda or bj
•peeifle action, we ahould loolc at the dr-
enmitancGB under wbicli the Emplojera'
Uebilitj Act woe paaaed; look, on the one
hand, at iti origin, scope, and pnrpoaej
and, on the other, at the nature, methoda,
and meana of state Worlunen'a Compenea-
tion Lawa. If the will I* not elaailj as-
preased in words, we muet consider all these
In order to determine what Congreai in-
First: Aa to words naed: The act con-
tains no words ezpreating a will by Coq-
gresa to corer the whole field of compenea-
ticai or reUef for injuries received b^ or
for death of inch emplojees while engaged
in interatat* commerce; or the whole field
of carriers' obligation* in relation tbereto.
The language of that act, so far aa It indi-
cates an/thing In this reapeet, pointa to
just the contrarr- For Its title ia: "An
^Aet Rels.tiTe to the Liability of Common
■cCarriere by Railroad in Certain Caaee."*
■ * Second I As to qieoifle action taJcen:
The pown- exerclaed hj Congresa is not
such that, when ezerdBCd, it neeeitarUy
esciudea tbe atato action here nndar con-
■ideration. It wonld obviously have been
posaihle for CMigreaa to provide in temu.
tliat wherever such Injuries or death reanlt
from the railroad's n^ilgence, tbe ranedy
should be sought bj action for damages;
and wherever injury or death reaulta frot*
causes other than the railroad's n^ligenoa,
eompenaation may be aoo^t under th»
Worlcmen's Compensation I«wb of the
states. Between the Federal and the state
law there would be no conHict whatsoever.
Thej wonld, on the contrary, be compl*'
mantary.
Third: As to origin, purpose, and scope
of the Employers' Liability Act and the
nature^ methods,, and means of state Work-
men's Compensation I«wa: The facts ar*
of common Icnowledge. Do th^ manifest
that, by entering upon one section of the
field of indemnity or relief for injurisa or
death suffered by smployeea engaged In
interstate commerce. Congress purposed ta
occupy the whole field T
(A) The origin of the Federal Emplt^ar^
Liability Act.
By the common law as administered la
the several states, the employee, lllu vvery
other member of the community, was ex-
pected to bear the risks neceesarily attend-
■jit upon life and work, anbjeet only to tha
right to ba indemnified for any lose In-
flicted by wrongdoera, Hie employer. Ilk*
every other msmlier of the community, was
in theory liable to all others for lose re*
suiting from his wrongs; the scope of his
liability for wrongs being amplified by tha
doctrine of respondeat superior. This l^al
□ or statutory laws of the states
relating to the liability of railroads for
negligent injuries to their employees while
engaged In interstate commerce, are,
eourae, wholly consistent with the et
above r^erred to, the "field" of both I
vol and state lawa there under eonsidero*
B. Co. V. Wulf, 220 U. a. B70, 6711, ST L.
«d. 36S, S63, 33 Sup. Ct Rep. 135, Ann. Cos.
1914B, 1S4; Ulchigan C. B. Co. v. Vreeland,
22T U. a 09, «.«, 67 L. ed. 417, 410, 33 6up.
Ct. Rep. 1B2, Ann. Cas. 1914C, 176; St.
Louis, I. M. & 8. R. Co. t. Hesterly, 228 U.
& 702, 704, 67 L. ed. 1031, 1033, 33 Sup,
Ct Rep. 703; St. Louie, 8. F. 4 T. R. Co.
V. Seate, 220 U. S. 156, 57 L. ed. 1129, 3S
Sup. Ct. Bep. 651, Ann. Cas. 1914C, 166;
Taylor v. Taylor, 232 U. 8. 383, 3«8, 68 L.
•d. 638, 040, 34 Sup. Ct. Rep. 360, S N.
C. a A. 436; Seaboard Air Line R. Co. v.
Horton, 233 U. S. 492, 601, 68 L. ed.
1062, 1068, L.R.A,1916C, J, 34 Sup. Ct Rep.
636, Ann. Caa. 191&B, 476, 8 N. C. 0. A. 834;
Wabaah R. Co. v. Hayes, 234 U. S. 86,
SO, 58 L. ed. 1226, 1230, 34 Sup. Ct Bep.
7EB. 6 N. C. C. A. 224; Toledo, St L. A W.
R. Co. r. Slavin, 236 U. 8. 464, 468, 69 L,
ed. 671, 673, 36 Sup. Ct Rep. 306; St. Louis.
I. M. ft S. B. Co. V. Craft, 237 V. 8. 649,
69 L. ed. 1160, 35 Sup. Ct Rep. 704, 9 N.
C. C. A. 764; Chicago, R. I. ft P. R. Co. r.
Devine, 239 U. S. 62, 64, 60 L. ed. 14U, 142,
30 Sup. Ct Rep. 27; Chicago, B. I. ft P. R.
Co. V. Wright, 239 U. S. 648, 661, 60 L,
ed. 431, 434, 36 Sup. Ct Bep. 185; Seaboard
Air Line R. Co. v. Eenney, 240 U. S. 489,
493, 60 L. ed. TB2, 765, 36 Sup. Ct Rep. 458;
Osborne r. Cray, 241 V. S. 16, 19, 00 I*
ed. 865, 867, 36 Sup. Ct Rep. 486.
t The title of thfa act may be profitably
compared with that of the bill (not enacted)
prepared by the Employers' Liability and
Workmen's Ccmpeneation Commiaaion pur-
Buant to Joint Resolution No. 41, approved
June 26, 1910 (36 Stat at L. SS4), pr»-
Cing a Federal Workmen's Compensation
r, which reads: "A Bill to Provide an
Exclusive Remedy and Compensation for
Accidental Injuries Bsaulting in Dirability
or Death to Employees of Common Carriers
by Bailroad Enga^ in Interstate or For-
eign Commerce, or in the District of Colnm-
bia, and for other Purpoaes." (Sen. Doc
33S, p. 107, 62d Cong. 2d Seas.)
,A.^OOglC
«M
87 SXJPKEME (»UBT REPORTEB.
Oor. Tntif ,
Itebilitj, which, in Qteorj, applied between
«HDplo7*r Mid employee as well »« between
PothsT*, came, in course <rf^tiiii^ to be aerl-
«tid; impaired in practice. The protection
It provided emplofees seeroed to wane aa
Hm need for it grew. Three defences — the
doctrines of lellow lervant'e negligence, of
neumption of risk, and of contributory
negligence, rose and flourished. When ap-
plied to huge organizationB and hazardous
occupations, b« in railroading, tbey prso-
tically aboliehed the liability of employers
to employees; and in bo doing they worked
great hardship and ojipareut injustice. The
wrongs suffered were flagrant; the demand
(or redress insistent; and the effortc to se-
cure remedial legislation widespread. But
ths opponentB were alert, potent, and se-
curely entrenched. The evils of the fellow-
servant rule as applied to railroads were
' recognized «s early ae 1S66, when Georgia
passed the first law abolishing the defense.
Between the passage of that act and the
passage of the first Federal Employers' Lia-
bility Act (Act of June 11, 1906, 3i Stat.
at L. 232, chap. 3073), fifty years elapsed.
In those fifty years only four more states
had wholly abolished the defense of fellow
servant's negligence. Furthermore, in only
one state had a statute been passed making
recovery possible where the employee had^
been guilty of contributor7 negligence. ^
Meanwhile, tha*Qnniber of accidents to rail-*
road employees had become appalling. In
the year 1905-06 the number killed while
on duty was S,S07, and the number injured
66,624. T He promoters of remedial ac-
tion, unable to overcome the efBcient oppo-
sition presented in the l^slaturea of the
several states, sou^t and secured the pow-
erful support of the President.* CongressS
was appealed to and used ila power'jver*
interstate commeroe to afford relief. Ths
promotion of safety was, of course, referred
to In the committee's report as justifying
congressional action; but the moving cause
tor the Federal Employers' Liability Act
was not the desire to promote safety or to
secure uniformity, as to stsndardi^g
equipment by the Safety Appliance Acts.*
■ At the time the first Federal Employers'
Liability Act was passed the so-called com*
mon-law defenses remUned in force, in
large part, in moat of the states, as to rail-
road employees.
A. The fellow-servant rule. — (See com-
pilation of statutes in "Liability of Em-
ployers," Senate Hearings ISDS, pp. 183-
288; and In Senate Document No. 207, 60th
CtmgieK, 1st Session.)
(1) It had been completely aholished aa
lo railroad employees in only five states:
Georgia (1B5S), Kansas (1874), North
Carolina (1897), Colorado (1901), North
Dakota (1903).
(2) It remained In full force, or substan-
tially so, in twent^'flve states or territories:
Arizona, California, Connecticut, Delaware
Idaho, Illinois, Kentucky, Louisiana, Michi-
gan, Maine, Maryland, Nebraaka, Nevada,
New Hampshire, New Jersey, New Mexico,
Oklahoma, Pennsylvania, Rhode Island,
South Dakota, Tennessee, Vermont, Waah-
ington. West Virginia, Wyoming.
(3) In sixteen other states it had been
modified; abolished either as to certain
more dangerous kinds of work, or as to cer-
tain classes of employees: Alabama, Ar-
kansas, Florida, Indiana, Iowa, Massachn-
setts, Minnesota, Mississippi, Missouri, New
York, Oregon, South Carolina, Texas, Utah,
Virginia, Wisconsin.
(4) The passage of the first Federal act
Immediately stimulated further etate legis-
lation. Id 1007 the fellow-servant rule was
abolished as to railroads in Arkansas, Nev-
ada, Oklahoma, South Dakota; and largely
in California, Nebraska, Pennsylvania, and
Wisconsin.
B. Contributory negligence. — (See com-
pilations cited supra.)
(1) In all but one state there had been
no statutory change of the rule that con-
tributory n^ilgence constituted a eomplet*
defense. Georgia (1S96} liad aubstibitcd
the comparative-negligence doctrine. In
Kansas and Illinois early cases at oommoa
law seeming to apply this doctrine had been
repudiated. The common law of Tennessee
also contained some traces of the doctrine.
(2) During the vear following the paa-
sage of the flist Federal act, which adopted
the rule of comparative n^ligence, with
mitigation of damages proportionate to tb*
degree of plaintiff's negligence, several
states introduced this modification; Nebras-
ka, Nevada, North DakoU, Sonth Dakota,
Wisconsin.
C. Assumption of risk — (See the com-
pilation cited supra.)
The harshneas of this rule had been miti-
gated by statute or otber statutory action
Uken in only fourteen states: Alabama,
California, Colorado, Georgia, Massachu-
setts, Mississippi, New Mexico, New Yorlc,
NorUi Carolina, Ohio, Oregon, South Caro-
lina, Texas, Virginia. In 1907 Iowa abol-
ished the rule as to ouployees giving notiea
of a known defect.
1 See Report of Interstate Commerce Com-
mission for the year 1006. Summary of
Casualties, Table A, p. 161.
■ President's Messs^ges December 2, lOOSi
December 6, 1904; December S, IBOfi; Jano-
ary 31, 1908.
B Tbe following facts are eignlSeant as
showing that employers' liability was nob
deemed a factor in safe^ to employees or
tbe public, or a matter in which uniformity
WHS desirable, or as otherwise presenting a,
railroad problem:
(1) The Annual Reports of the Tnterstat*
Commerce Commission to Congress for tlw
eleven years ending December, 1808, deal
each year at large with accidents, casualtiea
to employees, and the promotion o{ safetr-
,A_.OOglC
Ul<.
NBW YORK CINTRAL R. CO. ▼. WINFIEUX
Hiere was. In tke nature of tbingg, no more
reasoii for providing t, Federal remedy for
■^ligent injury to employees, than there
would have b«cD for providing fluch a rem-
edy lor negligent injury to passengen or to
other members ol the publio. The Federal
Employer!' Idabtlity Act was, in * Bcnae,
• emergency legislation. The clrcumBtaucea
r attending its paBsage were Buefa as to pre-
clude the belief that thereby Congress in-
tended to deny to the Btatas the power to
provide for compensation or relief for In-
juries not covered by iU
(B) Hie K<^ of the Federal Employers'
LUbUity Act.
<1) The act leaves uncovered a large
part of the injuries which result from the
railroads' negligence. The decision of thii
court in the first Employers' Liability
Cases (Howard t. Illiaoia C. R. Co.) ZD7
U. S. 463, 62 L. ed. 297, 2S Sup. Ct. Rep.
141, had declared that Congress lacked
power to legislate In respect to any inju-
ries occurring otherwise than to employees
wngaged in interatate commerce. Later de-
cisions disclose how large a part of the
Injuries resulting from the railroads' neg-
ligence are thus excluded from the opera-
tion of the Federal law. For the act was
held to apply only to those directly en-
gaged In interstate commerce. This ex-
cludes not onty thoae engaged in intrastate
commerce, but also Oie many who— while
engaged on work for interstate commerce,
as in repairing engines or cars — are not
directly engaged in it. Lllcewlse it ex-
cludes employees who, though habitually
engaged directly in interstate commerce,
happen to be injured or killed through the
railroads' negligence, while performing
some work In intrastat* commerce. H
(2) The act leaves uncovered all of tlw
injuries which result otheraiaa than from
the railroad's negligence, though occurring
when the employee is engaged directly in
interstate commerce.
The scope of the act ii so narrow as to
preclude the belief that thereby CongresaJ
intended to deny to the states *the power?
to provide compensation or relief for tnju-
rlea not covrared by it.
(C) The purpose of the Employers' Uabil*
Ity Act.
The facta ahowlng tha origin and seopa
of the act discussed above indicate alao Ita
purpose. It was to end the denial of the
right to damages for injuries due to the
railroads' negligence, — a right denied un-
der judicial decisions through the interpo-
sition ol the defenses of fellow servant,
assumption of risk, and contributory negli-
gence. It was not the purpose of the act
to deny to the states the power to grant
(he wholly «*to right to protection or relief
in the caae of injuries suffered otherwise
than through fault of the railroads.
The Federal Employers' Ijability Act
was, in no respect, a departure from the
individualistic basis of right and of liabil-
ity. It was, on the contrary, an attempt
to enforce truly and impartially the old
conception of justice as between individu-
als. The common-law liability for fault
was to be restored by removing the abuses
which prevented its full and just operation.
The liability of the employer under tha
Federal act, as at common law, is merely
a penalty for wrongdoing. The remedy as*
sured to the employee is merely a more
niese reports contain numerous recom-
nen^tlons for legislation concerning safe-
ty applianees, hours of labor, block signals,
train control. Inspection, and accident re-
porting; but no recommendation or even
mention of employers' liability.
(S) The National Convention of Rail-
road Com in ia si oners, an association com-
prising the commisai oners of the several
states, is formed for the purpose of discuss-
ing and aiding in the solution of American
railroad problems. Likewise, in its reports
for eleven years ending October, 1908, no
referenca has been found, either in the an-
nual president's address, or In the report of
the committee on legislation, or in Uie dis-
cussions, to the subject of employers' lia-
bility; or any mention of the passage by
Congress of the two Employers' Liability
Acts, or of the decision of this court on the
first act.
The absence of such reference is partic-
ularly noteworthy in the legislative report
for the year 1908, pp. 218-233, which is
dsvoted to a consideration of harmonious
or uniform legislation. It contains a r^umS
of the legislation in Congress recommended
and supported by the National Convention
of Railroad Commissioners during a period
of nineteen years and attendances at con-
gressional hearings on safety appliances,
block signal, and hours of labor legislation.
10 Compare Illinois C. R. Co. v. Behrens,
333 U. S. 473, 68 L. ed. 1051, 34 Sup. Ct.
Rep. e46, Ann. Cas. 1914C, 163, 10 N. C.
C. A. 153; New York C. R. Co. v. Carr,
238 U. S. 260, 69 U ed. 12SS, 3S Sup. Ct.
Rep. 780, 7 N. C. C. A. 1; Delaware, L. *
W. R, Co. V. Yurkonis, 238 U. S. 438, 6»
L. ed. 13B7, 36 Sup. Ct. Rep. 002; Shank*
v. Delaware, L. k W. R. Go. 239 U. S. 558,
60 L. ed. 436, L.R-A.1916C, 797, 36 Sup. OL
Rep. 188; Chicago, B. & Q. R. Co. v. Har*
rington, 241 U. S. 177, 60 L. ed. 641, 3»
Sup. a. Rep. 517. 11 N. C. C. A. 992; Eria
B. Co. V. Welsh. 242 U. S. 303, 61 L. ed.
Sie, 37 Sup. CL Bep. 116; Raymond t. Chi-
cago, M. & StP.R. Co. 243 U. 8. 43, ei I^
ed. S8S, g7 Sup. CL Bep. 26&
A^iOOglC
' 664 "
S7 SUPBEUB COUBT RSPORXER.
Ooi. Tebu.
•ficlent meani af making flie wrongdoer
Indemnify him whom h« has wronged. This
limited purpose of tha Employers' Liability
Act precludes tha belief that Congress in-
tended thereby to deny to the states the
power t« provide compensation or relief
for injuriea not coTered by the act.
In the effort to remoTe abusea, a study
had been made of facts, and of the world's
experience in dealing with Industrial acci-
dents. Iliat study uncovered as fiction
many an assumption upon which American
Judges and lawyers had rested comfortably.
The oonriction became widespread that our
„ Individualistic conception of rights and lia^
gbility no longer furnished an adequate basis
• for deallug'with accidents in industry. It
was seen that no syetem of Indemnity de-
pendent upon fault on the employers' part
could meet the situation, even if the taw
were perfected and Its administration made
exemplary. For, in probably a majority
of cases of Injury, there was no assignable
fault; and in many more it must be im-
possible of proof. It was urged: Atten-
tion should be directed, not to the employ-
er's fault, but to the employee's misfortune.
Compensation should be general, not spo-
radic; certain, not conjectural; speedy, not
delayed: definite as to amount and time of
paymsnt; and so distributed over long pe-
riods as to insure actual protection against
lost or lessened earning capacity. To a
system malting such provision, and not
to wasteful litigation, dependent tor suc-
cess upon the coincidence of fault asd the
ability to prove it, society, as well as the
Individual employee and hia dependenta,
■nust look for adequate proteetltHi. Society
needs such a proteetimi as much as the
Individual ; because ultimately society
must bear the burden, financial and other*
wise, of the heavy losses which accidents
entail. And since accidents are a natural,
«nd in part an inevitable, concomitant of
Industry as now practised, society, which
is served thereby, should in some way pro-
vide the protection. To attain this end,
eo-operatlve methods must be pursued;
some form of insurance, — that la, some
form of taxation. Buch was the contention
which haa generally prevailed. Thus, out
of the attempt to enforce Individual jus-
tice grew the attempt to do social justice.
But when Congress passed the Employers'
Liability Act of April 22, 1808 [36 Stat,
at L. es, chap. 149, Comp. Stat. 1016,
S 865T], theae trutha had gained little rec-
ognition in the United States. Not one of
the thirty-seven statea or tarritorles which
now have Workmen's Compensatlm La<n
had introduced the system. Yet tha con-
ception and value of compensatioD laws
waa not unknown to Congress. It then had
under consideration the ftrat Compensatii»^
Law for Federal Employees which was en*
acted'ln the following month (Act of Hay*
1909, 3G Stat, at L. SSQ, eh^. 23S).
The need of its speedy passage had heea
called to the attention of Congreaa by the
President In the same special mesaage
which urged the pasaage of this Employers'
Liability Act.
Can it be contended that Congress, Iry
dimply passing the Employers' Liabili^
Act, prohibited the statea from providing
in any way for the maintenance of such
employees (and thdr d^>endenta) for whose
injuries a railroad, innocent of all fault,
could not be called upon to make indemnity
under that actT It is the state which it
both primarily and ultimately concerned
with the care of the Injured and of those
dependent upon him, even though the acci-
dent may occur while the employee Is en-
gaged directly In interstate commerce.
Upon the state falls the financial burden
of dependency, if provision be not otherwiae
made. Upon the state falls directly the
far heavier burden of the demoralizatioii
of it* citizenry and of the social unrest
which attend destitution and the denial of
opportuDl^. Upon the state also reata,
under our dual system of government, the
duty owed to the individual, to avert mis-
ery and promote happiness so far as possi-
ble. Sorely we may not Impute to Con*
greas the will to dMiy to the states tha
power to perform either this duty to hu-
manity or their fundamental dufy of self-
preservation. And If the states are leffe
free to provide compensation, what Is (here
in the Employers' Liability Act to show an
Intent on the part of Congreaa to deny to
them the power to make the provision by
raising the necessary oontributimi, in the
first instance, through employsrst
{E) Methods and means of Workmen's
Compensation Iaws.
The principle underlying Workmen^
Compensation Laws ia the same In all th»
states. The methods and means by which
that principle is carried out vary material-^
ly. The principle is tliat of Insurance, tlM§
premiums to which are contributed by em-*
ployers generally. Bow the Insurance fund
shall be raised and administered; what the
scale of compensation or relief aball be; how
tha contributing gronpa of employers diall
be formed; whether or not a state fund
shall be created; whether Oim individual ob-
ployer shall be permitted to beoome « aalf>
v.A^^OOglC
UI*.
KBW TOEK CKNTKAL R. CO. t. WINTXELD.
iBMmr; w1i«Ui«t be ahsill be permitted to
dMtl dlrectlv with the emplojee in mdciag
Mttlement of the conpeQS&tioii to be award-
•d; oa all theae questions the laws of the
Mraral atAtM do and prap«rljr nugr differ
rMlieallj.
What methods and meana the stato shall
adopt in order to provide coiapeosation for
injurie* to citizens or residents where Con-
greaa has left It free to legislatB rests (sub-
ject to constitutional limitations) wholly
within the judgment of the state. It might
conclude, in view of the hazard involved,
that no one should engage In the occupation
of railroading without providing against the
financial consequences of accidents through
contributing an adequate amount to an ac'
otdent insurance fund. It might conclude
that it was wise to make itself the neceuarj
(Mmtributions to such a fund, out of moneys
raised from general taxation. Or it might
conclude, as the state of Washington did,
that the fairest and wisest form of taxation
for the purpose was to impose upon the
employer directly the dnty of making
the required contributions, — relying upon the
laws of trade to effect, through the medium
of transportation charges, an equitsble dis-
tribution of the burden. The method last
suggested is pursued in substance also bj
the state of New York. In ita essence the
Uws of the states are the same in this re-
spect, as b shown in Uountsin Umber Co.
T. Washington, W3 U. S. 219, ante, 260, 37
Snp. Ct. tlep. 2S0. It is misleading to speak
of the new obligation of the employer to
cMitribute to compensation for injuries to
workmen as an increase of the "employer's
Uability." It fa not a liability for a vio-
-latlon of a dnty. It ia a direct— a primary
• —obligation In ths nature of a tax. And
• the right*of the employee is as free from
any suggestion of wrong done to him as tlie
Baw right granted by Mothers' Pension
lAWt.
The practical difflcnlty of determining In
a particular ease, aocording to presence or
absence of railroad fault, whether indem-
nity is to be sought under the Federal Em-
ployers' Liability Act or under a state com-
pensation law, affords, of eourse, no reason
tor imputing to CMigress the will to deny
to the states power to afford relief through
such a system. The difficulty and uncer-
tainty Is, at worst, no greater t^au that
irtiich now ezbts in so many cases where it
la neeessary to determine whether the em-
ployee waa, at the time of the acddent,
noised In Interstate or Intnutate eom-
merce. H Expedients for minimizing Inher-
ent diCBculties will doubtless be found by
experience. All the dilBculties may conceiT-
ably be overcome in practice. Or they may
prove so great as to lead Congress to repeU
the Federal Employers' Liability Act and
leave to the states (which alone can des]
comprehensively with it), the whole subject
of indemnity and compensation for injuries
to employees, whether engaged in interstate
or intrastate commerce, and whether such
injuries arise from negligence or without
fault of the employer.
We are admonished also by another
weighty consideration not to impute to Con-
gress the will to deny to the states this^
power. The subject of compensation forg
'accidents in industry is aae peculiarly iqh*
propriate for state legislation. There must,
necessarily, be great diversity in the condi-
tions of living and In the needs of the in-
jured and of bis dependents, according to
whether they realde in one or the other of
OUT states and territories, so widely extend-
ed. In a large majority of instances they
reside in the state In which the accident oc-
curs. Though the principle that compensa-
tion should be made, or relief given, is of
universal application, the great diversity of
conditions in the different sections of the
United States may, in a wise application of
the principle, call for differences between
states In the amount and method of compen-
sation, the periods in which payment shall
be made, and the methods and means by
which the funds shall be raised and dis-
tributed. He field of compensation for in-
juries appears to be one in which uniformity
ia not desirable, or at least not eaaential to
the public welfare.
The contention that Congress ha*, by leg-
islating on one branch of a subject relative
to interstate commerce, pre-empted the
whole field, has been made oftea In tUa
court; and, as the cases above cited show,
has been repeatedly rejected in cases where
the will of Congress to leave the balanoe of
the field open to state action was far Ish
clear than under Hie circumstances here con-
sidered. Tested by those deeieions and by
the rules which this court haa framed for
line number of cases on the October,
leiG, term of this court, was l,0e9. Of
these 93 involved one or more queattons
arising under the Federal Employers' Lia-
bility Act of April 22, 1908. Of theae 93
cases, 37 presented the questltxi whether or
not the emploj^ee was engaged In Miteratata
commerce or mtroetate cnnmOTee. In 62
of the cases the question was preaented
whether there was eridsaca of negllgsnoe on
the part of defendant. *- "' ' '*
bi 24 of £e ease
the rlak.
A^^OOglC
87 SUPEBMB OOUBT HEPORTER.
Hi gnlduice, I am of opinion, ai was said
In Atlsntla Coast Lino R. Co. v. Georgia,
iU V. a. 230, 2U, es L. ed. 1312, 13X9, 34
Snp. Ct Rep. 829, that "the intent to super-
■ede the exercise of the atate police power
with respect to this eubject cannot b« in-
ferred from the restricted kction which
thus far has been talcen." The field corered
bj Congreaa was a limited field of the car-
rier's liability for negligence, not th« whole
field of the carrier's obligation arising from
accidents. I find no justification for im-
^puting to Congress the will to den^ to a
^large class of persons engaged in a Dec«s-
■ •arilj'^azaTdoua occupation >■ and otherwise
unprovided for, the [H'otection afforded by
bmeScent statutes enacted in the long-de-
ferred performance of on inilstent duty and
in a field peculiarly appropriate for stats
Mr. Justice Clarke eoucors in this dis-
AMT L. WINFIELD.
UouuROK #=8(6) — EtEOLTrnTHfua or
FCPE&U. BXODUITIOIT— BlfPM>TXBS' lOA-
HIUIT.
1. ConsrcM Intuided the ¥kaplojw%' U»-
blllty Act of April 22, 1906 (35 Sut. at L.
W, chap. 149, Comp. Stat. 1918, H 8667-
86e5), leeuIatiQ^ the liebility ot an in-
terstate railway carrier In case of the in-
jury or death of on employee when em-
ployed In interstate commerce, to be as com-
prehensive of those instances in which it
excludes liability, i. e., where there is no
causal negligence for which the carrier Is
resnon Bible, as of those in which liability
is imposed, and in both classes such act is
C.ramount to, and excluaive of, state regu-
tion.
OOUUKBCE «:327(S) — Elf PLOTXB'S IaaBU.-
ITT— When Sebvaht u DnoAOKD in In-
terstate COMUEBOE.
2. An employee of an Interstate rail-
way carrier in charge of a switch engine
who was killed while leaving the yards
after his day's work, which had included
employment in both Interstate and intra-
state commerce, n-os, at the time of the
accident, employed in interstate commerce
within the meaning of the Federal Em-
uThe experience of the organUation
[Brotherhood of Looomotive Firemen and
Enginemen] shows that more than SO per
cent of all deaths and disabilities are caused
by railroad accidents. W. S. Carter, Sen.
Doe. M9, p. 137, e4th Cong, lit S«u.
ployees wh«i employed In lnt«rstate eoi»-
CouuEBCE «s»8(8) — OoEirucmita Staix
ASD Fedekal Reqdlation— Buflotxb'b
LiABiUTr— Workuen's CoupiNOATion.
3. The operation of the Federal Em-
ployers' LUbility Act of April 22, 1908 (36
sut. at L. 86, chap. 149, Comp. Stat 1918,
f J S(!57-8tiaC>), (overning the liability of intei^
state railway carriers for the death or in-
jury of their employees while employed in
interstate commerce, cannot be interfered
with by a state either by putting the car-
riers and their employees to an election be-
tween the provislona of that statute and a
state Wortcmen's Compensation Act, as la
attempted bjr N. J. Laws 1911, chap. 96,
or by Imputing ■uoh an election to tbem
by a statutory presumption.
Argued March ], 1918. Restored to docket
for reargument November 13, 1916. Re-
argued February 1 and 2, 1917. Decided
May 21, 1917.
IN ERROR to the Conrt of Errors and Ap-
peals of the State of New Jersey to re-
view a judgment which reversed a judgment
of the Supreme Court of the state, reversing
a judgment of the Court of Common Fleaa
of Hudson County, which had awarded com-
pensation to a dependent under a state
Workmen's Compensation Act. Revereed.
See same ease below, 88 N. J. L. 61>, tW
Atl. 394.
The facts are stated in the opinion.
Messrs. George B. Hobart and Gilbert
Collins for plaintiff In error.
Mr. Harrr Iiane for defendant in error.^
* Mr, Justice Van Devanter delivered the*
opinion of the court:
This was a proceeding under a New Jersey
statute, chap. SB, Laws 1911, against a com-
mon carrier by railroad, engaged in both
interstate and intrastate commerce, to ob-
tain eompensation for the death of one of
its employees. The employee waa In charge
of a switch engine In the carrier's eztenuTe
yard at Croxton, New Jersey, and waa
switching freight cars about in the yard,
oapecially to and from a transfer station.
The cars usually contained package freight
and many were moved in the course of a
day's work. In some the freight waa in-
terstate, in others intrastat«, and in still
others it was of both classes. Tltis waa
true of the cars moved on the day in quei-
tion. In concluding his work for that day
the employee took his engine to the placa
where it was to remain for the ni^t and
^s>For other cSMs SM same topic ft KBT-NUHBBB In all K«7-NnmlMr*d Dlsests * Indaiw
A^iOOglC
iBie.
BBIE RAILROAD CO. t. WINVIELD.
ftftrtad to lc*T« the ^ard. Bte imite laj
MroM wnne of tha tndu, and while puaing
ever one he was ttmek by en Migine end re-
ceived injnrlee from wUeh lie aoon died.
No ceuaal n^Ugence wu eUeged or proved,
■nd both parties aeeumed there waa none.
In these eireumitaneee the trial judges while
aot doubting that the fatal Injury occurred
Is Uie eoune of the deceased's employmeut,
beld tbat be was not then emplojed in in-
teratate eomnierce, and that eompentation
should be made under the etate statute
the widow. A judgment in her favor vi
entered, but was reversed by the eupreme
court of the state, which concluded that
the deceased'e employment at the time of
the injurj' was in interstate commerce, and
Sthat the case was oontrolled by the £m-
^ployere' Liehility Act* of Congress, which
makes negligence the test of the carrier'
liability or obligation. That judgment was
in turn reversed by the court of errors
appeals, which, although assuming "that
the conclusion of the supreme court as
the character" of the deoeaeed's emploj'ment
at the time of the Injury "was justified by
the facts proved," regarded the Federal
act ae without beating, because affording
tio remedy and imposing no liability in tlie
absence of causal negligence. 88 N. J. L.
•IS, 06 At). 394.
The questions presented for decision are
these: First, whether the Federal act if
regulative of the carrier's liability or obli-
gation in every instance of the injury or
death of one of its employees in interstate
commerce, or only in those instances where
there U cause] negligence for which the
carrier !■ responsible. Second, whether
the facts proved sustain the conclusion that
the deceased was employed in Interstate
eommerce at the time of the injury. Third,
whether, by reason of the state statute, the
earrier became bound contractually to make
eompensation in this instance, eveo though
It came within the Federal act.
The first question is fully considered in
New York C. H- Co. t. Winfleld. the opin-
ion In which has been just announ(^ed, 244
D. 8. 147. 61 I- ed. — , 87 Sup. Ot Hep.
K40, and it snfflces here to sb7 that, for the
Masons there given, we are of opinion that
the Federal act proceeds upon the principle
which regards negligence as the basis of the
dul7 to make compensation, and excludes the
existence of such a duty in the absence of
negligence, and that Congress intended the
met to be as comprehensive of those instances
In which It excludes liability as of those
in which liability is imposed. It establishes
s rule or regulation which ia Intended to
operate uniformly in all the states, as re-
q>eets interstate commerce, and In that
Aald It la both paramount and ezelndT*.
The second qveatton most be i^ven aa^
afBrmativ^answer. In leaving the earrter'i>
yard at the cloee of his day's work ths ds-
eeased was but discharging a duty of Us
employment. Sea North Carolina R. Co. t.
Zachaiy, 232 U. S. 248, SCO, CB L. ad. BQl,
6D6, S4 Sup. Ct. Rep. 306, B N. C. a A. 109,
Ann. Caa 1Q140, 16&. Like his trip throngb
the yard to hia engine In the morning, It
was a necessary inetdent of hia day's work,
and partook of the character of that work
as a whole, for it was no more an Incident
of one part than of another. His day's work
was in both interstate and Intrastate com-
merce, and so, when he was leaving the yard
at the time of the injury, his employment
wee in both. That he was employed In in-
terstate eommerce is therefore plain, and
that his employment also extended to in-
trastate commerce is, for preeent purposes,
of no importance.
The third question requires some notice
of the New Jersey statute. It consists of
two parte. One conftmne to the principle
which regards n^Iigence ae the basis of
liability, and excludes liability in the ab-
sence of n^ligence. In its details, however,
that part dlSMS materially from the Fed*
eral act. The other conforms to a different
principle which rejects negligence as a baais
of liability and requires compensation to be
made by the employer wherever the injury
or death of the eii^)loyee is an Incident of
the service in which be is employed. This
part is deecribed as "elective," and is not
to be applied unless the employer and ths
employee shall have agreed, expressly or
impliedly, to be bound thereby and to sur-
render "their rights to any other method,
form, or amount of compensation or deter-
mination thereof." Respecting the mode of
manifesting such an agreement or the con-
trary, it is provided that every contract of
hiring "shall bs presumed to have been
made" with reference to this part of ths
statute, and, unless the ciwtract or a notice
from one party to the other oontaln "an ex-
press statement in writing" to the eimtrary,
~ t "shall be presumed" that the parties 'Hiave
igreed to be bound" by this part of the«
statute. Iliere was no ttcpress agreementn
this instance and there is no* basis for*
regarding the carrier as In any way bound
by this part of the statute, save as It pro-
vides that an agreement to be bound by It
shall be presumed in the absence of a declara-
tion to the contrary. But such a presnmp-
cannot be indulged here, and this for
reason that by the Federal act the en-
subject, as respects carriers by railroad
and their employees in Interstate conuneros,
taken without the reach of state laws.
It ia beyond the power sf any stats is Inter-
tee with the opwatlea erf that act, altksr Igr
A^^OOglC
37 SDFREUS OOUBT BKPOBTBB.
Oor. Tax,
patUng tlia eurlw ftud tiidr frnployeN to
•a •iMtlon iMtwMB Ub proriaioa* mnd thoM
»f ft ttMU ■tatnta, or b^ impuUnc (ash am
•iMtton to tfceiQ br mauia of a BtatataiT
pr«8imiptico. The third qaettion, therefore,
■roat be ennrwed la tlie BCgatiTe,
It follows that the Court of Brron and
Appeals erred In failing to five tgntroUlng
affect to the Federal act.
Judgment rerened.
OM D. ■. IW
TRAfiKLm E. LAITG, Benettrj of the
iDterior, Plff, In Err,
SVAN HOGLUND.
Hahdakds ^380~To Secretart or In-
TXmlOR — MlNIBTBRIAL DUTV— "PENDIRQ
OolfTBST OB PaOTZM."
A report bj a forest officer recom-
mending tlu cancelation of a bomCBtead
entry for nosresidence and lack of culti-
vation is not a "pending conteat or proteat,"
within tlie meaning of the Act of March
3, 1891 (2B EUt at L. lOSS, chap. 5S1,
Comp. Stat. lOlS, | 61IS), | 7, and hence
does not relieve the Secretary of the In-
terior, aa head of the Land Department, of
the plain dutj, under that eection, enforce-
able by mandamna, to cauae a patent to be
iSBued to a homeatead entryman where two
years have elapsed aiuce the date of the
receiver's receipt upon the final entry, and
there Is "no pending contest or protest
against the validity of sach etttry."
[Ed. NoCe.— 7ar oUier o*se^ is* Handamns,
OsDt. DlB. H Ui-U8.]
[No. 306.1
IN EBBOR to the Conrt «f Appeals of
the District of Columbia to review a
Judgment which, reversing a judgment of
the Supreme Court of the District, granted
a writ of mandamus against the Secretary
of the Interior to compel the issuance of
a patent to a homestead entryman, Ai-
See same case below, 44 App. D. C. 310.
The facts are stated iu the opinion.
Assistant Attorney General Kearfnl and
Mr. 8. W. Williams for plaintiff in error.
Messrs. Franc Is W. CiementB and B.
E. Hlnton for defendant in error.
• *Mt. Justice Van Devanter delivered the
opinion of the court:
This is a petition for ft writ of mandamus
against the Secretary of the Interior. In
the court of first instance the writ ma r»-.
fused, but the court of appeals directed that
it be grantod (44 App. D. C. 310), and ou
Jurisdiction arises out of the faet that
the oonstmction of a statute «f the United
State* and the duty of the Secretary of the
Interior therenndsr are drawn in question.
The statute Is the following provision in
S 7 of the Act of March 3, IBOl, chap. Ml.
2S Stat, at L. lOOfi, 1099, Comp. SUt. 1910,
IIEllS. S113:
"That after the lapse of two years from
the date of the issuance of the receiver's re-
ceipt upon the Snal entry of any tract of
land under the homestead, timber-cnlture,
deeert-land, or pre-emption laws, or under
this act, and when there shall be no pend-
ing contest or protest against the validitys
of such entry, the entryman shall be en-n
titled* to a patent conveying the land by*
him entered, and the some shall bs iasnad
What is meant by a "pending contest of
protest" is the question under the statute.
The facts are not In dispute and are these:
In 1902 Svan Hoglund settled upon ud
made preliminary entry under the home-
stead law of a tract of public land in tha
Eureka land district of California. In
1905 the land was included within a Dft-
tional forest reserve by a proclamation of
the President (34 Stat, at L. 3001), which
contained the following excepting clause:
"Excepting from the force and elfect of
this proclamation all lands which may have
been, prior to the date hereof, embraced la
any legal entry or covered fay any lawful
Alfng duly of record In the proper United
States land office, or upon which any valid
settlement has been made pursuant to law,
and the statutory period within which to
make entry or filing of record has not g(*
pired; Provided, that this exception shall
not continue to apply to any particular
tract of land nnlees tiie entryman, settler or
claimant continues to comply with the law
under which the entry, filing or settlement
was made."
In due time thereafter, and after due
notice by publication of bU purpose so to
do, Hoglund submitted final proof of oom-
pliance with the homestead law and of his
right to obtain the title. The proof was
accepted as satisfactory by the local officers,
id on August S, 1907, a receiver's receipt
id a register's certificate upon final sntiy
ire regularly issued to him.
May 29, 1909, a report from a depu^
rest supervisor recommending the cancela-
tion of the entry "on account of iloores-
idence and lack of cultivation" was received
at tiie Qeneral Land Office. The report in-
dicated that the entryman was a single
man, and had a three-room house, a small
bam, and some fencing ^ the land; that
^^sFor otber esse* «•• sa
s topic & KBT-NUUBBR In all Kej-Nnmbsrsd Dliests t lodues
D,at,z.d-,.'^-.00'^IC
UK.
LAMB T. HOQLCND.
^ha lubd 3 Acres plowed and under oalttva'
■tioa; thkt th» land 'had much valnabl*
timbBT thereon, bnt none had been cut as-
eept for improvementa, and that the entrj-
nuui had establiihed actual reaidence on
the tract in June, 1002, but had reallj lived
thereon only at unnamed periods, "going
away to work for wagea four or five months
at a time." No action upon thia report waa
taken until April IS, 1910. On that d^,
almoat three years after the date of
ncelTer*! receipt, the Commtsslouer of the
General Land Office ordered a pToceeding In
the local land office to determlDe whetiter
the entrjmaQ had eatabliahed and main-
tained a reaidence upon the land. Notice
of this waa given to him — apparently it
was fais first Information that his entry
was called In question — and a hearing was
had. The local officers and the Comtnii-
aiouer of the General lAnd Office In turn
found the facta in bis favor, but the Sec-
retary of the Interior found them the other
way and ruled that the entry was not con-
firmed or protected by the provision In ) 7
of the Act of Mareb 3, 1691, supra. 42
Land Dee. 406; 43 I«nd Dec 638 and 040.
The Secretary directed that tb« entry be
canceled and the present petition was then
filed. It prayed for a writ of mandamus
eommandiog the Secretary to recall the
order for the cancelation of the entry, to
reinstate the entry upon the rMOtds, and
to cause a patent to be issued to the entry-
For present purposes no importance at-
taches to the creation of the forest reaerre
after the primary and before the final entry.
The eittrymaa wae free, under the terms of
ttie President's proclamation, to prooeed
with the steps essential to obtain a final m-
try and ultimately the full tltl^ and to sneb
a final entry the statute — the provision in
I 7 — baa the same application aa if the
land were wlthont instead of within the re-
The MtAtate mahee It very plain that if,
at the expiration of two years from the
date of the receiver's final receipt, there is
k>iM "pending contest OT protest" against tlie
S* entry,* its validity no longer may be called
in question; In the words of the act, "the
sntryman shall be entitled to a patent
, . . and the same shall be issued to
him." The purpose to fix his right and to
command its recognition Ib obvious. What,
then, is the "pending contest or protest"
which is to eiclnde a subsisting entry from
this statute of limitation and reposet Is
It soma proceeding which is b^iun, ordered,
or set In motion In the interest ot another
r of the pnhllo, to teat or de-
• the validity of the (sitiyl Or may
It be « mere report, lettor, or other eom-
mnnieation, confidential or otherwise, whidi
baa not been and may never be acted upon,
which may be neither known nor aooesribb
to the entryman, or which may be so gen-
eral, vague, or intemperate In its statemeata
as not In Itself to merit attention! Inde-
pendently of the occasion for the enactment
and of the practice of the Land Department,
there hardly could be any difference of opin-
ion about Che answer. And when these are
understood we think there is no room what-
ever for a difference; in short, the reference
is to a proceeding against Uie entry, and
not to some communications which, at moa^
is only snggestiTe of the propriety of such
a proceeding, and may new become the
As applied to public land affairs the term
"contest" has been long employed to desig-
nate a proceeding by an adverse or intend-
ing claimant, conducted in his own Interest,
against the entry of another, and the term
"protest" has twen commonly used to desig-
nate any complaint or objection, whether
by a public agent or a private citizen, which
is intended to be and is made the basis of
some action or proceeding in the public
right against an existing entry. This «x-
plains the use In the statute of both terms
in the disjunctive, and accords with the
instructions of May 8, 1891 (12 Land Dee.
460), wherein each tsrm is spoken of as
meaning a "proceeding" ujider the Bules of
Practice to cancel or defeat an entry, andt-
wherein It is said that**Vh«n there are jttff
proceedings Initiated wtthln that tims [the
two years] by the government or individ-
uals, the mtryman shall be entitled to
patent." The same Tiew is shown In the
supplemmtal InstruoUons of July 1, 1S91
(13 l4uid Dee. 1), wherein the Seeretaiy
said to the Conimlaaioner: *^oa will, there-
fore, approve for patent bH entries against
which no proceedings were begun within
the period of two years from tlie date of
the final oertificate, bnt whCTs proceedings
have been, or shall be, b«^n within the
BpeciSed period, the entry will be held to
have been taken out of the operation of
this statute, and such eases will proceed
to final judgment as heretofore."
Subject to some exceptions and qualifica-
tions which need not be specially noticed,
this continned to be the view and practice
of the Land Department for many years,
and in conformity therewith many thou*
sands of entries were carried to patent or
otho^vise, as their parUcnlar facts caused
them to fall upon one side of the line or
tbe other. But In the case of Se Tragansa,
40 Land Dec 300, decided November 17,
1911, a sharp departure was taken tnm
the earlier view, and It was held that Ike
atatut* lias "va rsfwanaa to proesadfaigs I7
,A_.OOglC
27 SUPBBME OOUBT BEPOBTSiB.
Oct. :
the United Statei, or Its ofBcen o( mgenta,"
■gunit such entries, and doe* *^ot effect
the eoaduct or action of the lAnd Depart-
tnent in taking np and disposing of final
proof of entrTmen after the lapse of two
fears mentioned in the act." That view,
however, did not Ions' have the approval
of the Department. In the caee of Be
Earrti, 42 lAud Deo. 811, decided December
J3, 1913, Ui« subject waa reconsidered, at-
tention being given to the occasion for the
enactment and to its prior administration.
Mid the conclusion was reached that the
earlier view, long msintaiued, was right
and that the praetica thereunder should be
restored. In that case, as in this, a forest
•fficer reported that the claimant had not
Saatahliahed or maintained a residence upon
• the land, and no action waa'taken on the
report nntU after the expiration of the two-
year p^od. But In that case the entry was
held to be conflrmed under the statute,
while here the ruling was the other way.
Of the situation which prompted the enact-
ment of the statute it waa said in the de-
cision of that case:
"The records of this Department dlBcIoae
that, during several years preceding 1691,
a very large number of entries were suspend-
ed by the General Land Office on vague and
Indefinite suggestions of fraud or noncom-
pliance with law, to await invest^ation
fay special agents of that bureau. Theae
suspensions were so numerous and the force
available for investigation was so InsufS-
dent as to create a practical blockade in
tha issuanCB of patoita, to the serious preju-
dice of btuia Ode claimants under tite
pnblie land laws. In nuuy instances, the
charge or suggestion upon which the sus-
pension was ordered had no foundation of
fact othei than the proximity of the land
to other tracts embraced in entries alleged
to be fraudulent or otherwise illegaL The
reports of thia Department to the public
land committees of the Senate and House of
Bepreaentatives, concerning this legislation,
and the debates of those bodies thereon,
leave no doubt of the purpose of Congress
that said proviio should correct the hard-
ship of this situation and provide against
a repetition thereof."
And it was also said:
"Passed, primarily, to rectify a past and
to prevent future abuses of the departmen-
tal power to suspend entries, the proviso is
robbed of its essential purpose and prac-
tically repealed by the decision in the Tra-
gania Case. . . .
"Upon mature consideration, the Depart-
BSBt is eonvineed that a contest or protest,
to defeat the conflrmatory effect of the
proviso^ mnat be a proceeding sufllcient, in
ttaelf, to plaea the entryman on his defcmss.
to require of him a ahowlng of material^
fact, when served with notice thereof." <o
That decision was followed in Be Judieak^
43 Land Dec. 246; Be Crowther, 43 l4Uid
Dec. 282; Instructions, 43 lAnd Dec. £M
and 322.
Looking, then, at the statute In the light
of all that bears upon its purpose and
ling; we think it certainly and un-
mistakably lays upon the Secretary of tiie
Interior, as the head of the l4uid Depart-
ment, a plain dnty to cause a patent to be
issued to a homeatead entryman whenever
it appears, as eoneededly it did tn this in-
stance, that two years have elapsed Aica
the issue of the receiver's receipt upon the
final entry, and that during that period
no proceeding has been initiated or order
made which calls in question the validity
of the entry. In ths exercise of its dis-
cretion Congress has said, in substancs,
t^ Uiis statute, that for two years after
the entryman submits final proof and ob-
tains the receiver's receipt the entry may
be held open for the initiation of prooeed-
ings to test its validity, but that if none
such be begun within that time, it shall
be passed to patent as a matter of course^
Thus in a case like this, where, according
to the conceded facts, no proceeding was
begun within the prescribed period, there
is no room for the exercise of discretion or
judgment, but, on the contrary, a plain
duty to see that the entryman receives a
patent.
True, this court always is reluctant to
award or sustain a writ of mandamus
against an executive officer, and yet cases
Bometimea arise when it is constrained by
settled principles of law and the exigency
of the particular situation to do so.
Kendall v. United States, 12 Pet. 62i, 0
L. ed. IISI; United States v. Bchurs, 102
U. S. 3Ta, 20 L. ed. 187; Roberts v. United
States, 178 U. S. 221, H L. ed. 443, 20
Sup. Ct. Bep. 376 ; Garfield v. United SUtes,
211 U. S. 24S, 63 L. ed. 188, 29 Sup. Ct
Rep. 82; Ballinger v. United SUtea, 218
U. S. 240, E4 L. ed. 484, 30 Sup. Ct. Bep.
338. And see Noble v. Union Biver Log-
^g B. Co. 147 U. 8. 16E, 37 L. ed. 123, 13
Sup. Ct. Rep. 271; American School of
Magnetic Healing v. McAnnulty, 1S7 U. 8.
04, 47 L. ed. 00, 23 Sup. Ot. Bep. 33. This,
we think, is such a case. As quite appo-
site we excerpt the following from the
unanimous opinion tn Roberts v. United
States, 178 U. S. 221, 231, 44 L. ed. 443_
447, 20 Sup. Ct. Rep. 378: g
* "Unless the writ of mandamus is to bfr"
come practically valueless, and is to be
refused even where a public officer is com-
manded to do a particular act by virtue of
a particalar etatntei this writ AonU ba
A^iOOglC
ISIS.
UNITED STATES t. WILDCAT,
Ml
gruitod. Eveiy atatate to tome extent re-
hire* eonstructloD bj the public officer
whoM dutiea maf be defined tberefn. Such
officer must read the law, and he must
therefore, in a certain Benae, conatrue it, in
order to fonn a judgment from its language
triiat dut^ he Is directed by the statute to
parform. But that does not necessarilj and
in all cue* raalce the duty of the officer
anything other than a purely miniiterial
one. II the law direct him to perform an
act in regard to which no discretion la com-
mitted to him, and which, upon the tacts
■ziating, he la bound to perform, t*ien that
act ia ministerial, although depending upon
A statute which requires. In some degree, a
oonatruction of its language by the officer,
Unlesi this be ao, the value of thli writ is
very greatly impaired. Erery executive offi-
cer whose Aaty Is plainly devolved upon bim
by statute might refuse to perform it, and
when his refusal Is brought before the court
be might succeasfully plead that the per-
formance ol the duty Involved the eonetrac-
tlon of a statute by him, and therefore it
waa not ministerial, and the court would,
on that account, l>e powerless to give relief.
Such a limitation of the powers of the
eonrt, we think, would be most unfortunate,
as it would relieve from judicial supervision
all ^ecutive offlcera in the performance of
their duties, whenever they should plead
that the duty required of them arose upon
the construcUon of a statute, no matter how
plain its language, nor how plainly they vio-
lated their duty in refusing to perform the
act required."
We therefore conclude that the Court of
Appeals rightly directed that the writ be
Judgment affirmed.
UNITED STATES
BESSIE WILDCAT et al.l
IlfDIAKB «=9l3— CONGLITSIVEnESS OF De-
CBEE or Dawes Coiuiiasion— Bnbolment
OV iMDIAKt.
1. The question of fact whether a Creek
Indian was living on April ], 1890, the de-
cision of which was committed to the Dawes
Commission hy the Curtis Act of June 28,
1 Death of David Kniglit, one of the re-
spondents herein, suggeatcd, and appear-
ance of C. 0. Taylor, the duly appointed,
qualified, and acting guardian of the per-
son and estate of Wiley Knight, a minor
and Bole heir of David Knieht, as a party
respondent herein, filed and entered April
B, 1917, on motion of Solicitor General
Davis, on behalf of counsel for Bald re-
spondent.
1898 (30 SUt. at L. 40B, chap. S17), and
the Creek Agreement of March 1, 1001 {31
Stat, at L. 861, chap, 876), § 28, authoris-
ing such Commission to make investiga-
tion and determine the names of those en-
titled to he on the rolls of citisenahip and
to participate in the division of the triliaj
lands, cannot be retried in the courts, what
not impeached for fraud or mistake, where
the decision of the Commission to place the
name of auch Indian on the roll of Creek
citizens l^ blood has been followed by the
action of the Interior Department, con-
firming the allotment, and onlering the pat-
ents conveying the lands, which were in
fact issued.
rSd. Note.— Tor other easM, ■•• Indlaiu, Cent.
Dfg. I ID.]
2. The enrolment of a Creek Indian by
the Dawes Commission upon the roll of
Creek citliens by blood cannot be said to
have Ijeen arbitrarily done, «Jid without evi-
dence of the fact that such Indian was llv.
ing on April 1, 1899, ao as to establish
that mistake of law or fact which is es-
sential to the impeachment of the action
of the Commission, where there is evidenca
showing the practice of the Commission to
make inquiries and investigations and to
ascertain the facta as to the persona en-
rolled, and that no person was enrolled
without information that was deemed satis-
factory at that time.
"[Ed. Note.— For athsr cau^ see Indians, Cant.
Dig. I 30.]
Indians ^=3l3 — Allothiiits— ConTsoL or
Intkbiob DcpABTuenT — Suuuabii.t
Erasing Name ntOK GrnzzNBHip RoUh
3. The Secretary of the Interior could
not, without notice to the heirs, strike from
the approved roll of Creek citizens by blood,
on the ground of death before April 1, 1SD9,
the name of an Indian to whom an allot-
ment bad been made and certificate therefor
issued and allotment patents executed and
approved.
[Ed. Note.— For othar cuas, m* Indiana, Cant.
Dfg. 1 30.1
InniAire e=)13— ALLontEitTB— Patiht to
Decbabed QoAnTKE,
4. The fact that an Indian allottee was
dead at the time allotment patents were
issued in his name did not prevent the title
from Testing in his heirs under the provi-
sion of the Creek Agreement of Marcli 1,
1901 [31 SUt. at L. S61, chap. 876), g 28,
that, if any citizen has died since April 1,
1899, or may thereafter have died before re-
ceiving his allotment and distributive share,
the lands and money to which he would be
entitled If living shall descend to his heirs
according to the Creek laws of descent and
distribution, and be allotted and distributed
to them accordingly.
[Ed. Nots.— For ottier esses, lea Indiana, Cant.
Dig. t SO.]
InniANB e=>13 — Allotkents— EnbouoiIT
, or Indians Not iiASiiia Selectiok.
5. Members of the Creek Nation who^
for any reason, refused to make selection
of their allotments, could be placed npon
i« topic & KET-NDHBBB In aU K«r-Nanb«r«d Digests * Indexes
.A^iOOglC
87 SUFRBUZ COUBT REPORTEB.
Oct. Tmi; '
I 3, prorldlng tbkt "all Unda of
Uibs except aa herein proTided, abtll b*
■Jlotted among the citizen* of tbe tribe iij
B»id CommiBsiou so as to give each an equal
share of the whole in Tolve, as nearly aa
may be, in the manner following; uiera
ahall he allotted to each citiien 160 ocrei
of land — bounduries to confann to the xov-
ernment anrv^ — which may be Bclactea by
him so aa to inelnde improvementa which
belong to him."
eEd. Note.— For otlin- oaaaa, h* Indiaiu, Cut.
[No. 741.)
Argued April 11, 12, and 13, 1B17. De-
cided May 21, 1917.
0
N A CEETIFICATB from and WRIT
OF CERTIORARI to tho United SUtei
Circuit Court of Appeala for the Bighth
Circuit, bringiog ap for review a decree of
the District Court for the Eastern District
of Oklahoma, diamiEBing the bill in a auit
by the United &tat«( to cancel an Indian
allotment certificate and the patents for his
allotment. Affirmed.
The facta ore stated In the opinion.
Assistant Attorney Qsneral Kearfal,
Bolicitoi General Davis, and Hr. S. W. Wil-
liam* for the United Statee.
Messr*. Jaa^>h O. Stone, John J. 6be»,
Charles B. Stuart, A 0. Cruce, Qeorge 8.
Bamsey, Maledm E. Roawr, Edgar A. ds
Meules, Villard Hartln, Jtdin Dererenx, J.
B. Wyand, K. B. Turner, J. B. Puriy, B.
C. Hotter, P. J. Carey, W. C Franklin,
Dnrdette Blue, Thomaa F. Shea, William
A. Collier, Haun Green, B. J. Van Court,
Charle* A. Moon, Francia Stewart, U. E.
Turner, for BeesLa Wildcat et al.
Messrs. A. A. Davldaon, Preston C.
Weit, and James A. Veaacry for Biseett
•tol.
Messrs. B. 0. Allen, James 0. Daris,
Grant Foreman, James D. Simma, as amis!
* 'Mr. Justice Day deHvered the opii
the court:
This action was begun by the United
States, in behalf of the Creek Tribe of In-
dians, in the district court of the United
States lor the eastern district of Oklahoma,
against Bessie Wildcat and others, helra of
Barney Thiocco, a full-hlood Creek Indian,
to obtain canoelation of the allotment
tlficate and deeds for his allotment of 180
acres. The biU of complaint allies that
Thiocco was a CnA Indian by blood; that
be died at about the beginning of the year
ISCQ and prior to April 1. 1890, and that
not mtitled to be enrolled as a dtl-
tea of the Cresk Nation, or to receive a«
allotmmt of any part of ita lands nnder
the acts of Congreas; that on or about May
24, IBOl, the Commission to the Fivs Civil-
iwd Tribes caused his name to ha plaeed on
the roll of Creek citizens by blood which
that Commission was then preparing; that
thereafter, on June 30, 1002, the Commis-
sion issued a certificate of allotment in
Thlocco's name, and homestead and allot-
ment patents purporting to convey the land
allotted were executed by the principal chief
of the Creek Nation on March II, 1&03, and
approved by the Secretory of the Interior
on April 3, 1003; that thereafUr, m De-
cember 13, 190S, the Secretary of the In-
terior, by executive order, caused Thlocco's
to be stricken from the roll of citi-
Eens by blood ot the Creek Nation, and h«
is not an enrolled citizen by blood or other-
wise ot the Creek Nation, and is not now
and has never been entitled to an allotment
of land therein because he haa never been a
lawfully enrolled citizen thereof, and be-
cause he died prior to April 1, 1899; and
that the patents have never been delivered
to Hlocco or to any other person, but are J
in the possession of complainant through h
Its officers and agents. The biirall^ea that
these instruments and procaedinga consti-
tute a cloud upon the Creek Nation's title
to the land and that the axiatenee of this
cloud hinders and delays eomplalnant in
th* performanoa of the dut^ imposed on It
by law to allot and otherwise dispose of the
lands and to wind up the affairs of the
Creek Nation, and prays that ths allotment
certificate and patents be declared void and
of no effect aa instruments of eonveyanoe;
that the defendants ha decreod to have no
right, title. Interest, or estate In and to the
land; that the tiUe to the land be quieted
In complainant and the Credc Nation; that
whatever cloud is cast upon the title to the
land by reason of the matters aforesaid be
decreed to be dissolved and the land decreed
to be a part of the public and unallotted
tribal land of the Credc Nation, subject to
disposition by complainant in aecordanoa
with law; that the enrolment of Barney
HiIocco be canceled, and that he, or any
person claiming by, through, or under hin^
including Uie defendants, be decreed not to ,
be entitled to participate in the dlspori- I
tion of the lands, moneys, or other property
of the Creek Nation, and that the defend-
ants be forever mjoined frran asserting any i
claim of tltls to, or interest In, ths tract o(
land hereinbefore described, adverse to the
complainant and the Creek Natitm. It ia al-
leged that no hearing was held or invesU- I
gallon made by the Commission, and IM
•ridenea ot any Und waa obtained ar had '
,A_.OOglC
IflS.
UNITED STATES T. WIUXUT.
bf it «i tlic qaestloB of lUoeeo'i rigH to
be enrolled; that no notlee -wax given to the
Creek Nation that his nmme waa about to be
enrolled; that there waa no eontroveTsy,
eontoat, or adverse proceeding ef any kind
before the Commiseion In this respect; and
Oat the Commission, In caoainK 'Diloceo's
Dame to be placed on the roll of Creek eiti-
aens bj blood, acted arbitrarily and snm-
marily, and without knowledge. Informa-
tion, or belief that he was living or dead
en April 1, 1800, and acted on a mere ar-
S bitrary and txroaemiM assumption wholly
7 nnsupported by evidence or^formatlon that
he was living on that dato and entitled to
be enrolled.
The answer avers tAat Thloeco waa living
April 1, 1890, and denies that the Commis-
sion acted arbitrarily and without evidence
In placing his name on tlie roll and allotting
the lands to him, and alleges that the Com-
mission, In causing both tlieae acts to be
done, waa not guilty ol any gross mistake
of fact or of law, but acted upon evid«iee
satisfactory to it, and sufficient in law aivd
hi fact. It further alleges that the Dawes
Commission was vested with jurisdiction to
determine what persons were entitled to en-
rolment as citizens of the nation, and en-
titled to allotment out of the tribal lands,
and Uiat its decision in that r^ard having
been approved by the Secretary of the In-
terior, "said enrolmmt, allotment, and
f«tmt cannot be canceled, nor can the issue
of fact upon which the Commission placed
the name of Barney Thloceo upon the ap-
proved Creek Roll be tried again ; and these
defendants say that this court is without
authorify of law to reopen or retry the
qneation of fact sought to be put in issue
iy the United States."
Other defendants claimed an Interest in
p«rt of the same property nnder a anbae-
qoent allotment, and intervened for the
same tdief as waa asked by tlie United
SUtea.
Upon the trial of the case, Uie government
effered to show by wifaieaaes and elrcum-
atapces tbat Thloceo in fact died in Janu-
ary, ISOEP. Upon objection to this evidence
bf the defeudanta, the trial oourt ruled that
the question whether Ililocco was living on
April 1, 1B99, was one of the questions
vhich the law submitted to the Dawes Com-
miaaion, and that its decision, placing
niloceo's name on the tribal roll, could only
ba attacked upon the ground ol fraud, error
ol law, or groBB mistake of fact, or upon
e tha ground Utat the Commission acted ar-
H Utcarlly and wholly without evidence; that
* it waa not open to the*goveniment, for the
gnrpnas of attacking the allotment certifl-
aata and deeds to nUocco, to retay the qusa>
Um of fact aa to whether he was living
April 1, ISM.
At the ooncluaion of tbs trial the gov-
ernment renewed its offer of proof, to whidi
objections were austained on the ground
Just stated. A decree waa then entered dls-
missing the blU for the reaaon that the
government had failed to show that the
Commission, In enrolling Thloeco, acted arbi-
trarily and without evidence. Appeal was
then taken to the eircult court of appeals
for the eighth circuit, which court certified
certain questions of law to this court. Sub-
sequently a writ of certiorari was isaued,
bringing the whole ease here. Judicial
Code, i 230 {36 Stat, at L. 11S7, chap. 231,
Comp, SUt 1010, I 1210].
The government in the brief filed in ito
behalf reduces the questions necessary to
decide the merits of this appeal to two:
First, should the evidence offered by the
government to show that Tiloeco died prior
to April I, 18S0, have been admittedl Sec-
ond, should the judgment of the district
court be reversed because the enrolment of
Hloceo and Ou) allotment to him were
made arbitrarily and without evidence as
to whether he was living or dead on April
1, 1800 T
As to the flrat question, an nnderstanding
of certain legislation la necesaary to Ita
answer. By Uie Act of Congreaa of June
10, 1S9S (20 SUt. at L. 33S, chap. 308),
the Commission to the Five Civilized Tribes,
more commonly known aa the Dawes Ctnn-
mission, was authorized to hear and de-
termine applications for ciUsenship in any
of the Five avilized Tribea. By that act
the rolls of citlzenahlp of those tribes aa
they then exteted were oonfirmed and the
Commission commanded in determining ap-
plications for citizenship to "give due force
and effect to the rolls, usages, and customs
of each of said nations or tribea." It waa
provided by the Act of June 7, 1897 (30
Stat, at L. 84, chap. )), that the term
"rolls of citizenship" should mean "the last ^
authenticated rolls of each tribe which have ^
been approved by*the council of the nations, *
and the descendant* of those appearing on
such rolls," and certain others specified who
had been lawfully added to tlie rolls. By
the Curtis Act of June 28, 1808 (SO Stat,
at L. 406, S02, chap. fil7), the Commission
was authorized and directed to make correct
rolls of the citizens by blood of the Creek
Tribe, eliminating from the tribal rolls snck
names as might have been placed thereon
by fraud or without authorl^ of law, en-
rolling such only as might have lawful
right thereto, and their descendants bom
since such rolls were made. It waa pro-
vided that the Commission should make
sneh rolls descriptive of the pereous thereon,
,A_.OOglC
ar SDPSKlfE OOUBT REPORTBB.
Oat. Tuc,
■o Uiat thej might be Identified tharebj, and
the Commisiion wsa authorked to take a
ceoBUB of each of said tribes, or to adopt
•nj other meant bf them deemed neceauiry
to enable them to make such rolls, with Uve
right of access to all loUs and records of
the several tribes, and with authori^ to
administer oaths, examine witneucs, and
send for persons and papers. The rolls so
made, when approved faj the Seeretar; ol
the Interior, were to be final, and the per-
•ons whose names were found thereon, with
their descendants thereafter bom to tbem,
with such persons as might intermarry ac-
cording to tribal laws, were alone to con-
stitute the several tribes which they repre-
■ented. By g 28 ol the Creek Agreement
of Uarch 1, 1001 (31 SUt. at L. 661, 870,
chap. S7Q), it was provided that all citi-
sens who were living on the Ist day of
April, 1800, entitled to be enrolled under
the above provisions of the Curtis Act,
ahouid be placed upon the rolls to be made
by the I>awea Commission under that act,
and provision was made for allotment to
the heirs where any such citisen had died
since that time. "The rolls so made by said
Commission," the act continues, "when ap-
proved by the Secretary of the Interior,
ehall be the flnal rolls of citizenship of aald
tribe, upon which the allotment of all lands
gc and the distribution of all moneys and other
^ property of the tribs shall be made, and to
* no 'other persons." This agreement was
ratified by the Creek Council Uay 2S, 1001
(3Z 8Ut at L. 1071).
The legislation which we have outlined
Indicates the purpoae of Congreas to make
provision for the partition of the lands be-
longing to the Creek Nation among the
members of the tribe, and to that end it
aathorized the Dawes Commission to make
investigation and determine the names of
such as were entitled to be on the rolls of
citizenship and to partidpate in the divi-
sion of the tribal lands. This purpose, in-
dicated in the Curtis Act of 189S, was
emphasized by the so-called Creek Agree-
ment of IDOl, subsequently ratified by the
tribe. In that act the Commission was
authorized to investigate the subject, and
ita action, when approved by the Secretary
of the Interior, waa declared to be final.
There waa thus constituted a quasi Judicial
tribunal whose judgments within the limitt
of its jurisdiction were only subject to at-
tack for fraud or such mistake of law or
fact as would justify the holding that its
Judgments were voidable. Congress, by this
legislation, evidenced an intention to put an
end to controversy by providing a tribunal
before which those interested could be heard
and the rolls authoritatively made np of
those who were entitled to partidpato In Uie
partition of the tribal landa. It was to the
interest of all concerned that the boM-
ficlories of this division should be aaear-
tained. To this end the Commission waa
established and endowed vritk anthori^ to
hear and determine the matter.
A correct eoncliuIoD waa not necessary
to the finality and binding character of its
decisions. It may be that the Commission,
in acting upon the many eases befors it,
made mistakes which are now impoaaibla
of correction. This might easily be so, for
the Commission passed upon the rights of
thousands claiming membership in the tribe
and ascertained the rights of others who did^
not appear t)efora it, npon the msrlta of^
whose standing the^mmiation had to pass ■
with tlie best information which it could
Whoi the Coounission proceeded In good
faith to determine the matter and to mot
upon Information before it, not arbitrarily,
but acoording to its beat Judgment, w«
think it waa the intention of the act that
the matter, upon the approval of the Secre-
tary, should be finally ctmduded and the
rights of tiis parties forever settled, aub-
ject to such attacks aa could suceesstully
be made upon judgments of thia character
for fraud or miatake.
We cannot agree that the case is withia
the principles decided in Seott v. McNeal,
164 U. 8. 34, 38 L. ed. 806, 14 Sup. Ct. Bep.
1108, and kindred cases, in which it has beea
held that, in the absoiee of a subjeet-matter
of jurisdiction, an adjudication that liten
was such is not conclusive, and that a judg<
ment based upon aetion without ita proper
subject being in sxistencs is void. In
Scott V. UcNeal It was held that a probaU
court had no jurisdiction to appoint an ad-
ministrator of a living person and to s^
property in administration proceedinga
after finding that he was in fact dead. la
that case it waa held that a sale of the prop-
erty of a living person by order of th»
probate court, without notice to him, neces-
sarily deprived him of due process of l«w
by selling his property without notice and
by order of a court which bad no ju-
risdiction over him in any manner. Th*
notice in such cases to his next of kin,
the court held, was not notice to him, and
to make an order undertaking to deprive
such person of his property would be to
take it by a judgment to which the living
person was not a party or privy; and it waa
held that jurisdiction did not arise from
tlie mere finding of the court that the person
whose property was thus taken was In fact
deceased. In the present case the govern-
ment had jurisdiction over these lands. It
had the authority to partition thsm among
the members of the tribe. Shnlthia v. Mo-
,A_^OOglC
UI«.
UNITED STATES T. WILDCAT.
Dougal, 9S C. C. A. 616, ITO Fed 629, 634;
e HcDougal r. McKay, 237 U. 8. 372, 3S3, SS
3 L. ed. 1001, 1006, 36 Sup. Ct. TUp. CDS.
* 'For this purpose It determined to divide
the l&nda Mnong those living on April 1,
1899, and conatituted a trlbtmal to investi-
gate the question d{ membership and conse-
quent right to share tu the diviuon. We
think the decision of aucb tribunal, when
not impeached for fraud or mistaks, con-
elusive of the question of membership in
the tribe, when followed, aa was the ease
here, by the action of the Interior Depart-
ment confirming the allotment and ordering
the patents conveying the lands, which were
In fact issued. If decisloni of this charac-
ter may be subject to annulment in the
manner in which the government ledES to
»tt*ck and set aside tills one, many titles
anppoaed to be secure would be devested
many years after patente Issued, upon show-
ing that the decision was a mistaken one.
^B rule is that such decisions are presum-
ably based upon proper showing, and that
they must stand until overcome by full and
wmvincing proof lufScient, within the rec-
ognized principles of equity jurisdiction In
cases of tliis character, to Invalidate them.
Maxwell Land-Qrant Case, 121 U. S. 326,
879, 381, 30 L. ed. Q40, 968, 969, 7 Sup. Ct
Rep. lOlS; Colorado Coal ft I. Co. v. United
SUtes, 123 U. S. 307, 31 L. ed. IS2, 8 Sup.
Ct. Rep. 131.
Aa to the second eonteotlon, that the Com-
mission acted arbitrarily and without evi-
dence of the fact that Vilocco was living
on April 1, 1809, there ts no attack upon
the finding of the Commission for fraud,
and this record shows an earnest attempt
to conform the rolls to the requirements of
tlie law.
Thlocco's name appeared on the Trilial
Rolls of 1B90 and 1S96 and on a census
card mads by a clerk of the Conunission In
1897.
An enrolling clerk with the Dawes Com-
Blseion teetiSed that he entered the name
of Barney Thlocco upon the eenauB card on
Hay 24, 1901 } that at that time there were
ft great many names on the old rolls nn-
MGOunted for, and the parfy went to Ok-
^nulgee to get them to come out and get
JJthem enrolled; that a great many were
• brought in; that Thlocco was one of those
who were unaccounted for at that time, and
the witness could not say whether his name
was taken from the old census roll or wheth-
er someone appeared and asked for his en-
rolment; that after Thlocco's name was
listed there wa« some investigation upon
the question as to whether or not he was
living or dead on April 1, 1809, but the
Commission would have to be eatisfled or
have information of some kind that he was
living on that date; that the Commissioa
knew that Thlocco was dead in 1001, and it
apparently was satisfied that he was living
on April 1, ISS9; that they would ask town
kings and town warriors when they came in
and anybody else if tiiey knew this or that
about the applicants; that because of a dis-
crepan(7 between the ages of Thlocco on the
census cards they must have had some in-
formation other than the old census card;
that the invariable custom and practice was
never to fill out one of the cards until they
had aome Information from some source
with reference to the question as to wheth-
et the applicant was living or whether he
hod died prior to April 1, ISOS; that the
Commission never arbitrarily listed any
name; that no name was listed solely be-
cause it was on the Boll of 1806, but some
particular individual evidence was required
outside of that roll; that before the new
rolls were tent to Washington the clerks
and the chairman of the Commission would
get together and go over every one of them.
The clerk who made out the census card
in 1807 testified that, as chief clerk of the
Commission, he helped In the enrolment;
that a notation on the census card, "died
in 1900," was In his handwriting, but that
he did not know who had given him the
information or what use was made of the
notation, except that it was intended that
when the Commission came to pass on that
name for final record on the roll, an in-
quiry should be made m to when Thloccon
died or whether he was dead, and get the^
proper affidavit* and death proof; that the*
Commission did not arbitrarily enroll any
Creek citizen without evidence, and that in
every single case If the applicant did not
appear, someone who was regarded as re-
liable appeared for him and gave evidence
until the ConunisB loner was satisfied that
he belonged on the roll; that whenever any
question was raised by the Creek Nation
or its attorney with reference to the right
to enrolment, or for any reason as to wheth-
er the applicant was living or dead, tliere
was generally testimony taken in tliose
cases; that with reference to those people
whose name* np to March, 1901, bad not
been accounted for, there were lists of these
made and sent to the various town kings
and various inquiries were made that way
and report came hack; that sometimes the
party addressed came In and gave verbal
testimony, and It it seemed clear to the
Commission it was probably not reduced to
writing; that it there was any question with
reference to the matter it probably was re-
duced to writing; that the Commission had
to be satisfied from the records; that the
Commission never passed upon a card unUl
it woa completed; that the information may
,A_iOOglC
SS6
87 SUFEXUE COUBT BXFORTEB.
Oor. TKbm,
hAve been ptdied np pleeemul over « yeu
or two, but tka CommiBBion was ■atisfled
tliAt the pu-ty wu entitled to enrolment,
uid the record* were made np for ths pur-
poH of the information of the Commiuion,
«nd to ahow such information u wa« necea-
MU7 t« enehle th« CommlMion to le^eh a
decision.
One of the enrolling elerke at Okmulgee
testified that If iutormatiou waa present
that a nams wu entitled to go on the rolls,
the roll waa completed at Okmulgee; that
if the CommlBsion did not have this inform-
ation they did not complete it; that the fact
that Barney Thlocco'a card was completed
at Okmulgee Indicated that the part; who
wrot« the card was satisfied tliat Ihlocco
waa living on April 1, 1890, and aatlafied
Sfiom evidence; that there waa in all casea
■ some evidoice aa to whether the citizen*waa
living or dead on April 1, 1BS&, Utara the
rolla were recommended to the Secretary of
the Interior.
The acting chairman of the Dawes C<»n-
misaioD teatifled that tbey did not, to his
knowledge, ever enroll any nian without
tft'^ipg some evidence, information, ot elicit-
ing knowledge from some source other than
the tribal rolla that he waa entitled to lie
enrolled, and it waa never permitted to he
done; that the purpose was to find out
whether a man was entitled to enrolment,
and one of the factors In that determina-
tion was whether he died prior or lulMe-
quent to April 1, 1899; that ha always as-
certained that fact before be enrolled the
applicant, and always aatiofied his mind
on that subject hj evidence outside of the
roll; that every name sent in to the Depart-
ment of the Interior as a name to be en-
rolled and which had been enrolled aa a
member of the Greek Tribe had been Inresti-
gated by some member of the Commiuion at
some place and by evidence outside of the
rolls, and a determination had been reached
that that person was entitled to enrolment;
that he undoubtedly satisfied hlmaelf from
an examination of Thlocco's card whether
Thloeco was living on April 1, IfiSB; that
in securing information the Commiasion had
the aaaistance of the beat men in the tribes
aa well as its own field parties; that when
he would take the card he would have the
card and the clerk would have the achedute,
and he went over it several times with the
clerics, and would find out from the clerk
all the Information the clerk had with ref-
erence to that card several times.
It is true, aa aet forth In the certificate
upon which this case waa originally sent
here, in view of S ^ of the original Creek
Agreement, providing that no person except
a* therein provided should be added to the
colli of eitlzenahip of the tribe after the
date of the agreement, and no person whom-
aoever ahould be added to the rolls after
the ratification of the agreement, which was«
ratified est May 2S, IBOl, that the tribe"
assembled at Okmulgee,* its capital, some*
days before that date, for the purpose of
considering and acting upon the agreement,
and that there was great activity some time
before the ratification upon the part of the
Dawei Commiasion and its officers and
derlca to complete the enrolment of the
tribe; and It la ahown that Thlocco'a enrol-
ment card was made out at Okmulgee on the
24th day of May, IBOl,— the laat day before
the ratification of the agreement. It ia
also true that, in the testimony as adduced
in this record, there was, aa naturally
would be the case, a lack of recollection aa
to the details which attended the enrol-
ment of Thloeco. But there is evidence to
which we have already alluded, showing the
practice of the Commission to make in-
quiries and Inveatigatioaa and to ascertun
the facta aa to the persona enrolled, and that
no person was enrolled without information
that waa deemed satisfactory at that time.
The Commission had before it the tribal
rolls of 1890 and 1S9E. The latter roll waa
made out some six years before the action
of the Commission, and in the abstmce of
proof of Thlocco'a death or aome circum-
stances to give riae to the conclusion that
he was not still living, the CommiaaioB
might well Indulge the preaumption that h«
waa atill alive. Fidelity Mut. Life Asso. v,
Mettler, I8S U. S. 308, 31B, 4S L. ed. V22,
929, ZZ Sup. Ct. Bep. S62.
It is true that the methods followed by
the Commiaaion may not have been the most
aatiafactory possible of determining who
were entitled to enrolment aa living peraoas
on April 1, 1899, but it must be remembered
that there were many persons whose right
to enrolment was being considered, and the
Commission In good faith made an honest
endeavor to keep the names of persona off
the rolls who were not entitled to appear
as members of the tribe upon the date fixed
by Congreaa. We think the testimony very
far from showing such arbitrary action on
the part of the Commission in placing «
Thlocco'a name on the rolls aa would ea-^
tabliah that mistake of law or fact'whick*
ia essential to the impeacliment of the ac-
tion of the Commiaaion. This action was
brought fourteen ye&ra after the enrolment
of Thloeco, and the allotment to bim, baaed
on such enrolment, ahould not be disturbed
except for good and tufflcient reaaons-
It is not contended by the government
that the subsequent action of the Seeretaiy
in striking Thlocco's name from the roUa
had the I^«l effect to accomplish that pur-
pose. Such la ths oootcntioB of tha intsr*
,A_^OOglC
UIS.
TAKEAUS *. FELTTOSBTEIN.
HT
vaien. He teitimtm]' shorn that Thloeoo .
WAS enrolled bj th« CommiflBloii on H»7 24, '
1901, that UiB ftllotment «&• made and tJie
eertiScate therefor igaued on Jnne 3D, 1002,
•ad that patents were recorded in the office
of the CommisHion on April 11, 1003, the
allobnent eertifleata laaued in the name of
Thlocco. On Augnat 25, 1904, the Com-
miraion tranemitted to the Secretary of the
Interior a communication from the Creek
attorney In the nature of a motion to re-
open the matter. On September 16, 1904,
the Secretary of the Interior ordered further
Investigation, and directed that notice be
given to the heiri of Thlocco of the hearing.
He heira of Thlocco were not found, and no
notice waa given them of the proposed hear-
ing. On October 10, 1900, the Commission
reported that the testimony showed that
Thlocco died before April 1, 1399, and rec-
ommended that hie name be stricken from
the roll. On December 13, lODS, the Secre-
tary directed that Thlocco'a name be strick-
en from the roll, and requested the At-
torney General to take action to set aalde
the allotment deeds. We think this action
entirely ineffectual to annul the previous
action ot the government in placing
Thlocco'a name upon the roll and issuing in
hi* name the ceitiflcate and patents as we
have atated. Such action could not Im le-
fally taken without notice to the heirs, and
was void and of no effect. Garfield t. Unit-
ad Statea, 211 V. 6. 240, G3 L. ed. 108, 29
Bup. Ct. Kep. 02; Knapp v. Alexander-
Edgar Lumber Co. 237 U. 8. 1C2, 100, SB
• L. ed. 694, 809, 36 Bup. Ct. Rep. 6IS. In
SUnited States ex rel. Lowe v. Fisher, 223
* n. S. SB, 06 L. ed. 3S4, 32 Sup. Ct. Rep.
190, the Secretary of the Interior, In atrik-
ing namea from the roll of Cherokee dtl-
nns, acted after notice and opportonity to
The fact that Thlocoo waa dead at the
time deedi were issued In his name would
not prevent the title from resting in his
hairs. Section SB of the Act of March 1,
1001 (31 Stat, at L. 801, 870, chap. «7«),
provides that "If any such eltizoi haa died
since that time [April 1, 1890] or may here-
after die, before receiving his allotment of
lands and distributive share of all the funds
of the tribe, the lands and money to which
he would be entitled, if Itving, shall descend
to his heirs according to the laws of descent
and distribution of the Creek Nation, and
he allotted and distributed to them accord-
ingly." The effect of this provision is to
T«st title in the heirs by operation of law.
BkdtoB T. Dill, 235 U. B. 2DB, 807, 208, 69
L. ed. lOS, 100, 35 Sup. Ct. Rep. BO.
Am to the contention that the lands were
■•t selected by Thtocco, and that he was
*■• of tbose arbitrarily placed upon the
rolls, we think it was within the authority
of the Commission to enroll mconhers of the
tribe who, for any reason, refused to make
selections; for the statute (| 3, 31 Stat, at
L. 801, 8S2, chap. 070} provides that "all
lands ot the said tribe, except as herein
provided, shall be allotted among the citi-
zens ot the tribe by said Commission so as
to give each an equal shar* ot the whole U
value, as nearly as may be, in manner fol*
lowing: There shall be allotted to each citi-
zen one hundred and sixty acres of lan^—
boundaries to conform to the govenunMit
survey — which may be selected by him ao as
to Include Improvementa which belong to
him." While citizens were thus permitted
to make their selections for the purpose ot
retaining improvements, it seems clear that
in case any citisen failed to avail hlmselt
of this right. It was permissible for tlLe
Commission to make the allotment.
We think the district court rightly ruled ^
that the government bad not offered evidence Q
competent to'impeach tike validity ot the*
Commission's action and thus to invalidate
the title subsequently conveyed by the pat-
ent to Hlocco with the approval o( Ou
Interior Department.
It follows that the decree of the Distriol
Court, dismissing the hill, should be al-
BALTBUS S. YANKAU8, PIS. In Err,
GoiTBTS ^3)304(22)— EuoB TO Btatb Ooubt
—BcovK or Review— BnuRD or Oauai
BT FXDUai, Oorar.
A judgment ot a state court, entered
after that court had set aside the removal
of the cause to a Federal district court, and
a subsequent order denying a motion to set
aside snch Judgment, and an order of an
appellate state court, alDrming such judg-
ment and order, are not open to review in
the Federal Supreme Court by writ of error,
where the Federal district court, having
first made an order enjoining, until further
notice, further proceedings in the state
courts, afterwards remanded the cause to
the state court on the ground that the
requisite jurisdictional amount was not in-
volved. Such writ of error is practicallv
an attonpt to review, contrary to U. B.
Judldal Code, t 28 (Act March 8, leil, c.
281, m Stat. [Comp. St. 1910, | 1010]) tba
otdet ot a Federal district conrt, remanding
the caoM aa having been improped7 f
pjo. 4OT.]
le tople * KBT-NUHBBR In sU Ker-Nambsred Dlgwts * Indn
A^iOOglC
ST SUPREME COUBT KEFORTEfi.
Oct. Tmc
Argued ud submitted April 10, 1917. De-
cided Ua; 21, 1917.
IN ERROR ta tlie aty Court of New
York City, In the St&te of New York,
to review k judgment of that court, entered
in K suit which had been removed to a Fed-
trtl District Court, end to revierw a further
•rder denying & motion to act aside auch
Judgment, and an order of the Appellate
Term of the Supreme Court of the State,
which affirmed both order and Judgment.
Affirmed.
The fact! ars stated in the opinion.
HeBsrB. Jesse O. Adkliu, Roger Foster,
and Frank J. Felbel for plaintiff in error.
Mr. Jacob W. Hartman for defendants
• *Ur. JnstJce Dar delivered tbe opinloD of
Qte court:
This a writ of error, bringing int« review
a judgment of the cit; court of the city of
New York and an order of that court denj-
Ing a motion to set aside this judgment,
and an order of the appellate term of the
supreme court of the etate of New York,
which affirmed the order and judgment.
The action waa brought in the citj court
b7 Feltenstein and HoBeustein, hereinafter
called the plaintiffs, to recover a contingent
counsel fee of tSOO from Yankaus, herein-
after called the defendant, and fox loans
of $200 and tlOO respectively,— in all, the
sum of tSOO. Bummona and complaint were
served on October 11, 1916. On October IS,
1016, the defendant filed in the ofSce of the
clerk of the city court petition and bond
for the removal of the cause to the United
Btates district court for the southern dis-
trict of New York. The bond was approved
by a judge of the city court. Notice of the
intention to file petition and bond was
served on the plaintiffs on October 16, IQ16.
The ground for removal was diversity of
eltizenahip, and it was averred that the pe-
titioner had a counterclaim exceeding the
sum of $3,000, exclusive of Interest and
costs, and that therefore the matter and
amount in dispute in the ease exceeded that
sum. On October SO, IQIS, a certified i
of the record was filed In the office of Uie
clerk of the United States distHct court
for the southern district of New York, and
an answer was filed setting up the inva-
lidity of the agreements upon which plain-
tiffs' cause of action was based and assert-
ing a counterclaim,
a On October 16, 1S16, plaintiffs moved in
H the city court for an order setting aside
* the bond and the removal of thi^enuse to the
United States district court, 'and direct-
ing that the city court retain Juriadlc-
tioo. This motion came <m ta be heard
before a judge of the city court on October
" 1016, and resulted in an order setting
aside the removal and determining that the
~ >n was not entitled to be removed. This
decision was made upon the basis that the
counterclaim could not be considered in
determining the amount in dispute, in ao far
as to give the Federal court jurisdiction.
Judgment was entered on October 2S, 1916,
for plaintiffs. From this order and judg-
ment appeal was taken to the supreme
court, appellate term. Thereupon, the de-
fendant moved in the United States district
court for the southern district of New York
m order restraining the plaintiffs from
proceeding to the enforcement of the judg-
ment. The matter was heard before Judge
lacombe, sitting as district judge, and on
November 4, 1916, he issued an order
restraining the plaint iSs until further
order, made on proper notice and motion to
remand, from in any way proceeding with
or prosecuting their cause of action In the
city court, or from collecting anything
ander any judgment entered therein. Sub-
sequently plaintiffs moved in the United
States district court for the southern die-
trict of New York for an order remanding
the case to the etate court. This motion
came on for hearing Iiefore Judge Hough,
who granted the motion to remand, and an
order remanding the cause to the city court
was made on the 15th day of November,
19IG. The defendant afterward moved in
the city court to set aside the judgment
rendered while It was allied the suit was
pending in the United States court, which
motion was denied.
Appeal was thereupon taken to the su-
preme court, appellate term, and the judg-
ment and the order setting aaide the
removal and declaring that the case was
still in the city court vrere both affirmed, e
Motion was made by the plaintiffs to dis-S
miss the appeal upon the ground ^at the*
order denying the defendant's motion to
vacate the judgment had become academle
by the affirmance of the order setting aaide
the removal. The appeal was dismissed by
the appellate term. Defendant thereupon
applied to the appellate term for leave to
appeal to the appellate division from the
order affirming the order of the city court,
setting aside the removal of the action, and
from the judgment entered by the plaintiffs
while the action was In the Federal court,
and also from the dismissal of the appeal
from the order refusing to vacate this judg-
ment. Both motions were denied. Defend-
ant then applied to a justice of the appel-
late division, first department, for an order
permitting him to take appeals, and these
applications were denied. In these applica-
tions the defendant set forth that ha had
vA_,OOglC
IBIS.
TAlfEAUS V. FELTENSTEIH.
sea
been denied rights aaierted ^ him under
the Constitution And etatutea of the United
States. Afterwarde * writ of arrcT WH
allowed to this courts
As we view this caea, we titink the Judg-
ment of the court below mnit be affirmed,
•B this proceeding is practicailj An attempt
to review an order remanding a cause at-
tempted to be Ti»noved to the district court
«f the United States. Section 28 of the
Judicial Code [30 SUt. at L. 1095, ohap.
S31, Comp. Stat. 1918, % IDIO] provides that
"Vhenever anf canse ihall be removed from
4UI7 state conrt into an; distriirt court of
the United States, and the district eourt
«1ia11 decide that the cause woe improperly
removed, and order the same to be remAnded
to the state court from whence it came,
•neh remand shall be immedlatalf carried
Into execution, and no appeal or writ of
error from the decision of the district court
■o remanding such cause sbAll be allowed."
After the filing of tbe transcript tn the
United 6tateB district court the mstter cams
on for hearing before Judge Lacombe, and
It WAS ordered that until the further order
of the court tbe plaintiff should he enjoined
^ aad restrained from proceeding in tbe elty
2 court, or from collecting In any manner anj
* judgment entered therein. Accompanying
this order Judge LAComba wrote tbe foUow-
ing memorandum;
"Jurisdiction is too doubtful to WArrant
this court in retaining the cause. Crane
Ga T. GuanlcA Centrale, 132 Fed. 713,
Flaintiff's proper course would bars been to
malce a motion to remand. This ha maj
now do. When such motion is made and
granted the cause may prooaed there; it Is
BOW here. Plaintiffs in the meanwhile may
be enjoined (until remand Is made] from
proceeding further in the state court."
We think tbe affect of this order, read In
the light of the opinion, simply manifested
the purpose of the court to prevent proceed-
lugs while the question of the jurisdiction
«f the United States court was pending. And
did not amount to a decision that that court
had jurisdiction. It is true that an order
«t injunction was granted; but It Is ap-
parent from a reading of Judge Lacombe's
memorandum that his purpose was merely
to enable the district court to bold the case
nntil it decided tiie question of Its juris-
diction. Afterwards the motion came up in
the United States district court, in which
an opinion was delivered by Judge Hough,
wherein be said:
"When this matter was argued the record
on removal was not in court. If it had been
tbe motion would not have been held until
now. The opinion of Judge Lacombe in
Crane Co. v. Guanica Centrale, 132 Fed. 713,
merely states what for many previous years
hod been the practioa of this eourt, — L «,
doubtful eases were always remanded.
"Rullnga of tbie nature are admittedly
unsatisfactory. Connael and parties are en-
titled to a clear-cut statement of tbe law If
It is possible to make one; and it would
seem as if the removal acta were anffleiently
old by this time to enable a oonrt to aelect
what appeared to be the bast of conffieting
"Since no case (irreapeetive of amount^
involved) can'be removed over which the*
United States court might not have bad
original jurisdiction, It has always seemed
to me illogical to consider a counterclaim
in AscertAining the propriety of removal or
remand.
"In tlie state of New York there ia no
compulsion on a defendant to set up a
counterclaim. It is AlwAys optional wltk
the party possessing it to reserve his affirm-
ative demand for an Independent suit.
"Imagine this action brought originally
In this court; the defendant would only
bave been obliged to appear and move on
tbe pleadings to dismiss tbe complaint with-
out prejudice. Such a motion would hav*
been granted as of course.
"Thus it appears that an action of the
most trilling nature may (under defend-
ant's contention) be removed to this court
at the option of defendant if hn can assert
a counterclaim of sufficient sise. That this
was never the Intent of the statute I am
clear. Considering, however, tbe confusion
of decisions, and (so far as I know) the
failure of late years to observe the differ-
enca between the Act of 1876 {18 SUt. at
L. 470, chap. 137] and that of I88B [25 SUt.
at I*. 433, chap. 8Q8, Clomp. Stat 1910, |
901(1)], I should hAve felt impelled to con-
sider And classify decisions were it not for
the consideration next to be stated. If It
be true that, by a preponderance of rulinga,
tbe afflrmAtive claims set up in an answer
are to be considered in determining juri^
diction, it is at least necessary that som»
where and in some shape the defendant who
sets np counterclaims shall plead them in
a manner which enables his opponent to
criticize them, modify them, or expunge
them, as may be proper under the rules of
good pleading.
"In this case, and In any similar case
under the Act of 1888, there Is no answer.
Tbe only knowledge that to this moment
plaintiff has r^ardlng defendant's counter-
claim Is continued in the petition for re-
moval,— the language of which petition
sets forth no reason whatever for tbe r«-^
covery by tbe defendant from the plaintiff^
of any'sum of money at all. The petition*
says in substance that tlie defendant has a
counterclaim, without stating what it la.
.A^^OOglC
St SDFREUX COUKT BEPORTER.
Oor. TraM,
Vnaf«v«T 1DXJ ke the preferred mfa, wbea
fat ft pro^r ud formal mumer the Mnoont
In eaatTotwtj betwMn the pftrtiea ii made
to appear and ihom to exceed 93,000, ex-
ehisive of taitereft and eoeta, I feel jnetifled
hi holding and do hold, that it la impoasl-
Ue to ihow that meh oontroveraUl amount
•zUta In U17 luch manner aa thia defendant
h*a attempted."
For the reawna stated, the eaae waa re-
manded to the dty court. We think theae
orders, with the aceompanying memoranda
and opinion, taken together, ahow tliat the
district eoart denied its Jurisdiction, and
remanded the causa to the city court. In
this attitude of the ease, the judgment of
the itste court must stand, a* the effect
of the orders of the district eonrt was to
hold the attempted removal unauthorlied.
This oonrt haa more than once held that
■uch an order ts not subject to reriew, di-
rectly or indirectly, but is flnal and conclu-
sire. HtsBOtiri P. E. Co. t. Fitzgerald,
leo D. 8. 6S6, 580-^83, 40 L. ed. SSe, 542,
543, 10 Snp. Ct, Rep. SBS) McLaughlin Bros.
T. Hsliowell, 22B U. fi. 278, 280. GT L. ed.
B36, 830, 33 Sup. Ct. Sep. 46S; Faciflc Live
Stock Co. T. Lewis, 241 U. S. 440, 447, «0
L. ed. J084, 1088, 36 Sup. Ct. Rep. 837.
Nor are we able to find anylhlng in the
oonduct of the plaintiffs estopping them
from contesting the juriediction of the Fed-
eral court, or amounting to a waiver of
their right to the l>enBfit of the Judgment
remanding the case from the district court.
It follows that the Judgment of the City
Court of the City of New York must be
MBrmed.
Ur. Justice Pitney o
s in the result.
OU O. S. IM)
J08EPHINB B. LEWIS, Executrix of the
Estate of James Lenie, Deceased, Appt.,
tJNITED STATES.
Public Lands C^22— Iiifi.ixd Bxpkai, or
Aci Cbbatino Office,
1. The speclflc appropriation in the
Sundry Civil Appropriation Act of March
4, 1900 (35 Stat at L. D45, chap. 209), to
enable the Secretary of the Interior to com-
plete the unfinished drafting and Seld-note
writing pertaining to surveys in the states
of Minnesota, North Dakota, and Louisiana,
"caused by the discontinuance of the offices
of surveyors general in those states," is
tantamount to a direct repeal of the Act
Of March 3, 1831 (4 Stat, at L. 402, chap.
116), creating the ofBce of surveyor general
of Louisiana, and had the effect of abolish-
ing that office.
IDd. Note.— For oUsr caaes. set PubUe LanOa.
OsiiU Dl(. t a.]
Ofpiobs iS=>IO0(2)— CouPEKaATioir— Fbeb.
I. The BUrv^or general of Loul^na
— „ not claim as Ma personal property feea
exacted by him under the authority «( tiM
Act of March S, lUl (4 SUt. at L. 402,
elup. 118), I 6, for furnishing eopiee of
plats of surreya and transcripta from th*
records of Ids office, since the prohibitiou
of n. S. Rev. Stat. | 1705, Comp. Stat. ISIS,
I 3234, declaring that "no officer In any
branch of the public service, or any other
person whose salary, pay, or emolumenta
are fixed by law or regulations, shall reoeiva
any additional pay, extra allowance, or oom-
penaation in any form whatever, for th«
diabursement of publio mouey, or for anj
other service or duty whatever, unless th«
same Is authorized by law, and Qie appro*
priation therefor explicitly states that it
is for such additional pay, extra allowance^
or compensation," cannot l>e r^arded aa
inapplicable on the theory thnt these feea
were emoluments "flxed by law" by reason
of the Aat of April 21, 1606 (2 Stat, at U
301, chap. 39), g 0, giving each feea to Hm
principal deputy survey ore for the territory
of Orleans, and of the Act of March 3, 1831
(4 Stat, at L. 402, chap. 110), providing
that the surveyor general of Louisiana shall
hsve the same authority sj such principal
deputy surveyors.
(Od. Note.— JTor otber eaaaa. Me Offlasra, Csot.
Dlt. I 151.J
[No. 107.]
APPEAL from the Court of Claims to rtt-
view a Judgment dUmissing a petition
seeking to recover salary and fees alleged
to be due to the Surveyor General of Louisi-
ana, Affirmed.
See same cate below, 60 Ct. CL 229.
Statement by Mr. Justice Dny;
This suit was inaUtuted by James Lewli^
and revived upon his death by Josephine B.
Lewis, aa executrix, to recover the sum of
t2,000 salary claimed to be due him fron
the United States as surveyor general of
Louisiana for the fiscal year beginning July
1, 1009, and ending June 30, IBIO, and to
recover the further sum of $2,287.60,
claimed to belong to him as perquisites of
this office and paid over his protest into
the Treasury of the United States Iratween
May 1, 1907, and June 30, 1909, at the dt
of $4,2S7.S0, for which he prayed 'judgment.*
The court of claims found for the United
States on both items and dismissed claim-
ant's petition [50 Ct. CI. 226), and it if
from this judgment that the appeal haa
been taken to this court.
From the findings of fact made by the
topic A KET-MUUBBR In all Kej-Numbered DlBWta * bOmo^^
I&IS.
LEWIS T. UHITSD STATEa
court of clalma, Um foUowing appekra: On
«r kbout iMxmarf 18, 1905, June* Lewis,
who had previouBlj held the office, w»a re-
Appointed ftnd recommiBiioned Burrejor gen-
eral of Loiiialana, ind under ttiU commla-
eion he administered the dutlei of ths office
continuoualj until Jul; 16, 1000, on which
dat« he wa.a deprived of the poaaeBaion and
enatodj of the recorda and other property
of the office bj John H. Batchelor, a clerk
detailed from the General Land Office of
the United States and acting under direc-
Uons from the CommiaaioDer of the Oen-
entl Land Office u will hereafter more
lull J appear.
On December 7, 1008, I^ewia received a
letter from the Commisaioner of the Gen-
eral Land Office, dated December 5, 1908,
in which the CommiMioner Informed him
that it was proposed to discontinue the
office of Burvefor general for the district
of Louisiana on June 30, 1009, and on or
about Ma; 13, 1000, he received a letter
from the Commissioner, dated Uaj 11, 1000,
reading in part as foDows:
"Aa the office of the surveyor general
of Louisiana will l>e permanently closed and
discontinued on July 1, 1909, the records
thereof, excepting such as may be required
for use in tbia ofBce, will be turned over to
the state of Louisiana when proper provi-
aion has been made by the legislature for
their safe-lceeping and providing for free
accesa to them by the authorities of the
United SUtea, aa provided by SS 2218, 2220,
ftod 2221, Revised Statute* (Comp. Stat.
lOie, £9 4451,4453, 44S1).
"Aa no proviaion hae been made by the
l^alature for the reception of th* records
nnder th* oonditions above stated, it will be-
^cone necessary to appoint a custodian of
Mtbem on July 1, at a salary of 11,000 per
• annum, who will 'retain them in bis cua-
tody until the required law Ixas bean pro-
On or about June 10, 1009, Lewis recdved
from the Commisaioner a letter, aa follows:
"A* yon have been verbally informed that
Congresa omitted to Include an appropria-
tion for the maintenance of your office, you
■re aware that it will be neeeaaary to dls-
eontiniie it after June SO neit.
"You are now advised that Mr. John H.
Batchelor, of this office, has been detailed
to viait your office and supervise the trans-
fer of ita recorda to the state building at
Baton Rouge, Louisiana; also to select auch
ftf the records and government property as
tt ia thought best should lie moved to this
tUj f or nae in till* office. Yon are directed
to fumlah him all facilities for carrying out
this purpose and give Um ■ ~
M hs may need.
*?t I* assumed that yo>n have almdy pre-
pared an Inventory of the recorda and prop-
erly, which will be verified by Mr. Batcbo-
lor.
"n^e state authorities having failed to
provide by legislation for the custody and
care of the records which by law ara to b*
turned over to them, it will be neceasary,
pending the enactment of suitable provi-
eion for a place for the records, to give the
same in charge of a custodian. Ur. Arthur
Gascon, of your office, ha* been aelected for
thia office, and he will receipt to Mr. Batche-
lor for the recorda by schedule.
"Property which la not a part of the reo-
orda, auch aa furniture not belonging to
the Treasury Department, and stationery,
including surveying instruments, drafting
instruments, etc., will be examined by Mr.
Batchelor, and that which is serviceable
and can be transported profltably to this
city will be boxed up for tranomission. The
remainder will be stored and advertised for
sale at auction, either under Mr. Gascon or
other officer, or turned over to the local landt.
office. 5
• "Mr. Gaacon will be instructed *ep»rat«-*
ly.»
Pursuant to the plan outlined in this let-
ter, on June 10, 1909, Batchelor, a clerk do-
tailed from the General Land Office, acting
under inatructiona from the Commissioner,
dated Judo 17, 1000, arrived at the sor*
veyor general's office in New Orleans, Louisi-
ana, and assumed supervision of the closing
of that oCBee and the disposition of th*
records and other property therein, cauaed
iuventoriea of said records and other prop-
erty to be made, and, on July 16, 1900, th*
same having been completed, took said rec-
ords and property out of th* possesaiuD and
custody of Lewis and gave to him a formal
receipt therefor. Thereafter, on the sam*
day, Batchelor, acting nnder his instmo-
tions, turned over th* records and oth*r
property of the office to Arthur Gascon, for-
merly chief clerk la th* office of the sur-
veyor general, aa ouatodian thereof, Qaaeon
having beeo appointed custodian thereof by
the Secretary of the Intorior on June 16,
1000, to take effect July 1, 1900, the ap-
polntmtnt being in the following language;
"Arthur Gascon, of Louisiana, is hereby
appointed ouatodian of the documents and
records pertaining to the office of the sur-
veyor gmeral of Louisiana npMi the dlseon-
Unuance of that ofRce, at a aolary of $1,000
per annnm, to take effect upon July 1, 1009.
"Salary payable from the appropriation
for completing Held notes, etc., of surveys
In Minnesota, North Dakota, and Louisiana.
"By tranafer from chief ciak, oSe* «t
■w^yor general of Loniilana.''
,A_^OOglC
87 SUPREME OOUBT EEPORTBa.
OOT. TXBH,
On JuiuuT 9, 191S, Uie President iwued
tJie following order:
The SecreUrj of the Interior.
Sir:—
The Action of the Interior Department In
discontinuing the office of the United States
•nrveyor genera] for the district of Louisi-
ana. from and after June 30, IQOS, as ihown
M by tha letters of the CommiBsioner of the
■ General Land Office to James Lewis, sur-
vejoT general of Louisiana, dated Decem-
ber 6, 1008. and May 11, IBOO, and the ap-
pointment by the Secretary of the Interior,
under date of June 16, 1909, of Arthur Gaa-
oon as custodian of the records of the office
of the aurveyor general of Iiouisiana, to take
tttetst July 1, 1909, copies of which letters
and appointment are hereto attached, is
hereby ratified and confirmed.
Woodrow Wilson, Prendent
He records of the surreying district of
Louisiana were not completed on June 30,
1909, or on July 16, 1909, and the state
of Louisiana did not provide by law for the
reception and safe-keeping as public records
of the field notes, maps, records, and other
papers appertaining to land titles in said
state, which belonged to the office of United
States surveyor general of Louisiana, and
for the free access to the same of the au-
thorities of the United States, until June
10, 1010, on which day the governor of the
state approved an act of the general assem-
bly known as Act Ko. 0 of the Session Acts
of the general assembly of the state of
Louisiana for the year 1910, and passed for
that purpose. Acting under authority
which was veatod in him for that purpose
by this act of the general assembly, Fred
J. Grace, register of the state land office
of Louisiana, on June 30, 1910, formally
receipted to Qaacou, custodian at aforesaid
for the records of the United States sur-
veyor general's office of Louisiana, for the
plats, field notes, books, papers, eto., con-
stituting the records of said office, and on
that day Gascon, tor and in behalf of the
United SUtes, formally delivered the said
records to tlie state of Louisiana in the per-
son of ita duly authorized representative,
Fred J. Grace.
For the period beginning July 1, 1909,
and ending June 30, 1910, both inclusive,
Lewis received no salary or compensation
% from the United States aa surveyor general
JJ of Louisiana.
* *1)uring Lewis's period of service as sur-
veyor general of Louisiana he furnished
copies of plats of surveys and transcripts
from the records of his office to various in-
dividuals requiring them, and asked and i
nceived therefor from such individuals lees.
' aa compensation for the service rendered In
furnishing such copies and transcripts. In
amounts equal to or less than those au-
thoriied in said g 6 of the Act of Congress
^proved March 3, 1831 (4 Stat, at L. 492.
chap. 116) entitled, "An Act to Create the
Office of Surveyor of the Public Lands for
the State of Louisiana." Some of such
copies and transcripts were certiHed by him
under the seal of his office, and for sntJi cer-
tifications he received from the individuals
requiring the same fees at the rat« of 91
for each certificate and seal. From the
time Lewis assumed the authority, powers,
and duties of his office up to and including
April 30, 1907, he retained aa his personal
property the fees received by him, constru-
ing said § 6 of the Act of March 3, 1831,
as ctmferring upon him this right, in addi-
tion to and separate from his salary as snr*
veyor general.
From the time the office of surveyor gen-
eral for Louisiana was established up to the
time Lewis last ent«red upon its duties, tha
incumbents of the office rendered similar serv-
ices to individuals and received and retained
fees for such services as their personal
property, and in this construction of the
Act of March 8, 1S31, up to and including
April 30, 190T, the CommisBioncr of th«
General Land Office and the Secretary of
the Interior acquiesced.
Upon April IS, 1007, the Commissioner
of the General Land Office issued a circular
order to Lewis, requiring him to desist from
retaining these fees as his personal prop-
er^, and requiring him, when application
ahould be made by individuals for exemplified
copies of plats or other records in bis office,
to first furnisli ths applicant with a memo-^
rasdum of the exact cost thereof at the^
rates* established by law for registers and*
receivers for like services, and to require
said applicant to deposit the amount indi-
cated in a United States depository to the
credit of the Treasurer of the United States,
and directing Lewis, after that should iiave
been done, to furnish the copies and trans-
scripts ordered.
Lewis protested against this order in a
letter to ths Commissioner dated May 3,
1007, In which he informed the Commis-
sioner that hie office had hitherto based its
charges for copies from its records upon
§ 6 of the Act of March 3, 1831; that the
rates established by law for registera and
receivers for furnishing such copies wer«
not applicable to his office; and that the
feeri for furnishing such copies had been
construed by the surveyor general of Louisi-
ana as perquisites allowed to him, as ap-
peared from the correspondence of his office
with the General Land Office as far back
as 18S0. To thia letter ths Commissioner
,A_.OOglC
UI«.
LEWIS T. UNITED STAINES.
replied, on Hay 9, ]SOT, tbat a* Aet of
Huch I, 183], being unrepealed, Lewla
■houid eoatinufl to charge the fees eatab-
llahed under the act, to the ertent of whleli
direction the circular order ot April 16,
leOT, etood modiSed as far as Lewis's office
was concerned, but that all feet of what-
ever nature received from parties desiring
copies of the records must be covered Into
the Treasury, and the practice of receiving
them as peraanal property be discontinued.
Upon receipt of this letter, Lewis ad-
Iressed a secoud letter of protest to tbe
Commissioner. The CommissioneT replied,
on May 31, igOT, that his order of April 15,
ISOT, was considered to be in the interest
of good admin Istrstion and must be strictly
observed.
Under tUs order ot April IS, 1007, there
was deposited In the United States fub-
treaaury at New Orleans, by individuals la
payment (or copies furnished by the lur-
reyor general's oEBce from May 1, IMT, to
^ June 30, 1909, inclusive, the sum of SS36.66.
2 On October 19, 1907, the CommlsBioner
• iHued to Lewis *a further circular order
relatlTa to these fees, modifying the circular
order of April 16, igOT, and requiring him
thereafter, when application should be made
to him by individnale for exemplified copies
of plats or other records In his office, to
first furnish the applicant with a memo-
randum of the exact coat thereof, to ra-
foire the applicant to pay such cost to him,
aa surveyor general, and upon receipt of
the amount to prepare the copies desired,
■ad to deposit the sggr^ate amount thus
twceived each weelc to the credit of the
Treasurer of the United States on account
of "Receipts for furnishing copies of rec-
ords," and to forward the dnpllcat* cer-
tificatee of deposit to tbe office cj said Com-
minioner in Waahlngton.
Upon receipt of this circular order, Lewis
wrote another letter of protest to ths Com-
■ilasioner.
Under the circular order of October 19,
1907, Lewis deposited In the United SUtes
■ubtreasury at New Orleans, to the credit
ot the Treasurer of the United SUtes, bo-
tween Uay 1, 1007, and June 30, 1B09, in-
dusiro, the eum of |1,B6S.1S, rwelTed by
Um aa fees from individuals.
Tbe sums deposited by individuals or by
Lewis, from Uay 1, 1907, to June SO, 1900,
Inclusive, aggregate the sum ot t2,287.S0,
BO part of which has ever been rocoived by
Lewis from the United States.
Meesrs. L. Russell Alden and Edward
F. Colladar tor the appellant
AssiBtant Attorney General Thompaon
for appellee.
Mr. Justice Day, after making the fore-
going atatement, delivered the opinion at
the court:
Section E207 of the Revised Statute!
(Camp. Stat 1016, S 4435] provided tor thea
appointment ot a surveyor general for theS
surveying 'district of Louisiana; j 8208*
fixed his salary at the sum of C2,000 a
year; t 2217 (Comp. SUt 1910, S 4460)
fixed the term ot office at four years from
the date of the commission unless the in-
cumbent should resign, die, or lie removed
from office within that period.
The claimant insists that Lewis was en-
titled to tbe salary of Uie office for the year
ending June 10, 1910, notwithstanding the
facts found by the court of claims as to the
disoontinuaoce ot the office, as it was not
until that date that the state of Louisiana
duly provided for the reception and safe-
keeping of the papers and records of the
office, which were delivered by the custodian
to the state on June 30, 1910.
Sections S21S, 2E10, 2221, and 2222 ot
the Revised Btatntes [Comp. Stat 1916,
as 4461, 4452, 4464, 44SB), provided as fol-
"S218. The BecreUry of the Interior shall
take all the necessary measures for the
completion ot the surveys in the several sur-
veying districts tor which surveyors gen-
eral haTe been, or stay be, appointed, at
the earliest periods compatible with the
purposes contemplated by law; and when-
ever the surveys and records ot any such
district are completed, tbe surveyor general
thereof shall be required to deliver over to
the eecretary of state of the respective
states, including such surveys, or to such
other officer as may be anthoriied to re-
ceive them, all the field notes, maps, records,
and other papers appertaining to land titles
within the same; and tbe office of surveyor
general in every such district shall tber^
alter cease and be discontinued.
"2210. In all cases where, aa provided In
the preceding section, the field notes, maps,
records, and other papers appertaining t«
land titles in any state are turned over ta
the authorities ot such state, the same au-
thority, powers, and duties in relation to the
survey, resurvey, or anbdivlBlon ot the landa
therein, and all matters and things con-
nected therewith, as previously exercisedii
by the surveyor general, whose district In-J
eluded such state, shall'be vested In and*
devolved upon, the Commissioner of the
General Land Office."
"2221. The field notes, maps, records, and
other papers mentioned in section twenty-
two hundred and nineteen shall in do ease
be turned over to the authorilies of any
state, until such state has provided by law
for the reception and safe-keeping of the
D,at,z.d>,.'^-.00'^IC
S74
87 8UPREUE COUBT BEPORTBR.
Oct. Tbbki
MUM M pnblie rBcords, and ti>T the allow-
•ace of free aecms to the ume by the mi-
thoritieg of the United Sl&tea.
"2222. Ereij surveyor general, register,
and receiver, except where the Preaident
•ee* causa otherwise to determine, Is au-
thorised to oontinue In the uninternipted
discharge of bis regular official duties, afl«r
the day of expiration ol his commiuion, and
nntU B. new commiBsion is issued to him for
Uke aame office, or until the day when a suc-
cessor enters upon the duties of such office)
and the existing oEflcial bond of any officer
■o acting shall bs deemed good and suffl-
dent, and in force, until the date of the
approral of a new bond to be given by him.
If recommissioned, or otherwise, for the ad-
ditional time he may so continue officially
to act, pursuant to the authority oJ this
It is the contention of the gOTemmeDt
that the action of the Secretary of the In-
terior with the approval of ths President
had the effect to discontinue the offlee as
of July 1, 1009, and that in fact the office
of surv(!yar general was discontinued after
June 30, 1Q09. In the Sundry Civil Appro-
priation Act of March 4, 1009 (86 Stat, at
L. 045, eST, chap. 2B9), it was provided:
"To enable the Secretary of the Interior
to complete the unfinished drafting and field
note writing pertaining to surveys In the
states of Minnesota, North Dakota, and
LouiBinna, caused by the discontinuance of
the olEces of the surveyors general in those
itates, sis thousand five hundred dollars."
•t And in the appropriation bill for that
> year Congress' made no provision, sueh as
kad been customary In former years, for
aalariei of these officials.
The court of claims held that this act was
•ffectual to aboliah the office of surveyor
general for Louisiana. We deem that a cor-
rect conclusion. It Is true that repeals by
implication are not favored. The repug-
nancy between tha later aet upon the same
subject and the former legislation must be
auch that the first act cannot stand and be
capable of execution consistently with the
terms of the later enactment. As we view
It, such conflict does appear In this instance.
It must be assumed that Congreai was
familiar with the action of the executive de-
partment UDiiertaking to terminato the of-
fice, and when Congress acted upon ths as-
sumption tliat the office was abolished, and
provided for the unfinished work pertaining
to the BUrvejs, "caused hy the discontinu-
ance" of the oflice, Buch action was tonta-
mount to a direct repeal of the act creat-
ln<; the office and had the cITect to abolish it
As to the part of Lewis's claim which is
for fnt, it is atlrged in his petition, and
found to be a fact by the court of claims,
that during the entire period of his servioa
as surveyor general he furnished copies of
plats of surveys and transcripts from the
records f>f his office to various individuals
requiring them, receiving therefor eompen-
sation as authorized by | S of the Act of
Congress of March 3, 1831 (4 Stat ftt L.
492, chap. 116), which U as followa:
"He surveyor general . . . shall b*
allowed an annual salary of two thousand
dollars . . . and that the fees hereto-
fore authorix«d by law for examining and
recording surveys be, and the same are here-
by, abolished; . . . and for everj copy
of a plat of survey, there shall bo paid
twenty- five cents, and for any transcript
from the records of said office, there shall
be paid at the raXe of twenty-five cenU for
every hundred words by the individuals re-n
quiring the same." S
*It had been the custom of Lewis and hia*
predecessors in office to retain these fees aa
their personal property; but by virtue of
an order from the Commissioner of the Gen-
eral Land Office, the amounto realized from
these fees between May 1, 1007, and Juim
30, lOOB, being 82,287.60, were paid into th«
Treasury of the United States. It is ap-
pellants' contention that this amount ia now
due and owing Lewis's estate, under th«
torma of § 6 of the Act of March 3, 1S31,
above quoted, Interpreted in the lij^t of
established custom.
Section 1TS6 ol the Revised Statutes
(Comp. Stat. leiS, i 3234) provide*:
"No officer in any branch of th« pnbll*
service, or any other person whose aalaty,
pay, or emolumenU are fixed by law or regn-
lationa, shall receive any additional pay,
extra allowance, or compensation. In any
form whatever, for the disbursement of pu^
lie money, or for any other serriee or duty
whatever, unlsH the same la authorised
by law, and ths appropriation therefor «x-
plicitly states that it Is for such additional
pay, extra allowance, or oompenaation."
Claimant contends that this section shows
no intention to Interfere with the enjoyment
of any emolumenU already fixed by law, aa
the addiUonal compensation, the reealpt
of whleh it prohibito, is compensation ad-
ditional to "salary, pay or emolumoito
, . . fixed by law or regulations." To
establish that these fee* were emolument*
fixed by law, the claimant pointa to the Aok
of April 21, ISOfl (2 Stat, at L. 8B1, tbmp,
30), by I D of which it is provided:
"The surveyor of the pnblio lands, sonth
of Tennessee, be, and ha is hereby directed
to appoint a principal depn^ for each o(
the two land districta of tha territory of
Orleans . . . and each of the said prin-
cipal deputies shall receive an annual oom-
penaation of five hundred dollars, cad !■
,A_.OOglC
Ul«.
DU FONT DB KEHOUItS POWDER CO. t. MASLAND.
addition thercta, the fellowliig fcM, that Ii
to uy ; for ezunlQing And reoording tlia aur-
Jnys (KKntcd bj anj of th* depntlaa, ftt
^ Ifea nU« of twantj-flve cent* for ereiy mils
* (f tka bounduj line of'aneh lurveyj and
fer A certified eopf of may plat of a nirvay
In tk* olHee, twenty-fiTe cmta."
ma, raad la eonnectioD with the Aot of
Uareh 1, 1831, la the toundatton of thli
claim. The Act of 1831 provides that the
■urreyor general of the itate of Lcnialaiia
■hall have the aama authority, and parfonn
the Mme dutiea, aa are veated In and re-
quired of the surveyor of the landa of the
thiited Statea, aouth of the itata of T«ai-
■Kssee, or of tjie prlnelpal depn^ anrrejora
tn the aatd atate.
We are of opinion that | 1T6S of the R»-
Tieed Statutea (Camp. Stat. 1918, % S284),
above quoted, prevent a the allowance of
the claim for feca. Thia aectlon Is general
in ita application, and flzes the eompenaa-
tion of officers of the United States at the
•alary eatabllehed by law, unleaa the addi-
tional compensation is authorised and ex-
plicitly appropriated for. No such law «r
appropriation la ahown In thIa caae. The
Act of March S, 1831, made no dispoeitlon
of the feea. After May, 1007, the Depart'
ment required them to be paid into the
^^esury. The Court of Claims eorrectly
ruled thati IT06 (Comp. SUt. 19IS, iS234)
eontrolled this part of the claim of appel-
lant.
Judgment affirmed.
HM v. B. UO)
B. I. DU PONT DB NEMOURS POWDER
COMPANY and Du Pont FabrlicMd Com-
pany, Petitlooera,
WALTER B. UASI.AND et aL
iMJUKcnoR «=3a6-^aAiiiar DisoLOffunc
or Tradi Skcbbtb.
Defendant in a suit to prevent the
nae or disclosure of secret trade processes,
the Icnowledge of which was acquired by
him while in the plaintiffs' employ, may m
enjoined from diselodng any of such alleged
Sroceasea to experts or witnesses produced
uriofc the talcing of proofs,— excepting de-
fendaot's counael,— -It being understood that
if, in the opinion of the trial Judge, it should
become necesaary to reveal the secrets to oth-
ers, it will rest in his diacretian to detei^
mbie whether, to whom, and nnder what pre-
eantiona the revelationa ahoold be made.
tBd. Nstii.-ror oOer mhs,
Cmt. Die 1 UO.]
[No. 210.1
.Argued Uay 4. UlT. Decided Uay «1,
states Circuit Court of Appeala for tha
Third Circuit to review a decree which r^
Tsraed a decree of the District Court Ivt
the Eaatem District of Pennsylvania, en-
joining defendant In a ault to prevent the
nss or disclosure of trade secrets, from dls-
eloaing such secrets to operts or wibiesaes
produced during the taking of proof. Re-
versed and remanded for further proceed-
ings.
See same caae below, I40 C. C. A. £I>,
224 Fed. 880.
Hie faeti are atated in the opinion.
Messrs. Edwin J. Prlndle, Warren H.
Small, John P. Isiffey, and Kenneth 8.
NesI for petitioners.
Messrs. George Wharton Pepper, John
O. Johnson, and Frank Smith for reapond-
* Mr. Justice Holmea delivered the opinion*
of the court 1
Thia is a bill to prevent the defendani
Walter B. Masland from using or diacloaing
secret proceasea the knowledge of which was
acquired by the defendant while in the ptaln-
tllfs' employ. The defendant admits that
he Intends to manufacture artiflcial leath-
er, to which some of the plaintiffs' alleged
secret proceeaea relate, but denies that he
Intends to use any inventions, trade secrets,
or secret processes of the plaintiffs that be
may have learned in any conlldentlal rela-
tion, prefacing hia denial, however, with the
afennent that many of the things claimed
by the plaintiffs are well known to the
trade. A prelim i nary injunction was re-
fused at first. ZIS Fed. 271. But befoK.
the final hearing the defendant proposed to§
employ *one or more experts and to make*
anch disclosures to them aa the preparatimi
of the defense might require. Thereupon
the district court iaeued a preliminary In-
junction against disclosing any of the
plaintUfa' allied proceeaea to experts or
witneasea during the taking of proofs, but
excepting counsel, with leave to move to
dissolve the injunction It occasion to con-
sult experts arose. I«ter a motion to di».
aolva waa denied and the hearing was
continued for a decision by the appellate
court 222 Fed, 340. The circuit court of
appeals reversed the decree. 140 C. C. A.
229, 224 Fed. 6BS. Before any further order
wna entered the writ of certiorari was grant-
ed by thie court.
The case has been considered aa present-
ing a eouSlct between a right of proper^
and a right to make a full defense; and it
is said that if , the disclosure is forbidden to
one who denies that there is a trade secret,
the merits «f hia defense are adjudged
against him before he lias a chance to if
M toste ft KBT-NOHSHR In sH Rsr-KulDbersd Digests A Indus
-Tgle
67«
ST SUPREME COURT REPORTER.
OOT. Tom,
heftrd or to prove hU eue. Wb appnuL
the question Bomewliat differently. The
word "propertj" u applied to trademftrki
and tra.de lecreta la an unanalyzed exprea-
•ian of certain aecondarj connequeDcea of
tlie primary fact tliat the law makes aome
rudimentary requircmenta of good faith.
Whether the plaiatifTB have any valuable
•ecret or not the defendant knowa the faeta,
whatever they are, throng a special con-
fidence that he accepted. The property may
be denied, but the confidence cannot be.
Therefore the starting point for the present
matter i* not property or due procesa of
law, but that tiie defendant stood In eon-
fldentlal relationa with the plidntiffs, or
one of them. Theaa have given place to
hostility, and tiie first thing to be made
fure ol ia that the defendant ahaU not
fraudulently abuse the trust reposed in
him. It Is the usual incident of coulldenttal
relations. If there is any disadvantage in
nthe fact that he knew the plaintlffa' aecrets,
S he must take the burden with the good.
■ *The injunction asked by the plaintiffa for-
bade only the diaeloaure of proceases claimed
by them, including the disclosure to ex-
perts or witneasea produced during the tail-
ing of proofs, but excepting the defendant's
oounscl. Some broader and ambiguous
words that crept into the decree, seemingly
hj mistake, may be taken as stricken out
and left on one side. This injunction would
not prevent the defendant from directing
■juestions that should bring out whatever
public facta were nearest to the alleged ■•■
ereta. Indeed, it ia bard to see why it does
not leave the plaintiSa' rights somewhat
llluBory. No very clear ground aa yet has
been shown for going further. But the
Judge who tries the caae will know the se-
erets, and if, in his opinion and discretion.
It should be advisable and ueeeasaxy to
bkke in others, nothing will prevent his
doing so. It will be understood that It, in
the opinion of the trial judge, it la or
■hould become necessary to reveal the se-
erets to others, it will reat In the judge's
discretion to determine whether, to whom,
and under what precautious, tha revelatiou
should be made.
Decree reversed and case remanded for
further proceedings la cwiformity with this
opinion.
(SM D. S. IM)
KEVADA-CALIFORNIA-OREGOH RAIL-
WAY, PUT. in EtT,
JOSEPH BURROa.
Tha refusal of the highest ctate court
to interfere with the discretionary judgment
of the trial eourt In refusing to permit the
answer. In a suit for the breach of a car-
rier's contract to furnish a special Inter-
state train, to he amended dunn;^ the trial
so as to set up that no tariff rate for spa-
cial trains had been filed, and tha^ there-
fore, the contract was illegal, is not tha
denial sf a Federal right which the Fed-
eral Supreme Court can review on writ of
error, where ijiis was the first time that the
point bad been presented in proper form
under the state praetice, although some
months had elapsed since the beginning of
the suit, and demurrers and other defenses
decision was not rendered in a spirit of
evasion, for the purpose of defeating tha
claim of Federal right.
p>d. Nota.— Tor oUksr aatf, SM Courts Csnt.
Ors, I lOTT.]
IK ERROR to the Supreme Court of tha
State of Nevada, to review a judgment
which afllrmed, afttv reducing damages, a
judgment of the District Court of Waahoa
County, in that state, in favor of plaintiff
in an action for the alleged breach of a car-
rier's contract to furnish a special trala.
Dismiased for want of jurisdiction.
See some case below, 8S Nov. 1GB, LJLA.
— , — , 14S Pae. 92B, 8 N. a C A. 777.
The foots are stated in the opinion.
Mr. James Olynn for plaintiff in error.
Messrs. Sardia Smmuerfleld and JobB
E. Raker for defendant In error. j
*Jb. Justice Holmes delivered the opl^*
Ion of the court:
This ia an action for breach of a contract
to furnish plaintiff (defendant In error) a
special train to carry him from Reno,
Nevada, to Doyle, California, where his son
was HI, and to bring the two back from
that place. The plaintiff got a judgment,
and the only question before us is whether
any rights of the defendant under tha Act
to Emulate Commerce have been infringed.
He ground on which such an infraction la
alleged is that the trial court, after the
tiitl had been going on for more than a
day, refused to allow the answer to ba
amended so as to set up that no tariff rats
for special trains had been filed by the de-
feuduit and that therefore the contract
was Illega]. The defendant hod mentioned
the point at the beginning of the trial, but*
this was the first time that it was presentsdn
ta proper form under the state practice ol-*
though some months had elapsed elnes ths
beginning of ths mlt, and demnrrera anA
■ H* same te^ A KBT-MUHBER la oU Kar-Hl
'— ^,>»*«^M?W^IC
1918.
KOWLANS T. BOYLB.
otlin defcnKS bad bMn interpoMd vitboui
■oggeiting tbiB one- The Bupreme court of
the etate declined to overrule the dteore-
tionBTf judgment of the eonrt below. 38
Ker. ISO, L.R.A.— , — , 14B Pae. 026, S N.
C. C. A. 777.
UpoD the queation whether ■ claim of Im-
mnnitf under a statute of the United Btatea
bifl b«en aaserted in the proper manner
under the ttate eystem of pleading and prac-
tice "the decision of the atate court la bind-
ing upon thia court, when It 1b clear, as it
Is in this caae, that such decision 1b not
rendered In a spirit of araBlon, for the pur-
poaa of defeating the claim of Federal
right." Atlantic Coast Line R. Co. v. Mims,
212 U. a. SS2, D3fi, 61 L. «d. 47S, 37 Sup. Ct
Rep. IBS. The most that could be said in
this case waa that the supreme court was
tnltneiiced in Its judgment bj the fact that
the railroad, aft«r treating the plaintiff
very badly, was trying to eecape liability
by an afterthought upon a debatable point
»f law, — not at all by the fact that the law
ioTolved waa Federal. The plaintiff had
tried the case relying upon the presumption
which was EuBlciant aa the pleading stood.
Cincinnati, N. 0. ft T. P. R. Co. t. Hanlciii,
Ml U. S. 81», 80 L. ed. 102fi, L.R.A.1917A,
£Sif, 88 Sup. Ct Rep. GS5. The court rea-
■onably might declina to put him to pro-
curing other eridenea from a distance on
the last day of the trial, upon a new issue
presented after his erldenee waa in. We
perceive no reason why this eourt should
interfere with the practice of the aUta.
Writ of error dismissed.
OM TT. 8. IM)
J. SAM ROWLAND, William V. MoKnlgbt,
and Thomaa E. Wood, Railroad Commis-
sionera of the State td Arltanaaa, Appta.,
BIDNBY E. BOTLE, aa Executrix of the
Will of Wilbur F. Boyle, Deceased, and
the St. Louis A San Francisco Railroad
Company.
O&sMuui «=>12(2>— PKn^nopnoR^-STAlB
Bxoui^TiQir OF Batsb.
1. In establlBhing looal rates to be
charged by an interstate carrier, a atatc
■rasi be aBsomed to intend to confine ita
action within the limits set by the Federal
Constitution, and not to seek an unjust ad-
vantage from the dilllcnlty of dividing ex-
Cnse and income between intrastate and
terstate business.
tBd. Note.— Tor other taam. as* Oanlara
Cant. DlK. || I, U-tO.]
EviDCKCK <^=>S18{Si — In Rate Cabeb —
Hbamat Evide-^ck.
2. The flfurea tntrodncad by an Inter-
- Baib
held to have bee
where the carrier adopted the only pra»
ticable mode of presenting its reaulta, and
exhibited its work aheets and data to the
adverse parties, and where the returna ware
made by the employees In the course of
their business, and if the adverse partiea
had desired to question any of tlie data
they oould have called for further *erlflc»-
tion.
[Bd. Note.— ror other i
Ciot. Dla. I UK.)
GasBiEBe «=12(7) — Sufficienot -
Bzan^TioN.
t. Results obtained from inveBtlgatlona
of an Interstate carrier during the montha
of November and December aa a test period
afTord a basis for argument aa te eenatant
oondltlons upon the issue whether Um rates
fixed by the Arkaosaa Railroad Conuniaaka
for intrastate traffic are eonflseatory.
[Bd. Note.— For otaer eass^ as* Oanto^
Cut. Dlt. H 1E-!B.]
Appeal akd Ebsok *3l027 — Ik Bati
Cabes—Bbrois hctt OBAROiira Bisuz/r.
4. A decree enjoining the anforcemeal
of intraatate ratee flxed t>y a atate (or am
interstate carrier aa being eonflseatory will
not be disturbed on appeal because of t/tt
rors which would not change the result.
[Bd. Not*.— Vor other easas, b*« Appeal and
BrroT. Csnt. Die | 4DtI.1
Appeal and Gbbor *3l02S— In Rate Cak-
es—Pailcee TO Au^ew ni Bufpobid Ih-
CEEABE IIT Tbaw..
5, Failure to allow for the increaae of
travel that will follow the reduction la
rates doea not require the reversal of •
decree enjoining the enforcement of state
r^utation of the rates for intrastate traffla
on an intcrstata carrier as confiscatory,
where the record makes aueh supposed is-
areas* at beat a gneaa.
[Bd. Nota.— ror other caisa, aae Appeal aai
Brrer, Cent. DlK. H M^, tOSOl
[No. £G2.]
Argued February 24 and 25, 1816. R*-
stored to docket lor reargument June 1!^
1818. Reargued May 1 and i, 1817. I>»
dded May £1. 1817.
APPEAL from the District Court of th»
United Statea for the Eastern Distriet
of Arkansas, to review a decree enjoining
the enforcement of ratea fixed by the Stat*
Railway Commission for intraatate traffle
on an interstate carrier. Affirmed.
See same caae below, P.U.R-lSieA, O,
222 Fed. 639.
The faete are stated in the opini<w.
Meesra Joseph M. Hill and B. P. Fre»>
lint for appellants.
Messrs. B. T. BledMe, Jidu H. HMm^
and W. F. Svan* lor appellees.
le topic A KBT-NUKBBB la all Kar-Niimb«rad Dl>asts
*»-«WOOglC
578
87 SUFREUE COUBT REPORTER.
OOE. 1
Mr. JteUes HoImM dearand tha •pln-
la« «f tti« eonrt:
Thi« U a bill In oqal^, wigiBallr broo^t
hf Wilbiur Boris M a ■iockholdar In tlu
rallnwd company, now on* of the ({ipcIIeM,
to prerent it from pirTlng, ftnd tha Rftilroad
CommUBion of ArkftnsAs from enforcing,
freight ritca est&blUhed by the latter, and
« 2-ceiit paaaenger rata fixed by a itatuta
of 1907, on the ground that bath were eon-
flacatorf. A temponirj Injunction waa la-
atiad, freight ratea were adopted higher than
tlKwe aatabliahed bj tha Btata Commiaaion,
and tha S-oeat paaieager rate previonaly In
foT«a waa restored, a bond being given for
kaeplng acoonnta and refnnding the dilTar-
anee If the final deciaion ahould uphold the
action of the atate. I^ter by agreement the
ttperiment of a, 2i-c«at pasaenger rata waa
tried for eighteen montha, and tha final
hearing of tha eauae waa poatponed to await
the deciaion of Allen ▼. Bt. Louia, I. M. t
e. R. Co. 230 U. S. 663, 67 L. ed. 1025, 33
Bup. Ct. Rep. 1030, in which the aame ratea
wot before the court. That deciaion tr«a
rendered on Jnna 16, 1013, and forthwith
after that and tha othera reported in 230
U. 8., there waa a eonferenoe of railroad man-
agera and oCBciala, engineer! and othera com-
petent to aid, for the purpose of devising
formnlaa for the division of ezpensea, etc.,
between local and interstate business In ac-
cord with the views of this court, aa a atep
toward determining the eonatitutionality of
this and other rates sought to be imposed
bj the states. Tlit railroad company then
made a laborious attempt to apply the
formulas thus reached, and, as a result, the
injunction was made perpetual, subject to
a change of circunutancea, after » careful
discussion by the district court. P.U.R.
IBISA, 40, £22 Fed. fi39.
The value of the railroad property tor
the years ISIO-IBIS was admitUd. Tha
question in dispute ia the usual one of the
division of ezpense and income between
atate and interstate buiineas. The decision
below explains in greater detail than It is
necessary to repeat the method of investiga-
tion adopted by tha railroad. For the
months of November and December, 1913,
It caused the most minute and ■peciGc re-
ports to be made of all the facts that, by
the formulas prepared, would throw light
npon the problem to be solved. Suel
investigation is too expensive to be Icept
up for more than a limited time, but evi-
dence was offered to ehow that the figures
for the two months reflected the previoua
years as to the material proportions, ao far
M was possible to judge from tha returns
prcriously required by the state.
In establishing local ratea a atate must
be aaaumed to intend to conflna Its action
within tha llmlta aet by the Conatitntion,
and not to sedc an unjust advantage from
the dlfflculties af dividing income and ex-
pense to which wa have referred, bnt in thia
caaa tha appellants hava contented them*
aelvea with a purely negative attituda.
There la made even a preliminary objectJOB
that the evidence is hearsay. Wa hava not
observed that the objection was taken when
the evidence was introduced, and U not, it
would ba too late. Dias t. United SUtaa,
U. S. 442, 450, GS L. ed. GOO, 503, 32
Sup, Ct. Rep. 250, Ann. Caa. ISISC, 1138.
But it ia enough to say that the railroad
adapted the only practicable mode of pr^
itlng iU results^ that it exhibited iU
work sheets and data to the appellanta, that
the returns were made by the employees ia
course of their business, and that U
the appellanta bad desired to question anf
of the data they could have called for fnr-_
ther verification. It aeems to ua that tech-8
nical rules ar«*aatisfied, and that juatioa*
plainly requires thia abjection to ba aet
We hardly can avoid approaching the dia-
ouiaion of the merita In the light of a few
facta indicating that the probabilities ara
on the railroad'a side. Weight naturally
attaches to the opinion of the judge who
heard the ease. Apart from that. It ia not
to be forgotten that thia same Commission,
with others, recognising the incongruity l>».
tween tha local passenger rates and thosa
in force between diSerent states, applied to
the Interstate Commerce Commission ts
have the tatter changed; that the Commia-
sion found that the 3-cent rate was not
shovm to be unreasonable, and that it dia-
misaed their petition, reminding them that
the adjustment properly ahould come not
from the United States, but from them-
selves. Corporation Commisiion t. Atchl-
aon, T. ft S. F. R. Co. 31 Inters. Com. Bep.
G32. The average haul in Arkansas ia
shorter than the average of the road, tha
den^tr of traffic ia leas, and tha maintfr
nance of the road la more expensive. Wa
are aware that there la aome contradlcUon
upon thia last point, but we have no doubt
of the fact that the coat ia greator in A^
''a"T*s than the average coat of the line.
We do net propose to follow tha arga>
manta that have been addressed to na inta
the elaborate tablea of figurea. We ara
satisfied In the main with the discuasioa
tha they received below, and shall refer only
to one or two details that seem to need
mention, without discuaaing the merita or
demerits of the formulae. We are of opin-
ion that the railroad baa ahown suoceaa-
fully the state ratea to be eonflaeatory, and
that even It some srrora ara detected, tb^
are not anoni^ to chaaga tha remit. Wa
A^iOOglC
I91«.
CHESBEOUQH t. WOODWOETH.
»gne wltb tlie district judge that the two
montli* of inveatig&tion afforded a baaiB
for OirgiiiDeiit aa to eonatant conditions. We
■gTM that it la proved that th« local ex-
M paaaM are propurtionally very much greater
■ than the interstate. 'In flzing tlie exact
rate* it may be that mistakes were made.
Perhaps the most important doubt is raiaed
by tbe fact that the railroad apportioned
the cost of maintaining tracks and track
structures, so far as not definitely assign-
able, between freight and passenger terrlra,
on Uie basis of engine ton miles (the weight
«f the engine in working order, multiplied
^ the distance it moves In the one service
or the other). Tliis criterion, although up-
held by the court below, is not regarded at
certainly the beat by the Interstate Com-
merce Commission. Western Passenger
Fares, 3T Inters. Com. Sep. 1, 13. It gave
for the test period 61.10 per cent to freight
and 4B.31 to passenger, whereas the Cam-
mission's figures gave a larger percentage
to freight. The result of a difference of
eleven per cent would be to convert the
deficit alleged by the railroad and found
by the court below in Intrastate returns into
n profit of less than 1 per cent upon tlie
agreed valuation. But the extent of the
error, if any, is doubtful, and neither that
nor any other possible errora would turn
The railroad, after getting the actuitl re-
turns at the 3-cent and S)-cent passenger
rkte and the freight rates allowed by the
eourt, deducted the sums necessary to bring
tli« revenue down to what it would have
been had the state rates been followed. It
la objected that this doea not allow for the
increase of travel that would follow
tbe deduction. The railroad replies and the
court below found that the increase is main-
ly at the expense of Interstate revenue when
tk« combined local rates are less than the
interstate one. Whether this exhausts the
matter or not, we are of opinion that upon
this record the auppoaed Increase Is too con-
jectural properly to aSect our conclusion.
The direct dfeet of the reduction Is plain,
— the remote one is at best a guess.
Light it thrown upon the poeitlon of the
H state by the decision of the Interstata Com-
2 merce Commission In Memphis v. Chicago,
• R. I. 4 P. B. Co. 30*Intera. Com. Kep. 266,
S60: "The present unduly low rates with-
in Arkansas are due at least in part to the
attempt by the Railroad Commission of
Arkansas to protect Arkansas shippers and
fcnild up Arkansas Jobbing caiters." In
that ease it nas Intimated that the carriera
would be required to remove dlscrimina-
tioBS resulting from the unduly low rates,
as was done in the Shreveport Case. Hous-
ton E. & W. T. R. Co. T. United States, EU
V. S. 342, 68 L. ed. 1841, H Sup. Ct Hep.
8S3. Upon the whole matter we are of
opinion that the decree below waa right and
it is affirmed.
Decree affirmed.
PRANK T. WOODWOETH.
Appeal and Ehrob 4=alOOQffl)— Bxviiw or
FACTft—ConcBKBEncE oi Two Ooubt».
1. A Judgment enforcing the personal li«<
billty of directors of a national bank to k
purchaser of stock in such bank In reliance
upon false reporta of ths bank's financial
condition to the Comptroller of the Cur-
rency, attested by them, and upon the dee-
laratlon of dividends out of capital, as-
sented to bv them, will not be reversed t^
the Federal Supreme Court on the facta,
where there is substantial evidence to sap-
port the conelualon twice reached 1^ the
circuit eourt of appeals that verdicts against
the direotora haa sufficient evidence to sn»
tain them.
[Bd. Note.— For ctbar casas, ■•• Appeal and
Brror, Cent. DIk. I tSCL]
CouBis ^9394— JuuaDionoir — Fiskxax
2. A Federal question it involved, glv>
lug a Federal district court jurisdiction, un-
der U. 6. Rev. Stat. I 61B8, Comp. Stat
191fl, ( 0769, and the Act of August IS,
188B (26 8t»t at L. 436, chap. 8»). | 4,
without regard to eitltenafaip, in an aetior
to enforce uie personal liability of direetora
in a national bank, under U. S. Rev. Stat.
I 6239, Comp. SUt. ISIB, | 083], for tk*
damage* suffered by one whe has purchaaed
Ital stock in such bank in reliance upon
le reporta of the bank's flnaneial condl-
tlon to the Comptroller of the Cnrreney,
attested by them, and upon the deelaratioa
of dividends out of capital instead of oiit
of net profits, assented to by them.
rxd. Note.— rcr atber eass^ see Gonrt^ Osat.
Dig. i SH.]
Bahkb and BAirKiiro » iii2CS— Natiomal
Bahkb— LiABiUTT or Duboiobs— Faiiu
RKPOsn.
I. Directors In a national bank, who,
'ith knowledge of their falsity, attested re-
porta of the bank's financial condition, mada
to the Comptroller of the Currency, as re-
quired fay U. B. Rev. Stat, f 6211, Comp.
Stat leifl, f 0774, and as called for by him,
are made personally liable to one who ha*
sustained a loss by reason of fala parehas*
of stock In the Mnk in reliance on sn^
false reports, t^ | 6230 (Comp. Stat lOlS,
S 0831), which provides that In case the
directors knowingly violato or knowinglj
permit the violation of any of the proviaiona
of the National Bank Act, "every director
who participated in or asaented to the eama
shall be held liable in his personal and in-
dividual eapaelty for aB damages wMeh tha
association, its shareholders, oi ~ "
>glc
i^»PoT other CI
le tarn* topic ft KBT-NnUBKB In all Ker-NsmMrsd DInala ft IndK<
87 SUPREME COUBT EEPOBTBR.
Oat. Tdv,
, iM BKnlu uid
Bftaklnit. CanL
Banks add Baneino ^»253— Natiokai,
Banes— LiABiLin or Direotobs— Fai:,bb
Refobts — Damages PsBsonAi, to Ohk
SUFFEBIffQ Loss.
4. Tha d&moges rMoverable from the
directors of k national bank in a (ult
brought under U. S. Rev. Stat, g SE30,
Comp. StAt. leiS, j 9831, b; one who hu
sustained a Idbs b; reason of their hATing
knowingly participBtMl in, or aaaented to,
A violation of the National Bank Act, ara
personal to the plaintiff. He sues ' ' '
own rifiht, not for the bank.
IBl Note— For other h»i,
BaoklBK, Cent. Dig. || M4-fl4gJ
Bakk and BANKina $=3264
Bajikb~-Liabilitt of Dibectors— Faiae
BXPO BTB— NeQ LI O ENCC— KN O W LE DOE.
6. A direct showing of negligence It
not Involved in an action brought under U,
8. Rev. Stat. % 6239, Comp. SUt. 1916,
I 9S31, e^inst directors of a national bank
by one who has sulTered loss by reason of
blE purchase of stock in the bank in re-
liance on reports of the bank's Qnaaclal
wndition, made by them, with knowledge
of their falsity, to the Comptroller of the
Currency, as required by 9 G211 (Comp.
8tAt. IBia, I B774), and as called for by
him ; the sole primary issue is whether de-
fendants caused or permitted to be made a
statement of the hank's condition, upon
which statement plaintiff relied, to his in-
jury, and which statement defendants knew
was materially false,
[Ed. Nota.— For otber oshi, ■•• Buiki and
Banking, Cent. DLg, |g 9Ea-»1.]
Bansb and Banking ^=>254— Evidknck-
Relevancy—Hibiobt OF Bank's Loaks
— PESSOHAI. LIABII.ITT OF DlBECTDBB
False Refosts— Knowledoe.
0. The detailed history of the entire
transactions surrounding certain "bad"
loans made by a national bank is admissible
in evidence in an action brought under U.
S. Rev. Stat. S 6239, Comp. Stat. 1919,
f 9S31, against directors of a national bank
b^ one who has suffered loss by reason of
Ills purchase of stock in the bank in reliance
on reports of the bank's financial condition,
made by tbem, with knonledge of their
falsity, to the Comptroller of the Currency,
as tending to show whether the loans wers
In fact bad and whether the defendant!
knew that fact.
[Bd. Note,— ror otlier esses, ■■• Banks and
Banking, Cent Dig, II MO-WT.]
Banks and Banking ^=s254— Pasties —
Defendants— Join D KB— ENfOHCiNQ Peb-
SONAL Liability or Bane Dirsctob.
T. One director In a national bank may
b« made the sole defendant, or others may
be joined with him, in an action broui;ht
under U. 6. Rev, Stat, j 6230, Comp. Stat.
191Q, S 9831, which provides that, in case
the direct or a knowingly violate or know-
ingly permit a violation of the National
Bank Act, "every director who participated
in or assented to the same shall be held
liable in hia personal and individual eapa-
lAtj for all damagea which the aaooctation,
its shareholders, or any other person, shall
have snatained in consequence of sneli t1o1»
tion."
[Ed. Note. — For atbsr cases, ase Banks and
BanUniL OMit. Dig. If HO-KT.]
[No. 179.]
Argued April 19 and 20, ISIT. Decided
Uay 21, 1917.
IN ERROR to ths United States arcolt
Court of Appeals for the Sixth Circuit
to review a judgment which, on a second
writ of error, affirmed, after a remission of
a portion of the damages, a judgment of tb*
District Court for the Eastern District of
Michigan, holding certain directors in a
national bank liable in dsunages to one who
had purchased stock in the bank in relianco
upon false reports of the bank's financial
condition, attested by such directora. Af-
See same ease bslow on first writ of er-
ror, lie C. C. A. 466, 166 Fed, S7fi; «■
second writ of arTor, 137 C. C. A. 482, 221
Fed. 912,
The facts are stated in the opinion.
Mr, Thomma A, K. Weadock for pUi^
tiff in error.
UesBTs. EUwapd S. Clark and John 0>
Weadock for defendant in error.
*Mr. Justice McKeniut delivered the opln-*
ion of the court:
Action in ten counts charging plaintiff in
error and one Joseph W. McQraw with vio-
lating the National Bank Act, and alleging
damages resulting to defendant in error
therefrom.
In description of the parties we shall des-
ignate them respectively as pl^ntiff and d^
fen dan te.
In all the counts defendant Chesbron^
and McGraw are Alleged to have been at cer-
tain dates directors of the Old Second N*-
tional Bank, a national banking corporatioB
organised and doing business under the Nbi-
tlonal Bank Act of 1864 [13 Stat, at L. 98,
chap. 106, Comp. Stat. 191S, 3 495], and ths
amendments thereto, and having its offlce in
the city of Bay City, Michigan.
The following violations of the act aim
charged: (1) Signing, attesting, and per-
mitting and assenting to the publication of,
a report of the conditions of the bank re-
quired to be made by U. S. Rev. Stat, f
, Comp. Stat. 1916, § 97T4, of such act,
which report was false. (2, 3, 4, 6.) Thtt
Comptroller of the Currency having made a
requisition upon the bank for a report of th*
ircas and liabilities of the bank upon ft
day specitied, as required by the act, the do-
feodants permitted sod aaaented to a vioU-
>For oUier cj
H we sun* tODic 4 KEY-NUUBEB Id sU Ker-NUDbSred DIgWia .
^.Wngic
CHBBBBOuaH r. WOODWOBTH.
esi
OOB of the ftct bj ligning, lUesting;, &nd
2 pennitting and assentiQg to the pQbHcatton
• af, K f»lM*rGport of the resources siid lia-
billtiaa of the bank tnd Its eooditlon et the
close of business of such d»,j. (0, T, B.)
Violktlon of the act in that defendants and
eaoh of than permitted and assented to the
declaration of the gemiatinUEd dividend, be-
ing payable DecEmlwr 1, 190Z, knowing that
it would neeesBsrilj' be paid out of the capi-
tal stock of the Iwjilc, and not oot of net
pniflts, and knowing that ioeses had there-
tofore been sustained equal to or exceed-
ing the nndivided profits then on hand, and
tiiat the sums so declared as divldeuds ex-
eeeded the profits then on head, aft«r de-
ducting therefrom losses and bad debts.
(S) Defendants knowingly Tlolated and per-
mitted and assented to the violation of the
act (U. S. Bev. Stat, f E200, Comp. Stat.
1916, I 9Tei) in that they knowingl]' par-
ticipated in, permitted, ssd assented to the
ereatioD of, certain liabilities to the bank,
and knowingly permitted and assented to
the continuance of the liabilities and the
carrying* of the same among the loans and
discounts of the bonk after defendants and
each of them bad knowledge of the nature
and character of the liabilities, and that
tbey had been created and were being car-
ried in violation of the act. The liabilities
are set out. (10) Violations of the act
(U. 8. Rev. Stat. §S B199, 6200, E204, E211,
C23S, Ck>mp. SUt. 1910, S9 9760, 9761, 97S6,
S774, aaSI), being portions of a general de-
sign and conspiracy on the part of the de-
fendants to deceive the public, including
plaintiff, tor the purpose of giving the stock
of the bank a fictitious market value and
snafallug each of the defendants and bis rel-
atives and friends to dispose of certain
shares of the stock then and there held by
them at a price exceeding the value of the
■tock.
In each count damage is alleged to have
been caused to plaintiff, he having pur-
ehaeed stock upon the faith of the action of
defendants. The total amount of damage Is
aUeged to be 935.000.
Plaintiff in error Chesbrough (the esse is
here on his writ of error, McGraw not hav-
ing joined ) filed a demurrer to the declara-
gtion, which was overruled. He then filed
* aeveral pleas, one of which alleged that he
was not guilty of the wrongs and injuries
eomplained of, and gave notice that under
the latter he would "insist [upon] and give
in evidence" certain matter* of defense.
The case was tried to a jury. The 3d,
6th, 7th, 8th, Oth, and part of the lOtli
eounls were withdrawn from their conald-
eration, A verdict vaa returned for plain-
tiff in the sum of $22,002.98, upon which
Judgment was entered. It was affirmed bj
the court of appeals. 137 C. C. A. 482, 221
Fed. 912.
This case had onee before been to the elr-
cuit court of appeals, where its facts were
reviewed, and we maj refer to the report
of the ease for them. IIS C. C. A. 465,
1S5 Fed. 875.
It there appeua that in October, 1902,
Qie bank reported a capital of (200,000, a
surplus of (75,000, and undivided profits of
927,000. Its total loans and discounts were
about $100,000.
On October 8, 1902, the bank held a*
loans (so considered by the court and tlie
Comptraller of the Currency) the paper of
the Maltby Lumber Company to the amount
of $402,000, which had accumulated under
the person^ direction of the then president
and practical manager of the bank. The
Comptroller required that the loan be r«>
duced to the permitted 10 per cent. The
Comptroller's letter was presented to the
board. Inquiry during the next few weelu
developed the general character of the Halt-
by paper and that moat of it was not drawn
against any real debt, and in fact repre-
sented no liability, except Urs. Haltby'a.
Its net worth, shown by a statement of
Maltby, who was called before the board,
was about $188,000, but there were many
suspicious circumstances about the inven*
tory, and it did not appear how much of
this primary liability to the bank was in-
eluded among tlie debts. Here was subse-
quently liquidation of the Maltby Com-
pany's affairs, and as it proceeded the IwnlE
charged off successive amounts of the Malt-
I^ paper. In this way the total loss
charged off prior to the trial of the causeg
(first trial) was $223,000.* A compara-*
tively small amount remained uncollected
and not charged off. A generally similar
situation existed as to another line of pa^
per, of one Brotherton, upon which $47,000
had tieen written off as worthless before
April, 1909. The shares of stock were $100
par value, and the writing off of these two
items caused a loss in book valus of $135
per share.
The defendant* had been two of the direiy
tors for many years, during which time re-
ports to the Comptroller were frequently
made and published, as required by the stat-
ute, and OS called for by him, and continu-
ously until 1904 the entire Maltby line was
carried at its face in the "loans and dis-
counts," and was reported as part of the
bank's assets. PtaintiO', at various dates
from March to December, 1903, bought the
bonk stock at its supposed market value,
averaging about $161 per share, and abro-
gating $15,000 par and $23,400 purchase
"iS case went to trial to a jury. Certain
D,at,z.d-,.'^-.00'^IC
ST SUPREME COURT REPORTIilR.
Ooi. 1
eouflta were withdiawn, ftnd npon thoae lub-
nitted a Terdict waa retumed and jadg-
Bient entered upon it for the amounta plaiD-
Ufl had paid for hla stock, Ibm iti thee book
value, after deducting itt pro rata eMre of
the actoa] loss written off on account
Uie Maltbj and Brotherton paper, with
tveit, — an average total of SI6T pet share.
Tha following were the rulings of the
(1) The general demurrer wa« rightlf
orerralcd. The making and publishing of
the report* are not nierelj for the informa'
tion of the Comptroller, but are to guide the
publie, and he who iniys stock in a bank in
nliauee upon the report* ha* a right of
ftcttoD under S 623B, Rev. Stat. (Comp.
6tat 191Q, i 9S3I), against an; officer or
director who, knowing it* falsity, author-
ice* such report. "The one suffering such
damage* is nithiu the statutory descrip-
tion 'any other person.' " The conclusion
wa* deduced from ¥at«* v. Jones Nat.
Bank, 20S U. S. 168, 51 L. *d. 1002, 27 Sup.
Ct. Sep. OSS, and Yates v. Utica Bank, 20e
U. S. IGl, 61 L. ed. 1015, 27 Sup. Ct Rep.
046, and other case* In the state and Fed-
»;wal courts.
• *(2) The damage* In such a ease are per-
■onal to the plaintiff. Ha aue* In Ua own
right, not for the association.
(3) Such action involve* no direct show-
lug of negligence i the sole primary lasue is
whether defendant* eauaed or perniitted to
be mad* a atatement of the bank's con-
dition npon which itatement plaintiff re-
lied to hi* injur?, and which statement de-
fendant* knew waa materially false. And
In the trial of thia la*ue the detailed his-
tory of the entire transaction la admissible
M tending to *haw whether the loans were
In fact bad, and whether defendant* knew
that fact This adenter la the material
condition, and plaintiff can aelect one of the
directors a* sole defendant, or join otlien
with him.
(4) Considering the evidence, the court
aonduded that it Jugti&ed a finding of lia-
bility against the defendant*, but not to the
•xt«nt of the judgment. The court wa* of
opinion that the basil of losa to the bank,
that is, the amount which ahould have been
charged off, was taken in the verdict and
judgment at the sum of $223,000, and should
not have been greater than 1136,000, ex-
cluding entirely, as not sustained by the
evidence, the Brotherton debts. The court,
therefore, revEreed the judgment and re-
manded the case for a new trial.
Plaintiff moved to modify the opinion
and judgment in luch manner as to permit
him to remit such part of it as the court
thought wa* not supported by tha evidence.
and that, as modified, the judgment be •!•
Armed. The motion wa* denied.
The second trial resulted again, a* we
have said, in a verdict and judgment for
plaintiff. In reaching them a basis beyond
$135,000 waa taken, and the circuit court
of appeals held this was error, but gave to
plaintiff permission to file within thir^
day* from the filing of the opinion in tha
trial eourt a written election to reduce
the judgment by the *um in which it ex-
ceeded the $139,000 baai*.
This was done, and judgment entered bo>
Dordingly. J°
'The case on the facts involves two simpis*
proposition*, — the scienter of defendant
when he attceted the report to tha Comp-
troller and tbe circumstance* under which
two dividends were declared. Upon these
propositions twice have jurie* held against
defendant and twice ha* tbe circuit court
of appeal* held that there wa* sufficient
evidence to sustain their verdicts, modify-
ing only as to certain item* of damage*.
In consideration of our reviewing power,
and without reciting tbe testimony, it i*
enough to lay that the findings on these
propositions have Bubstantial evidence to
support them.
But it i* urged that the plaintiff brought
this action under j 5239, Rev. Stat. (Comp.
Stat. 1916, I 0831), in ths circuit court of
the United SUte* for the eaatem district
of Michigan, in which all of the parties
resided, and that not that court, but tha
state court, had jurisdiction.
The cited section provides for k forfd-
ture of the franchise of a national bank
if it* directors knowingly violate or know-
ingly permit the violation of any of tha
provision* of tha National Bank Act, and
further provides that in eaas of auch vio-
lation "every director who participated in
or asacnted to the same shall be held liabl*
in hi* peraonal and Individual eapaci^ for
all damage* which the aaaociatian, it* shar*-
holders, or any other person, *hall have sua-
tained In consequence of *uch violation."
Thi* aection was considered in Tates t.
Jones Kat Bank, S06 U. S. 168, ITB, 61
L. ed. 1002, 1014, £7 Sup. Ct Bep. S38,
and it was held that tbe rule expressed by
it Is exclusive and preclude* a common-law
liability for fraud and deceit To the sanm
effect are Thoma* v. Taylor, 224 U. S.
73, AS L. ed. 673, 32 Sup. Ot Bep. 403, and
Jones Nat Bank v. Yates, 240 U. B. S41,
60 li. ed. 788, 36 Sup. Ct Rep. 429. Nece*.
ily a Federal question is involved and
there wa* jurisdiction in the eourt* below.
S E198, Rev. SUt (Comp. SUt 1B16, |
0759) ; I 4 of the Act of August U, 1888,
Stat at L. 436, diap. 866. Harmuuin v.
Edward^ 238 U. S. 107, 6S L. ad. iSU, U
D,at,z.,i-.,'^-.00'^IC
WOODWORTH r. CEESBBOUaa
Bnp. Ct. Kep. 830, Ib not oppoaed to thli
T{«ir. It wu therB held only that tha Fod-
{{•rml eaUM of kctlou ihould be, in the ab-
■ Mnce of diverM'eitiuiuliip, stated in tbs
bill to give the Federal oovrt juritdlctlon,
— a condition that Is complied with by the
declaration in the present caoe.
Defendant attempte to diitingniili the
prsaent easa from the cases cited aboTe,
aad. In 77 anigDments of eiroT, concen-
trated into 18 points, urges the contentions
we have noted, and contentions based on
the rulings of the trial court in the ad-
tnission and rejection of eTidenca and
ehargea to the jury and the rulings of tlie
oircuit court of appeals, and attempts to
support them hy an elaborate and minute
aq^msnt. Indeed, ths whole ease is re-
Tiewed and alt of the deductions made by
the lower tribunals from the evidence com-
bated and the contentions reviewed which
were disposed of bj the drenit court of
appeals, in whose decision we concur. To
answer it in detail would extend this opin-
ion to repellent length. It is enough to say
of them that they show no reversible error.
Judgment affirmed.
FRANK P. CHESBROUGII.
Appeal JlHD Bjuo» *=>14(4) — Right to
H&IMTAIH Obobs Wbit— How Waived ob
Lost -~ BEKiBaicm or E^ccssivk Dam-
A party who escaped the reversal of
a judgment in his favor and the remanding
of the cause (or a new trial by availing him-
self of the permlaeion granted by a FedHml
eirenit court of appeals to die a remission
from the judgment below of the amount by
which that court thought the judgment ax-
oesaive may not matnttiin a cross writ of
error from the Federal Supreme Court, Dot-
withstanding a clause in the remittitur
that it was intended to be without prejudice
to him in the prosecution by him of a cross
writ of error or proceedings in the Supreme
Court if ths defeated party should proceed
in that court to review the judgment.
— P*^ if°'f-~?°' .°i^i^ CBM*. aaa AppMl and
Brror. Cut. Dll- I ET.]
[No. IS0.1
CROSS WRIT ot Error to the United
States Circuit Court of Appeals for the
Sixth Circuit to review a judgment which,
on a second writ of error, affirmed, after
remission of part of the damages, a judg-
Bient of the District Court for the Eastern
Diateiet of Michigan, holding national bank
diraetora liable In damagea to one who pur-
chased stoek in the bank In reliance on
falsa reporta of the bank's financial condi-
tion, attested by the directors. Dismissed.
See same case below on first writ of er-
ror, lie C. C. A. 406, IBS Fed. 876; on
second writ of error, 187 0. C. A. 482, 221
Fed. 912.
The facta are stated In the opinion.
Messrs. Bdwai^ S. Clark, Jolin C We*-
dock, and H. U. Oillett for plaintiff in n-
' Mr. Justice McKenna delivered the opin-*
Ion of the court:
This is a cross wilt of error taken by
Frank T. Woodworth, defendant in error in
No. 179 [244 U. S. 72, ei I* ed. — .,87 Sop.
Ct, Rep. S79], and is presented on the rec-
ord in that case.
As stated in the opinion In No. 17ft, tha
circuit court of appeals reversed tha judg-
ment obtained by Woodworth against Che«-
brough on tlie ground that certain amounts
computed In the judgment were not sus-
tained by the evidence, and therefor*
remanded the case for a new trial. There-
upon Woodworth moved to modify tha opin-
ion and judgment in such manner as to
penult him to remit such part of it as tha
court thought was not supported by tha
evidence, and that the judgment, as modi*
fled, be sfllrmed. The motion was denied.
A new trial was had, again resulting In a
verdict and judgment for Woodworth. Tha
court of appeals again decided that it was
excessive, but gave Woodworth permission
to file a remission of the excess. This he
did.
The remittitur recited that pUIntifl »-
mils from the judgment tha anm of t7,>
708,56, leaving the amount of the judg-
ment to be tlB,005.44. It was stated that
it was done in compliance wiUi the opinion
of the circuit court of appeals "for the sole
purpose of obtaining an entry of final judg-
ment herein, and of securing the affirmanca
of that part of the judgment which Is not eo
remitted, and Is intended to be without^
prejudice to plaintiff in any cross •proceed-*
Ing hereafter prosecuted hy him before tha
Supreme Court of the United SUtes, which
cross proceeding follows and continues to
be la connection with any proceeding prose-
onted in that court by defendant for the
purpose of reviewing said Judgmoit of tha
circuit court of appeals."
The court of appeals then rendered the
following judgment:
"This cause came on to be heard on tha
transcript of the record from ths district
court of tha United States for the eastern
e^sFor other caaea tee ume topic A KST-NUllBER Id all Ksr-Numbsred DIsaata ft lodeisa
87 SUPREME COUET REPOBTEE.
district of Michigan, northern division, knd
was argued bj counsel.
"The court hOiTing filed Its opinion, and
defendant in error, Woodwortb, hftving
thereupon filed in this coiirt a certified cop;
of a remittitur filed bj him in the court
below, whereby it appears that the judg-
ment complained of herein has been reduced
bj the sum of seven thousand seven hundred
eight dollars and flftj-six ceata (97,T0S.5S)
so that it now stands in the court below as
a judgment for sixteen thousand five dollars
and fortf-four cents ($16,005.44) and costs,
entered as of November 22, ]S13, and bear-
ing interest from the date at S per cent.
"It is now here ordered and adjudged b;
this court that the judgment of the eaid die-
trlct court In this cause, as so reduced, and
as so standing after euch reduction, be, and
the lame is hereby, affirmed; but that plain-
tiff in error, Chesbrough, recover the costs
of this court.
The remittitur so filed having contained
the clause stating that it was intended to
be without prejudice to plaintiff below
^Woodworth) in the prosecution hf him of
« cross writ of error or proceeding in the
Supreme Court if defendant below should
proceed in that court to review this judg-
ment, and this court being unwilling to em-
borrass the party, Woodwortb, in his at-
tempt to preserve any right of review
which he may be so contingently entitled,
S approval of such remittitur, as a suffleient
• eomplionce with the opinion on file, is not
withheld because of ths presence therein of
■noh attempted reservaUon; but such ap-
proval Is not to be talcen to imply that such
right of review can thereafter exist, or that
such attempted reservation hoe any effect to
make the remittitur other than absoluta and
unconditional."
In assertion of the right attempted to be
reserved Woodworth proeecutea this writ of
A motion Is made to dismiss the writ of
error, and we think it should be granted.
Woodworth ts in the somewhat anomalous
position of having secured a judgment
ogainet Chesbrough, and yet sedcing to re-
tract the condition upon which it was ob-
tained. This he cannot do. Koenigsberger
T. Richmond Silver Min. Go. 158 U. 8. 41,
Si, 39 L. ed. 8B9, 893, IS 6up. Ct, Rep.
761. He encounters, besides, another ob-
stacle: If the remittitur be disregarded,
tJie judgment entered upon It must be dis-
ngarded and t^e ordinal judgment of the
Circuit Court of Appeals restored; which,
not being final, cannot be reviewed.
Dismissed.
Oct. Tmc
ttuv.B.m
UNITED STATES and Intsstote Com-
merce Commission, Appts.,
OoioiKBoz ^992 — Judicial Review or
Aonoit — BiTJoiitiira Obdbk Pixnrci
HrtBino.
The jurisdiction of Uie Federal dia-
triet courts, under the Acts of June 18.
1910 (36 Stat, at L. 639, chap. 309), | 1,
and October 22, 1918 {38 Stat, at L, 208,
21&, chap. 32, Gomp. StaL 1916, f J 902, 903),
of "cases broueht to enjoin, set aside, au-
Dul, or snspend in whole or in part any
order of the Interetate Conunvce Commie-
1," does not extend to a suit to set aside
order of euch Commission, fixing a fu-
e day and place for the hearing of certain
complaints made to it by certain coal com-
— es seeking damages for the alleged
ire of certain interstate carriers to
furnish coal cars on demand, and to enjoin
proceedinge upon such complaints. The ao-
tion of tiie Commisdcm was not on "order*
within the meaning of the statutes, bnt was
a mere incident in the proceeding.
rEd. Not*. — for other oas*^ ~
■ut. DiB. I Iti.]
[No. 810.]
Argued April 13 and IS, 1917.
May 21, 1917.
of Illinois to review a decree which Mt
aside an order of the Interstate Commra-G*
Commission, fixing a hearing of certain
complaints made to it by shippers, sjid
enjoined proceedings opcm aoch complainta.
Reversed and remanded, with direction t«
dismiss the petition.
The facts are stated In the opinion.
Assistant Attorney General Underwood
and Mr. Blackburn Esterlina for tlia Unit«d
States.
Mr. Josepli W. Polk tor tha Int«rstat«
Commerce Commission,
Messrs. Robert T. Flet<dier and Blewvtt
Les for appellee.
8
*Mr. Justice McKcouM delivered the opi»*
ion of ths court:
Appeal from a decree canceling an order
of the Interstate Commerce Commission fl^
Ing a hearing of certain complaints mad*
to it by certain coal companies for dson-
ages for alleged failure to furnish can up-
on demand, and enjoining proceedings npon
the complaints.
The decree woe granted, three judges dt-
ting, upon the petition of appellee, herda
referred to as the railroad company.
The railroad company Is an intraatat*
and interstate carri^ of freight axd ]
<ssP0T otber eans ••• saios tople * KBT-NUlIBEIt Id all Kir-Nambarsd DIceats M ladai^ I '^^
Ul«.
UIOTED 8TATB8 T. HXINOIB CENTRAL R. 00.
5S»
•angen, uid, unong other commodltiea, '
IruiBporta coal ou ita line, which, during
tha j«i.n 1911, 1912, and 1S13, wm shipped
In iiit«r*tat« commerce bj producer* there-
of on through raiet eatabliehed b; the rail-
road company.
Certain coal companies, shippers orer the
lines of the railroad compaajr, flled pe-
tition! before the loteratate Commerce Com-
BiBsion, aelcing that damages be assesBed
against the raiiroad company for an alleged
failure to suppl; a suffleient number of coal
ears lor their reapectire shipping needs.
S The petitions were received by the Com-
• Bisiion and'irere by it treated as subatau-
tially preaentfng but • single complaint,
were so numbered aa to indicate the tact,
and were thereafter in all proceedings treat-
ed and disposed of together by one report
and order.
The leilroad company filed an answer to
each complaint In which It denied tlie juris-
dlotlon of the CommiBsion to award dam-
ages for failure to famish coal ears, and
averred that, in actions of such character,
axclusive Jurisdiction la in tiie courts. In
due course a hearing was had by the Com-
mission, and the railroad company objected
to any further proceeding befors it on the
ground of want of jurisdiction, at least aa
to ao much of the complaints of the coal
eompanles as dealt only with damages, and
moved that so much of the complaints as
dealt with the demand for damages be dis-
At the argument of the motion counsel
for the coal companies expressly declared
that BO much of the complaints as charged
any undue and unlawful discrimination by
the railroad company in the distribution of
Its cars was diamissed, and it waa stipu-
lated that the complaints should be consid-
ered as so amended as to omit such charges.
hereafter the matter proceeded upon the
sole issue of damages for alleged failure to
furnish cars upon demand.
On January 30, IBIE, four members of
the Commission filed a report holding that
tLe Commission had jurisdiction to consider
the complaints and award whatever dam-
ages might be proved. Three members dis-
■ented. The reports are attached to the pe-
tition.
A petition for rehearing was made and
denied, and on August 18, 1916, the Com-
nission entered its order assigning the
cause for further hearing upon the issue of
reparation. The following is the order en-
tered:
"No. «128— Vulcan Coal ft Mining Com-
pany V. Illinois Central Railroad Company.
S No. 612S, Sub-No. 1— St. Louie- Coulterville
* Coal Company v. Ill inola 'Central Railroad
Company. No. 912B, Sub-No. 2 — Qroem
Coal Company ▼. Illtuois Central RaHroaJ
Company.
"The above-entitled cases are asBlgoed for
hearing October 1, 1915, 10 o'clock A. K*
at Hotel Jefferson, Bt Louis, Uo, befon
Examiner Wilson.
"By the Comimsslon."
In the appellee'! petition In the district
court it alleged that the hearing would b*
proceeded with unless restrained, that Him
railroad company would be compelled to at-
tend such hearing; would be put to great
expense, and that in all probability on or-
der of reparation would be made; that tht
railroad company would be forced to defend
at great trouble and expense three separat*
and several suits at law, based ou auch
awards, all which would depend upon tha
same facta and principles of law, thereby
subjecting the railroad company to a mul-
tiplicity of suits; and that if reparatim
should be awarded, it would b« placed at
great disadvantage in defending suits haaed
on the awards, aince the Commission's find-
ing of the ultimate facts is by statute mada
prima facte correct, and no opportunity is
given for a judicial review of the strength
and competency of the evidence upon which
such a findlHg rests.
A subpiEna against the United States waa
prayed, and an order annulling the order
of the Commission, and, pending the hear-
ing, restraint of the Commiseioo and ita
members from action.
The United States, appearing by Ita coun-
Eel, moved to dismiss the petition on tha
grounds that — (1) The action of the Com*
mission did not constitute an order within
the meaning of J 1 of the act entitled "An
Act to Create A Commerce Court," and
that the court, therefore, was without juris-
diction to enjoin or annul or suspend tha
same in whole or in parL (2) Tha petition
is an attempt in advance of any action or
order of the Commission to enjoin it from
actbg and proceeding on a complaints
brought and pending before It. (3) The*
Act to Regulate Commerce makes an order
for the payment of money only prima facia
evidence, cuts off no other defense, takes
no question from court or jury, nor in any
wise denies due process of law; that "such
an order is merely a rule of evidence, and
notice of a hearing at which such an order
may he entered is not an order within tha
meaning of J 1 of the act entitled 'An Act
to Create a Commerce Court,' etc., ap-
proved June 18, 1010 I3S Stat, at L. 539,
chap. 309], and the court has no Jurisdic-
tion to enjoin, set aside, annul, or suspend
the same in whole or in part,"
The motion to dismiss was denied and tha
United States, without waiving It, moved t*
dismiss the petition on the ground that Ik
,A_^OOglC
e8«
S7 SUPHEUE COUBT REPORTER.
Oot. Tebi^
WM without «C[Uit7 uid did not ttaU ft
«Miw «f action.
It wu decreed thtit the Commiuion had
BO JurUdiction to bear and determine the
Bomplalnta of the coat companies, that its
order be canceled, and It he permanently en-
joined from further proceeding with the
kearing of the complajnta.
The Interstate Commerce Commiedon ap-
p«ared In the suit and also moved to db-
miu the petition on the gTouuds — (1) That
the order of the CommiBsion vas merelj a
notice of a bearing, and not a reviewable
order, (i) That the principal office of the
Commissi on i
the cited provision. Procter & 0. Co.
T. United States, 225 U. 8. 282, 2S3, H
L. ed. lOei, 1096, 32 Sup. Ct. Bep. TBI, U
adduced as authority for the InsiBteiice.
The Procter & Gamble Companj was tba
owner of SOO railroad tank cars used for
the transportation of ita products over the
lines of certain railroads, and the company
filed a complaint before the Interstate Com-
merce Conunisslon, complaining of demur-
rage mlea of the railroad companies, which
had been approved bj the Commisaion, s«
unjuBt and oppressive, and alleging that to
enforce them would create preferences andci
Washington, and suit to 'discriminations forbidden by the Interstata*
BJ17 of Its proceedings must be
brought in the District of Columbia, and
not in the eastern district of Illinoii, (4)
That irreparable injury was not shown.
After certain admiasions and denials of
the petition, the Commission asserted its ju-
risdiction.
In support of the decree the contention
of the railroad company is that the In-
terstate Commerce Commission has no ju-
risdiction to award damages for failure to
furnish cars, and that this was the only
g issue submitted to the CoromissioD and the
■ only issue decided by It. The* Commission
having no jurisdiction, the further conten-
tion is that the railroad company can re-
strain its order because It will subject the
company to the trouble and expense of the
hearing, the probsbillty of an order of rep-
aration against It, and a multiplicity of
suits, in which suits It will be confronted
by the order of reparation as evidence, with-
out opportunity for judicial review of the
strength and competency of the evidence.
The contentions and the recited conse-
qnenees of the order of the Commission are
met by opposing ones. The United States
asserts that the action of the Commission
fixing a day for the hearing of the com-
plaints of the coal companies is not an or-
der within the meaning of g 1 of the Act of
June 18, 1910, creating the eommerce court
(36 Stat, at L. 639, chap. 309), and the
subsequent Act of October 22, 1613, abolish-
ing that court and transferring the juris-
diction conferred upon it to the several dis-
trict courts of the United States (38 Stat.
s« L. 208, 219, chap. 32, Comp. Stat. 1916,
U 962, 90S). It la only by virtne of those
acta, It is said, that the United States
sued, and it is provided by them that the
foitsd States can only be sued in "eases
hronght to enjoin, set asidi
psad in whole or in part any order of the
Interstate Commerce CommlsHion." The
Oommission makes the same contmtlon and
•otne others, and both it and the United
States insist that the action of tlie Commis-
^aa w»s not an order within the meaning
Commerce Act. The complaint it
tained and an award of relief was aenieo.
Thereupon the Procter & Gamble Com-
pany filed a petition In the commerce court
in which the company repeated its accusa-
tions against the demurrage rules and
charged also that the order of the Conunis-
dismissing Its complaint, was null
and void snd beyond the power of the Com-
mission, In that it sustained tbs validi'^ of
the rules.
The commerce court held that it had jn-
risdlction of the cause, and that, for tha
purpose of jurisdiction, the refusal of tho
Commission to afford the relief prayed for
wss the exact equivalent of an order grant-
ing affirmative relief, and, aa a corollary of
this power, it was further decided that
there was Jurisdiction to award pecuniary
relief for demurrage if any was illegally
esacted. On the merits the court decided
against the Procter ft Gamble Company.
This court reversed the ruling and held
that the commerce court had no jurisdio-
tiou, OS the order of the Conunisslon neither
compelled "the doing or abstaining froa
doing of acts embraced by a previous afDrm-
atlve command of the Commission." Tb%
reasoning of the court explored the whoU
act and omitted no circumstance whidi
could bear on its construction and its efB-
cacy for the purpose for which it was en-
acted. Considering the first and second
subdivisions of 1 207 [36 Stat, at L. 1118,
chap. 231, Comp. Stat. ISIS, f 993], wMek
deals with the jurisdiction of the commerco
court, it was said that the firet "provide*
for the enforcement of orders; that is, tho
compelling of the doing or abstaining from
doing of acta embraced by a previous affirm-
ative command of the Commission;" and
that the second, "dealing with the same sub-
ject from a reverse poiut of view, provides
for the contingency of a complaint made to
the court by one seeking to prevent the en-
forcement of orders of the Commission snohft
as are contemplated by the first* paragrapli.*
In other words, by the 00-operatItm of tba
two paragraphs, uitliori^ is gino. om
vA_,OOglC
IfllQ.
WEST T. EDWARD BUTLEDOB TIMBEB CO.
687
thtt on* hand, to enforce compliance wltli tlw
order* of the CommiHion, U lawfnl, and,
on the other hand, power ia conferred to
ntaj the enforcement of an illegal order."
Other proviaioni ot the act were uid to be
■a convincing.
It will thuB be obserred, as iaid hj eotin-
■el for the CommiBaion: 'The power of a
court to Bta.j the enforcement of an Illegal
OTder* la, in a aeDse, reciprocal to Ita power
to enforce compliance with an order of the
Commisaion, 'If lawful.' . , . And just
aa the district court wonid have been power-
less, in the instant case, to compel the ap-
pellee to attend the hearing with reepect to
which the notice bad been given, so also
was it without lawful authority to annul
that notice or to enjoin the Commission
from proceeding In the premioea." And
again, as other counsel aaj, the alleged or-
der was nothing mors than notice of a hear-
ing which the railroad company might at-
tend or not, as it saw fit.
The notice, therefore, had no eharacteris-
tio of an order, afBrmative or negative. It
was a mere incident in the proceeding, the
accident of the occasion, — in effect, and, it
may be contended, in form, Irat a continu-
ance of the hearing. The fact that the
continuance was to another day and place
did not change its substance or give it tha
character described in Procter k 0. Co, v.
United States, — one which constrained fhe
railroad eompanj> to obedience unlesa it was
annulled or suspended by judicial decree.
It is not necessary to pssa upon the other
wmtentions of appellants.
Decree reversed and cause remanded, with
directions to grant the motions to dismin
tha petiUon.
dU D. a. M)
ANDREW WEST, Appl,
KDWAKD BUTLEDOB TIMBEB COM-
PANY and Northern Paeiflo Baiiway
C<Hnpany.
PuBUO LaitDa ^=81(1}— Baiuoad LaND
Okantb— 8eu:ction in Liev or Lauda
BXUHQDIBSKD TO UNITED STATES —
MotJiTT B.AniEB National Park.
1. The Northern Pacific Ballwaj Com-
pany, the BuccesBor tiirou^h foreclosure to
the Northern Pacific Bailioad Company,
eonld avail itself of the right BUbsequently
granted by the Act of March 2, ISSQ (30
Stat, at X. ms. chap. 37T, Comp. Stat
1B16, I 6223), to tbe oriEinat company to
sele^ certain public lands in lieu of an
•qttal quantity within the Hount Ranler
National Parle, to be relinquished to the
United States.
[M. Nota.-^^ otter csaeai see Fubllo Lands,
Cent. Dt«^ 1 tu.]
Ptmuc Lands 4=>82 — Railboas Laud
Okaht -~ Selection in Liku or Lands
BXUNQITISBED TO UNITED STATES —
CliABSmCATION AS NONlflNEBAL.
2. The report of the deputy surveyor
who made the survey that the lands, if
cleared, would be suitable for gracing, but,
at the time of the report, were more valu-
able for their timber, is, when accepted by
the Land Department as a description of
the lands as nonmineral, a "classification"
of such lands as nonmineral, within the
meaning of the Act of March 2, 1899 (30
Stat, at L. 9S3, ehap. 377, Ckimp. Stat.
lieu of lands to Iw relinquished to the Unit-
ed States pursuant to that act "an equal
quantity of nonmineral public lands so
elasBifieil as nonmineral at the time of
actual government earvey."
[Rd. Nots.— For otber catM, tee Public Laads,
Cuit Dl|. II us, »-ffa.i
PuBUG Lands «=>S2 — Bahjioas IjAHD
GOANT— Sblxction in Liec or LANtie
BxuNQirtsHKD to THE United States —
OEnAimr of DmoNATioir.
3. The designation by section number,
township, and range of a quarter section
of unsurveyed public land ealected by k
railroad company pursuant to the Act of
March 2, 1S9& {30 Stat, at L. 993, chap.
377, Comp. SUt. 1010, g 6223), in lien of
an equal ouanttty within tbe Mount Banier
National Farlc, to be relinquubed to the
United States, satisfied the reauirement of
that act that "in case the lano so selected
at tbe time of selection bs unsurveyed, the
list filed \tj the company shall describa
such tract in such manner as to deaignat*
the same with a reasonable degree of cer-
tainty," where such designation had th»
aid of an adjoining survey, and could b*
readily located from such survey.
[Bd. Note.— For other cues. Ba« Pnbtlo Laads.
Cwit. Dl(. 11 IM, Si-3U.]
APPEAL from tbe United States Circuit
Ckiurt of Appeals for the Ninth Circuit
to review a decree which affirmed a decres
of tha District Court for the Dietrict of
Idaho, dismissing the bill in a suit to e>>
tablish a trust in land selected by the
Northern Pacific Railway Company in lieu
of land within the Mount Banier National
Park, relinquished to the United States,
and to compel a conveyance thereof and to
quiet title. Affirmed.
See same ease below, 13S C. O. A. SSS,
221 Fed. 30.
Statement I^ Mr. Justice HcKennfti S
'Suit by appellant West (hs was plaintU*
In the court below and we shall so refer t«
him) against appelleee, the Edward Butledg*
« tepla * KBT-mniBBR In all K«T-Niimb«nd Dlnsts * ladeue (~) (~) Q I O
ST SUPBEUB COURT BXPORTEK.
Oor. Tbm,
Umber Company and tlia Nortiieiii Facifia
Bailwt,7 Compuij '(to be relsired to as the
timber company and rallwaj compaaj>, re-
qtectJTelf), to have pllautiff declared the
ttwner of certain described Ian da, the rail-
way eompajiy and ths timber company de-
ere«d to hold title thereto in trust for him,
to compel a conveyance to him, and to have
Us title to the lands quieted.
Plaintiff alleged himBelf qualiSed to lo-
eat« and settle upon tlie lands, they being
then unanrveyed and vacant, unoccupied and
unreserved lands belonging to the United
States, as to which no claim of right or title
to or interest in them had been made by
any person, nor was there any evidence
wbatsoever upon the lands or any part there-
of, or in the United States land office foi
the district (Ctsur d'Alene Land District).
or in the General Land Office In Waabingtoo,
showing any claim, right, title, or interest
in any other person, nor were there any
marks, blades, notices, or any other evidence
of the location, selection, claim, or posi
flion marked or traced upon the ground,
up«n or near the same, nor had the bounda-
ries thereof been traced or located by refer-
ence to any natural objects or monuments
of any kind or character.
That on July 17, 1905, the official plat of
the survey of the lands wa« filed in the local
land office in Cceur d'AIend City, Idaho,
and on that day the lands became open to
entry under the homcetead laws of the Unit-
ed States, and on that day plaintiff duly
made application to enter them under tba
homestead lavs, which application wai
jected by the local land office, and, on May
10, 1910, the order of rejection was approved
by the secretary of the Interior and the
finally closed.
That on June 21, 1901, the railway i
Mpany Qled in the General Land Office its
• selection list No. 61, which 'contained the
following pretended description, to wit, "the
southeast quarter of section 20, township 44
north, range 3 E., B. M."
That the description was wholly imagi-
nary, and that no lands in the state of Idaho
or elsewhere were or could be so designated
or described, for the reason that, at the time
of filing the list, no such surv^ had been
made or attempted. That neither the rail-
way company nor the timber company knew
or pretended to know what lands were re-
ferred to, or knew that, in the event of a
survey, the description would he applied to
the lands occupied by plaintiff. That the
description was wholly insufficient to locate
tlie lands or any part or parcel thereof, ren-
dering the list and selection of the railway
•onpaDy wholly void and of no effect what-
That on October 10, 1010, a patent to the
lands was iasned to the railway company.
That (this on Information and belief) tha
railway company conveyed the lands to tha
timbn' company, and that company now
claims to have the Ic^al title to the same.
That neither the railway company nor
the timber company, nor any agent or em-
ployee of either, has ever been in possession
of the lands, but plaintiff, ever since May
15, 1903, has been and now is in possession
thereof; that neither the railway company
nor the timber company has ever complied
with the laws of the United States so as to
entitle either of them to claim any interest
In or right to the lands as against plaintiff.
That the decision of the looal land office
and the successive approval thereof by the
Commissioner of the General Land Office
and the Secretary of the Interior were and
are wrongful, unlawful, and based upon an
erroneous construction of the law, and upon
a statement of facts concerning which thers
was and is no comlict.
That at the time the patent was issuedjj
to the railway 'company plaintiff was and*
now is the owner of the lands, and tlie it-
sue of the patent to the railway company waa
contrary to and without authority of law,
and in violatbn of plaintiff's rights; that
the railway cmnpany was without any right
or authority at law to select or claim tha
lands or any part thereof, and that the Act
of Congress of March 2, 1899 [30 Stat, at
L. 003, chap. 377, Comp. Stat. 1016, j 6223],
upon and by virtue of which the railway
company based its right to select and claim
the lands, is unconstitutional and void, and
confers no right whatsoever upon the rail-
nay company to select or claim the lands or
any part thereof against plaintiff.
The answer of the timber company admit-
ted certain allega,tions of the bill of com-
plaint, but denied that the lands were vacant
and open to settlement, or that they were
unclaimed or unsegregated or not marked or
traced by boundaries, and alleged that the
fact of Uieir appropriation and segr^atiou
appeared on the records of the local land
office and of the General Land Office, and
that the boundaries and lines of survey were
duly and plainly traced and marked out
upon the lands and located by monument*
long prior to the time of plalnUff's settle-
ment thereon, and that plaintiff had foU
knowledge thereof and did not mter up<Hi
the lands in good faith, but only in the hop«
that the claim of the timber company and
railway company might be defeated on tech-
nical grounds.
That on June 21, 1001, the railway <xaa-
pany made selection of the lands under the
provisions of the act of Congresa «ititled,
"An Act to fi«t Aside a Portion of Ccrtnia
A^^OOglC
191«.
WEST T. KDWASD BUTLEDQB TIMBER 00.
Land* La tlia State of WMhIngton Kow
Known aa Uie Monnt Banier National
Fark," approred Uarch 2, 18S9 (30 Stat
at L. 993, chap. 377, Comp. Stat. 1916, S
6223), in lieu of an «qual quantity of land
ralinqulahed to the United Statei pursoant
to the proviBiMui of the act. lltat nich
Mleetion waa duly nutda in aeeordane* with
the condition! of the act and the rules and
2 regulationa of the Land Department, and
* described'as required b]r tlie act, and the
■election waa in all reipecta r^ular.
That on July IT, 1905, the official town-
■hip plat was filed in the local land office,
and the railway company. In accordance
with the provision! of 9 4 of the act ot Con-
gress, filed a new selection list which eon-
formed to the proviaionB of the act and the
nilu and legulatlona of the Land Depart-
^at at the time plaintiff made hi! al-
leged settlement upon the lands they had
been surveyed and the lines of lurvey
traced, and all other conditions arc
l^ed to have been satisfied.
The timber company prayed that It be
dismiased with CDsts.
The answer of the railway company waa
•ubgtantially the same «• tbat of the tim-
ber company.
To the issues thus framed the evidence
was addressed, upon which a decree waa
entered for defendants dismissing the bill,
neither party to recover coste or diaburse-
nenta from the other. 810 Fed. 160. It
was aflirmed by the circuit court of appeals.
136 C. C. A. £66. 221 Fed. 30.
Uesars. S. H. Stockelagcr, A. n. Ken-
jron, and Seabury Merritt for appellant.
Uesars. Obarlea Donnelly, Stllea W.
Bnrr, Charles W. Bunn, and James B,
Eorr for appellees.
Ur, Justice McKenna, after making the
above statement, delivered the opinion of
the court;
like controversy In the case turns on the
eonstruction and application of the act of
Congress. Because ot it the land offices,
local and geoeral, rejected plalntiS's ap-
plication to enter the landa as a home-
stead. By virtue ot it the railway and
{its grantee, the timber company, asaert
* title. Its primary purpoee waa to set
aaide certain public lands as a national
park, to be known as the Mount Banter
National Park. An obstacle to the purpose
waa a grant of the desired lands to the
Northern Pacific Ball road Company and
their relinquishment had to be provided
for. This was done (S 3) by authoHring
the eompany to select an eqaal quantity
•f public lands elsewhere, or, more ^scU*-
ally, within soy stats Into or througli
which the railroad ran. There was a quali-
fication of the character of the lands to bo
selected. Tlt^ were to be "nonmineral
publie lands, so elasslfled as noomina'al
at the time of actnal government survey,
which has been or shall be made, of th«
United States not reserved and to which
no adverse right or claim shall have at-
tactied or have been initiated at the time erf
tlie making of such selection." [30 Stat.
at L. 994, chap. 377, Comp. SUt. 1916, |
6225.]
It was provided (| 4) that upon the
filing by the railroad company of the selec-
tion at the local land office, and payment
of fees prescribed by law in analogous cases,
and the approval by the Secretary of the
Interior, he should cauae a patent to Issue
to the company, conveying to It the lands
so selected; that "in ease the land so aelec6>
ed at the time of selection be nnsurveyed,
the Hat filed by the company shall describe
such tract in such manner as to designate
the same with a reasonable degree of cer-
tainty;" and that, within thirty days after
the tract shall have been surveyed and the
plats thereof filed, a new selection shall \tt
filed by the company, describing the tract
according to such survey. And, further,
that In case the tract as originally selected
and described In the list filed In the local
land office shall not precisely conform to
the lines of the official survey, the company
shall be permitted to describe such tract
anew, so as to work sndi conformity.
Construing the act by its words tharo
would aeem to be no difficulty in determin-
ing its meaning. It would seem to be sim-
ple In pnrpose and clear In provision toj
accomplish the purpose. But plaintiff'
raises various questions npon tt. He as-
serts: (1) 'Hiat the grant was to the
Northern Pacific Ballroad Company and
could not be availed of by Its successor
through foreclosure, the Nortliern Paeifio
Bailway Company. (2) Iliat the lands
were classified as mineral under the Act
of Congress of February 26, 1695 [S3 Stat
at L. 693, chi^. 131], and the clasaiflcatlon
approved by the Secretary of the Interior
March, 1901, and the aurveyor having failed
to make any classification of the lands In
terms as nonmineral, they were not aubject
to selection. (3) That if the first and
second contentions be untenable, the lands
were not described "with a reasonable eerw
tUnty" so as to bar the rights of settlers
In good faith, without actual or eonstme-
tive notice.
(1) The argument advanced to nppoit
this proposition is that by the foreclosur*
proceeding* the Northern Pacific Ballroad
Ocs^aay eeassd to exist, and If everything
.A^iOOglC
87 SUPREUB COUBT REPOBTEB.
Oor. Ikutf
It had or h»A an Intartct In did not go out
of existtnce with It, at leaat Ita riglita
under tha Act of 1S9B did, and yat comuel
■ay plaintiff boa nothing to do "with the
question whether the convejanee of the
landa to Iha United Sta.tea tutder the prori-
•ione of the act convefad a ralid title."
It would be eomewhat anomaloue indeed
If the act eonTSfed to tbe United fitataa a
valid title, but did not convey to the rail-
road anything lubitantial that could be
tranafrared by lale under the deeree of a
eonrt to the ■ucceBBor of that company.
We might aak the question. Where In the
world ware the rights conveyed to the
road company left — and If left at all, by
whom were they to ba anforoed <w availed
•tT
We agree with the district eourt that, aa
a mere matter ol oonstruetlon, the conten-
tion of plaintiff must be rejected. In July,
1896 (Northern P. R. Ca t. Boyd, 228 U.
& «S2, 490, 67 L. ed. 031, S34, 33 Sup. Ct.
Bap. 664; Norihem P. R. Co. t. United
BtatM, 101 C. C. A. 117, 176 Fad. 706),
three years prior to the act o{ Congress,
^the railway company had became successor
■ to thaVailroad company, ita vendor through
tha foredoaure proceedings of the lauds
tba government desired, and yet tha latter
company was designated in the act as the
eompany to select the lands In compensa-
tion for those desired and taken by the gov-
amment for the Mount Ranler National
Park. It may b^ as eald by the district
oourt, a matter of q>eculation why the rail-
road company rather than the railway com-
pany was named ai grantee, but it Is cer-
tain it waa dona in recognition of rights,
And not in mere Jugglery to obtain lands
Ua tha National Park and convey nothing
to aithar company in return, — nothing to
the railroad company because, according to
the contention, it had gone out of existanoa;
nothing to the railway company because,
according to the contention. It had not snc-
oeeded to tha rights of the railroad com-
pany. On the contrary, wa mnst assume
that the act was passed and the railroad
company selected to consummate the ex-
change either by Itself or by its euccesaor,
the railway company, or by both. And
this was done, and the two companies and
the truateea of the railway company's mort-
gage joined in a deed of reconveyance to
the United States. And this purpose of
the act and what was done under it was
reeognized by the Land Bepartment. Dav-
wpcrt V. Northern P. R. Co. 32 Laud Dec
28; Ferguson v. Northern P. R. Co. 33
Land Dec. 634; Idaho v. Northern P. B.
Co. 37 Land Dec 135, 138. See also De-
lany v. Northern P. R. Co. 46 Land Dec.
0. It is pertinently said by oounsel for th«
mDwBy company] "n* government itself
Is satisfied with its title; and certainly It
cannot, while retaining that title, deny t«
those from whom it wu obtained the lands
offered in exchange."
12) As we have seen, the right waa t«
select "an equal quantity of nonmineral
publle lands, so classified as nonmineral
at the time of actual survey." The lands
are in fact nonmineral, but the contention
is that they were not so classiSad at thag
time of actual survey.* Hie deputy sur-*
veyor who made tha survey reported that
the lands, if cleared, would be suitable for
grazing, but at the time of the report were
mora valuable for their timber. This, it
is contended, is not a classification of tha
lands aa nonmineral; that it was not a
classification, but an omission to claaaify, —
negative, not affirmative; inferential, not
positive, — and therefore not a complianca
with the statute. We cannot concur. The
report was accepted by the Department aa
a description of the lands as nonmineral.
They could be made suitable for grazing
was the report; pending that time they
were more valuable for their timber. There
was positive deacription of their character;
words excluding some other character were
not necessary. Classification Is character-
ization through the selection of some qual-
ity or feature, and therefore lands may bs
daaslfied as pasture (grazing), timber,
arable, or mineral. It Is determined by sur-
face Indications. Uinerals may ha hidden
under any surface, but a surveyor ia not
expected to explore for them, that he may
include or exclude reference to them in
his reports. Such character la exceptional,
besides, and eoueidered by tha Land Offioa
as absent if not notad.i
The contention that the lands were classi-
fied aa mineral under tha Act of February
26, 1996, ia answered by the admission
made at tha trial that the records do not
show it.
(3) The act of Congreas authorised tha
selection ol an unsurveyed tract, but re-
quired it to tM deacribed "in such manner
as to designate the same with a reasonahis
■ ea of certainty," and It was provided
that, when surveyed, a new list was to ba
filed, describing the tract "according ta
such survey."
Hie lands, ws have secai, were designated}
by sectional 'number, township, and rang^*
and it ie contended that such designatimi —
'terms of future survey," as counsel term
1 Davenport v. Northern P. R. Co. 32
Und Dec. 2S; Bedal v. St. Paul, M. & M.
B. Co. 2S Land Deo. 264; Idaho v. Northers
P. B. Co. 37 Land Dec 136; Be St. Paul,
M. ft M. B. Co. 34 Land Dec Zllj Be North-
ern P. B. Co. 40 Lstnd Dao. 64.
.A^^OOglC
1016.
TOLEDO RAILWAYS « LIOHT 00. t. HILL.
»1
it— WM not *. deKription "with & rBoaon-
ftble degree of certainty."
This aeema to lure beeu the ouly oont«Ti-
tlon submitted to the court of appealB, and
upon careful eoniideration the court de-
cided against the contention upon the Act
of 1899, and, in analogy, upon other aet«
of Congress in relation to the public lauds,
uid also upon the rules and decisions of
the Land DepaTtment. It ii not necessary
to repeat the reaeoning of the court. What
was a description having "a reasonable de-
gree of certainty" was to be determined by
the circumetances. It was in the nature
of a question of fact and had tecta for
decision, as the conrt of appeals pointed
out. It had the aid of an adjoining survey,
and the lands could be readily liKated from
such survey. It was pointed out that the
act of Congress did not require exactness;
it oontcmplated a subsequent readjustment.
"Tlifl filing of the first list is in a sense
preliminary to obtaining the patent. It
initiates tiie right, and not as much par-
ticularity and exaetnesa Is ordinarily re-
quired as where final stages are to ba ob-
served fn clearing up and completing the
transaction. In fact, by contemplation of
the statute, the new selection is required
to conform with the established survey and
thus to correct the description In the pri-
mary selection. By reasonable intendment,
therefore, we are impressed that the de-
scription contained in the railway com-
pany's list No. 61, under the conditions
prevailing of the survey of township 46
to the north and the proximity of the land
in question thereto, designated the land
with a reasonable degree of certainty, and
must be held sufficient as a matter of law."
For the premises from which this excerpt
ia the conclusion we refer to the opinion.
The court of appeals said that the ques-
etion of the sufflctency of the description
• was "the single questioa'urged" for Its deci-
sion, and counsel for defendants contend
that no oUier question is open to our re-
view, and cite Montana B. Co. t. Warren,
137 U. S. 348, SSI, 34 L. ed. SSI, 682, II
Sup. Ct. Bep. 96. Plaintiff replies that the
principle of that case applies only to ques-
tions of procedure, and not to questions of
jurisdiction or the foundation of the right;
adducing Bosen v. United States, 161 U. 8.
29, 40 L. ed. 606, 16 Sup. Ct. Rep. 434, 10
Am. Crim. Bep. 261; Old Jordan Mln. &
UUl. Co. v. Society Anonyme des Mines, 164
U. S. 261, 41 L. ed. 427, 17 Sup. Ct Rep.
113; Gila Valley, G. i N. R. Co. -r. Hall,
232 U. 8. 94, 68 L. ed. 621, 34 Sup. Ct.
Rep. 229. See also Magruder v. Drury, 23S
U. 8. 106, 113, 69 L. ed. 161, 153, 36 8np.
Ct Rep. 77.
Tlie distinction between questions seems
to be artificial. His essential cUcnmstsnce
would seem to be that a review Is sought
of that which was not decided, not sub>
mitted at all, or withdrawn from submis-
sion, and which. If it had been submittsd,
might have been decided in Ivor td the
appealing party.
However, in deference to the earnestness
of counsel, we have considered the questions
AlBrmed.
TOLEDO RAILWAYS ft LIGHT COM.
PAHY, PUT. in Err.,
WALTER L. HILL and Ralph L. Spolts,
as Executors of the Last will and Testa-
ment of Harford B. Kirk, Deceased.
CoRPouTioita «B>e6IK4) — Aa WAim or
Objkctioh to Jukisdictiok — Suit
AaAlItST FOBEIOIT OOBFOaATIOIT,
to be amenable to service of process
there was not waived by filing an answer
to the merits after a motion to vacate the '
service of process had been overruled by
a Federal district court to which the cause
had been removed, where the answer did
not waive, but In terms reiterated, the plea
to the Jurisdiction, and the court treated
the subject as not open for consideration,
r^arding the previous mllng on the mo-
tion to vacate as eonclnsive.
{Bd. Note.— For othir easea, sa* Oorporatlons.
Cut. Dis. I isn.]
CoBPOiUTioHS *=842(1)— WaiT Aim Pao-
CEBs— Sebvice on Fobbiqh CoBPoaaTion
— "Domo BuBracaa,"
2. A provision in the mortgage bonds
of a foreign street railway corporation and
In the annexed coupons for a place of pay-
ment in the city of New York, and the pay-
ment of coupons at that place. Is not the
doing of business within the stats so as
to render the corporation amenable to serv-
ice of process there in an action upon tha
[BM. IfoU,-~ror Dthar tMatm. sM Oorporatleas,
Cent. DIE. H KIO, 2GI1.
For Dt£*r dadnltlani, *M Words wot PhrasM.
Pint and Beeona 8*iiei, Doing Bualnnss.]
OoapoBATioNB ^9668C7) — WniT ann Pbo-
CE89— SeBVICE on FOBBIOn CoaPORATIOH
— RB8IDE.VT OFTtCES.
3. The resident director and vice presi-
dent of a foreign oorporatlon may not be
served with process ta an action against
such corporation, where it Is not doing
business within the statet
ISO. Not*.— For other cuae, ■■• OorncratlODS,
CiinL DCs. I Mil.]
OoBPoaA^Tioire *=>e66g)— Warr ann Pao-
CESS— SKBVICB on FOBEIdH OOBFOEATB
MoBTa.i.soB— BEsiDEirT TBUffr^
4. The property of a foreign corpora-
tion cannot be said to have been trans-
ferred metaphysically speaking, from ths
state of its incorporation to the state of New
York, to be used as the basis of jnrisdicticHi
In the latter state In a suit upon ths com-
{sany's mortgage bonds, merely because the
trustee under tne mortgage was a Nsw Yoifc
=For ottaar cues si
is Ifiplo * KIT-NUHBBB In aU Kar-
"■Woogle
S7 6DFREUB COmiT REPOBTUR.
Oct. :
•arpvratltM, in wblch th* title to the mort-
figM proper^ foi the purpoH of the trust
IN ERROR to the Ditrtrict Court of the
United St&te« for the Soatbern DU-
trlet of Nev York to rerieir a. judgment
aion^ng the limbilit; of » foreign oor-
poratioD upon iti mortgAge bondi. Re-
Tenad and romuided, with directioni to di»-
mUa the complaint for vuit of JurUdio-
Thu fAota ere stated In the opinion.
MeuTB. Robert Bnme and Charlee A.
Tmeauff for plaintiff In error.
Meeera. Howard B. Gana, Paul M, Her-
cog, and Arthur Ga Tjvij for defendant* In
• 'Ur. Chief Juitlce 'Wbll« ddlvered the
«pInl<Hi of the court:
Averring thenselTea to ha citizens of the
United Statea, the one reeidlng in the citf
of New York and the other In Boston,
UasMchuaetts, the defendants in error in
April, 1914, sued in the enpreme court of
the state of New York to recover from the
plaintiff in error the principal and intersst
of certain bonds issued by the plaintiff in
error, alleged to be a corporation created
by the laws of Ohio. The Eummons was
served upon a director and vice presld»it of
the corporation, residing in the city of New
York. The corporation, appearing special-
ly for that purpose, on the ground of di-
versity of citizenship, removed the cause
to the district court of the United States
for the southern district of New York, and,
on tlie filing of the record in that court,
again aolely appearing for anch purpose,
moved to vacate the service of summons on
the ground that the corporation was creat-
ed by the laws of the state of Olila, and
was solely engaged in carrying on ita busl-
neas at Toledo in that sUtet that is, in
the operation of street railway! and the
fumiahlng of electrical energy for light and
other purposes. The motion to vacate ex-
gpreesly alleged that the corporation was
• prosecuting no* business in the state of New
York, and that the person upon whom the
■nmmons was served, although concededly
•n dDoer of the corporation, had no autiior-
tty whatever to transact business tor or
represmt the corporation In the state of
New York. On the papers, affidavits, and
daennents submitted, the motion to vacate
w»s rafnaed and an answer was mbsequently
filed by the corporation setting up varlona
defenses to the merits and besides reassert-
ing the challenge to the jurisdiction. At
the trial, presided over by a different judge
from the one who had heard and adversely
disposed of the challenge to the jurisdiction,
the court, treating the ruling on that sub-
ject as conclusive, declined, therefore, to
entertain the request of the corporation ta
consider the matter aa urged in the answer.
Alter this ruling the corporation refused
to take part in the trial on the merits ex-
cept to tjie extent that by way of objections
to evidence, requests for rulings and instruc-
tions to the jury. It restated and reurged
its previous contention as to jurisdiction.
There was a verdict and judgment for the
plaintiffs, and this direct writ of error to
review alone the ruling as to jurisdiction
was prosecuted, the record oontaining th«
certificate of the trial judge, aa required by
the statute.
Upon the theory that, as there was cU-
vcrsity of oitizanship, the challenge to tho
jurisdiction involved merely authority over
the person, it is insisted tliat even If the
objection be conceded to have been well
taken, it was subject to be waived and waa
waived lielow, and therefore is not open.
This must be first disposed of. The con-
trition rests upon the proposition that be-
cause, after the motion to vacate bod been
overruled, an answer to the merits was
filed, therefore the right to assail the ju-
risdiction was waived. But this disregards
the fact that the answer did not waive, but
In ternu reiterated, the plea to the juris-
diction. It further disregards the fact that
the court treated the subject as not openg
for consideration *i>ecanse of the previous*
ruling on the motion to vacate. Moreover,
aa it has been settled that the right to
review by direct writ of error a question at
jurisdiction may not be availed of until
after final judgment (McLish v. Roff, 141
U. S. 681, 35 L. ed. 803, 12 Sup. Ct Kep.
118), it follows iJiat the contention musk
be either that there is no right to review at
all, or th«t it can only be enjoyed by waiv-
Ing all defense as to the merits and sub-
mitting to an adverse judgment. Tb»
contention, however, lias been conclusively
adversely disposed of. St. Louis Southweat-
em R. Co. v. Alexander. 227 U. S. 218, 57 Ik
ed. 48S, 33 Sup. Ct Rep. 845, Ann. Caa.
181 SB, 77.
Leaving aside the capacity of the person
upon whom the summons was served, which
we shall hereafter consider, the facts upon
wliich the question of jurisdiction depends
are briefly these: The corporation waa er»>
ated by the laws of the state of Ohio, had
its principal eetablislunent and business at
Toledo, sAd earried on no business in tka
*s>rsroUw«i
IS topic * KST-NUUBBR IB all K«7-Numbar*d DIgMts * Indass
A^^OOglC
Ull,
UEISUEAS T. QREENOUGH KED ASH COAL CO.
■teta of New Tork qhUu the eoDtraiy
••Dcliuiom result) from the following ttatA-
ment: Is IfiOl the corporation iuued ita
bond* and Mcured the Mjne bf mortgage.
Hie truitce tuder Uia mortgage was the
United States Uortgage & Trust Companj
ot the atr of New Yoik, and the bonds
were dallTered to that company, to ba uer-
tlfled in accordance with the provisions of
the deed. The bonds ware subject to regis-
try and became due and were payable on
July 1, 190S, "at the flacal ofBce of said
company in the city of New York," and the
aemiasnual interest coupon* were also pay-
able "at the Hscal td&ce of said company
In the cit7 of New York." Prior to 1909,
when the company defaulted tn the pay-
ment of the principal and interest on ita
bonda, the intereat coupons ware paid at
the ofSce of a commercial flrm In New York
representing the company for such purpoee,
but that representation wholly ceased after
the defanlt, and from that date until this
euit was brought, about Ave years later,
the company had no offlca for any purpose
in the state of New Yoric, and transacted no
g buainess therein.
■ *The reaeon which controltad the court
below, and the aole contention here relied
upon, therefore, was and is tliat the pro-
vision for the payment of the bonda and
coupons at an oQIce In the city of New
York constituted a doing of buiineat in
New York so aa to aEford juriadiction there;
and that auch result continued to operate
years after the office for auch purpoae had
ceased to exist, upon the ground that, for
the purpose of jurisdiction over the cor-
poration, it must be conclualvely presumed
to have continued to maintain an office in
the city of New York for the purpose stated.
But we think from either point of view
the contention ia without merit: the flrst,
beeanae the mere provision for a place of
payment in the city of New York of the
bonds and the coupons annexed to them,
at thalr maturity, and thair payment at
■uch place, waa in no true sense the carry-
ing on by the corporation in New York of
Qia business which it was chartered to
•arry on, however much It may have been
■n agreement by the corporation to pay
fn New York an obligation resulting from
the carrying on by it of Its bUBineas in
the atate of Ohio. And this view neceasarily
dispose* of the propoaition in the second
aspect, since the indulging in tha fiction of
the existence of an office for the payment
of coupons could not produce an effect
greater than that whicA could ba produced
by tlie real existence of the office.
So far as eoncemi the capacity of the
person upon whom the eununona waa served
breepactive of tha doing of busineas by tha
corporation In tiw state, we do not ex-
presaly notice the various contention* by
which, under such a view, jurisdiction ia
sought to ba supported, but content our-
celve* with saying that wa think they are
all plainly without merit.
Although what we have aatd In aubatanea
meet* and dlaposea of all the contentions
relied upon to sustain the jurisdiction, we
have not expreatly noticed them all becanss
of their obvious want of merit, — a situation^
whieli>is illustrated by the mere statement*
of a contoition made that, aa the trustee
under the mortgage waa a New York oop-
poration in whom the title to the mortgaged
property for the purposes of the trust waa
vetted, tberefore all tha property of the
corporation must be metaphyaically consid-
ered to have been translated fnmi the state
of Ohio to the stat« of New York, and used
as a basis of jurisdiction in such latter
sUte.
Reversed and remanded with directions to
dismiss the complaint for want of jurisdic-
OoRFOBATions 4=9666(4) — WaiTXB of
Objection to JuBisnicrnon' — Sun
AQAIMBT rOBEIOH CoKPORATroIT.
1. Tlie right of a foreign corporation
to challenge the jurisdiction waa not loat
by a apecial appearance for the sole pur-
pose of objecting to the jurisdiction 1^ a
motion to vacate the aervice of summons,
nor by tba postponement, at plaintiff's re-
quest, of the hearing on tha motion, condi-
tioned upon the reservation to the corpora-
tion of tne right to plead to the merits if,
upon the hearing, jurisdiction was found
to exist, nor becauae the order for the con*
tinuance directed the plaintiff to amend so
as to fully disclose cltiienahip before tha
day set for the hearing of the motion.
[Ed. Note.— For olbar cbms, sn Corporations,
OMlt. DlS. I iETl.l
OouSTS ^=3340— Practice -~ CoNFOBifTTX
AcT^-GBATJ.EnOTNO JUBIBDICTTOH BT MO-
TION TO QUABH— Dehcbbbb.
2. Jurisdiction of a Federal diatrlet
court over a foreign corporation not doing
business within the state may, notwith-
standing the Conformity Act (U. B. Rev.
Stat. S 914, Comp. Stat. 1916, S 1637), ba
raa. nou.
M tepU * EBT-NUICBKE la all K*r-HtUDb*r«a DlgetU * Inaexaa
A-iOOgIC
37 SUPREMB COUBT RKPOKTBS.
Oct. TtBU,
IN ESROB to the Diatrict Court of the
United StfttM lor ths Eastern DiBtriet
of Nev York to review a judgment diuniBi-
ing, for Iftck of Juriadlctiou, *n action
ftgainst K foreign corporation not doing
businesi in the state. Affirmed.
The facta are ttated In the opinion.
MetsTB. Jesse C. Adklns, Alvin G. Cms,
BaltruB S. Yankaua, and Frank J. Felbel
ior plaintiff in error.
Messrs. Charles W. Plcrson and Clif-
ton P. Williamson for defendant in error.
■ *Hr. Chief JuBtic« Vblt« deiiTered the
Opinion of the court:
Alleging himself to be a citizen of New
York and a resident in the eastern dis-
trict, the plaintiff in error sued below to
recover from the defendant in error the
amount of damages alleged to have been
bj him suffered as the result of an explosion
of dynamite while be, the plaintiff, was
engaged as a servant of the defendant in
working in a coal mine belonging to and
operated bj it near Shamokin, Penns;!-
vania. The defendant was alleged to be a
oorporatioD created under the laws of the
BtAte of Pennsylvania and a resident of
that state, having its principal place of
businCH at Shamokin. It was alleged, how-
ever, as a basis for jurisdiction, that the
corporation carried on business In the state
of New York and had priqiert; therein.
The summons was personally served upon
the president of the corpt^ation who was
found in the borough of Manhattan, in the
■euthern district.
Upon the complaint and summons and an
affidavit of Its presidmt, the oorporatlon,
appearing specially "for the sole and single
purpose of ohjecthig to the jurisdiction of
this court over the defendant in this action,"
moved "to set aside and declare null, mid,
and of no effect the attempted service of
the summons," upiHi the ground that tlifl
corporation had no property in the state of
g New York and transacted no business there-
■ In, and although ita'president was personal-
ly served while temporarily in the southern
district of New York, he was there engaged
In the transaction of no business for or on
account of the eorporation, and had no au-
thority so to do. A bearing was ordered
on the motion. At the hour fixed for the
hearing, at the request of the plaintiff, it
was continued, the court, however, in ax-
preM terms subjecting the continuance to
the eondiUon Uiat Cbe defendant should
not loM hia right to plead la Uie mer-
its if, <m Qie hearing on the queatlon
•f jnrisdktioB, on the poatponed day, an-
tliority to entertain the eaose was snstained.
In addition the plaintiff waa ordered within
six days to file an amended complaint
"showing whether the plaintiff Is an alisi
or a eltizen of the United States, and If a
eitiun, whether native bom or natnraliced,
and the date and plstce of such naturalfza-
ticm, if any." He amended complaint waa
filed, showing the plaintiff to be an alien,
and subseqnently on the hearing on the
motion to quash tiia summons an affidavit
for the purpose of supporting tl>e jurisdic-
tion was filed on behalf of the plaintiff. It
la true, however, to say that this affidavit
did not rebut the facts as to the nondoing
of business and the absence of property of
the corporation In the state of New York,
and the want of authority on the part of
its president, upon whom the summons had
been served, to represent the corporation
or transact any buaineas in New York in
its behalf, lie summons was quashed and
the suit diamiased, and the direct appeal
which is before os on the question of juria-
diction was then taken.
Despite some apparent ooutention to the
contrary there is no room for any contro-
versy concerning the facts upon which the
court below based its action; that Is, the
nondoing of business by the corporation in
New York and the absence of authority in
its preaidoit to represent it there. Indeed,
the argument freely admits this and pro-
ceeds upon the theory that, althoi^ *^^
facts clearly 'establish the eorrectneaa of*
the ruling below U they are considered,
yet they are not subjeot to be so considered
because the challenge to the jurisdiction was
waived by tli« proceedings which were tak^
to question it. Oenerieally this would seem
to rest upon the proposition that because
there waa a special appearance on the faos
of the summons and complaint, '■>i«ti»gl»ig
the jurisdiction, thereby the right to so
challenge was waived. But the contrary
has been so long established and is so ele-
mentary that the proposition need be no
further noticed.
Although this he tame, the argument fur-
ther is that the right to be heard <ai thg
chall«age to the jurisdiction waa lost be-
cause of the postponement of the hearing on
that subject which waa granted, ^is,
however, in a diffemt form but anbodies
the error involved In the proposition Just
disposed of. But, aside from this, as the
continuance was granted at the request of
the plaintiff, and for the purpose of sn-
abling him to be fnlly heard on the subject
of jurisdiction, no farther reference to the
propositiiHi is required. Again, it la urged
that because, as a eonditloa at the continn-
aaea the ooort reaerved the rl^t erf the de-
fendant to plead to tba msrlta if, on ths
A^^OOglC
JBIO.
AMTCRTCAW 13.PEESS CO. t. mniKD STATES HOBSE SHOE CO.
kHuliig, Jmiadietlon wu found to azbt,
tharefore tli« qneation (tf Jnriedietion m*
wftlved, — A condn^n wblctt U again too
obvlonalf wrong to require more thui atato-
nMnt to refute IL Moreover, it it lnaiit«d
that aa the order directing the plaintiff to
Mneod M u to fnllf diacloea citliatBhip
bafore the daj for the hearing on the mo-
tion as to jurisdiction waa an aserciae of
Jurisdiction resulting from aome auggestloo
•f the defendant, therefore the question of
jurisdiction was not open. But this dis-
regards the fact that the order in question
was expreasif made hj the court, doubtlese
in the discharge of its duty to see to It
that, from DO point of view, ww ita juris-
diction abused.
Finally, it ia said that aa, under the
n local law, the right to ehallenge the aum-
* mans and the jurisdiction resting* on It
eould only have been raised by demurrer,
therefore under tha Conformity Act (g 914,
Her. But Comp. Stat. 1916, | 1637) the
motion to quash the summons eould not be
oitertained, and, on the contrary, ahould
have been disregarded. We do not stop to
discuss the proposition since it Is too clear
(or discussion that its want of merit Is
foreclosed by previous decisions of this court
which have recngnited and upheld the prac-
tice of challenging the jurisdiction under
clreumstances like those here present by
way of motion to quash instead of by de-
murrer. Qoldey r. Homing News, lOS U.
S. 618, 39 L. cd. G17, IS Sup. Ct. Rep. seO;
Wabaeh Western B. Co. v. Brow, 1S4 U. 6.
£71, 41 L. ed. 431, 17 Sup. Ct Rep. 126;
St Louie Southwestern B. Co. v. Alexander,
S2T U. S. 218, 07 L. ed. 488, S3 Sup. Ct
B«p. 245, Ann. Caa. 1B16B, 77.
(tu U. s.n>
AMERICAN EXPRESS C0MPAN7, PUC.
in Grr.,
Cabuxbs «=>218(7)— LiiiuTiifa LubiutT—
AoBiKD Value.
1. A limitation of liability to an agreed
value on which the rata was based was
affected by a contract for interstate express
avriage, although the ahipper made no
dselaration of value, as the contract of
rfiipment contemplated, where other clauses
In the contract are suaceptible of no other
CKplanation than that they were intended
ttt fix a primary value to control as the
basis for fixing the rates and as a rule of
limitation of liability if the ahipper did
not, I^ making another and increased
valuer become liable for a higher rate and
uosMini the right to a greater recovery, and
where tha rate as charged clearly rested
iq>on the company's tariff as applied to
the shipment and the statement as to pri-
mary valne so fixed.
[Bd. Note.— E»r otlH-
Dfs. II m-HA. «+6.]
Oakbdus «=>Z18(7}— Lnnrino Liabiutt-^
AasacD Valcb— rAii.UBB to Post Rates.
2. The omission to post the rate
sheeta of an express company on file with
the Interstate Commerce CommisBlon does
not invalidate a limitation of the express
company's liability by Its contract of inter-
state ebipment to an agreed value made to
adjust the rate.
FBM. Nota.— For other cases, ■•• Carrtsn, Cent.
Dla. H VH-tM, M.]
Oakubbs ^=>218<7}— LiMcnas Lubujtt—
Agbxbd Tai.uk.
3. A limitation of the carrier's lia.
bill^ for an interstate shipment of liv*
stock, where the ahipper has made no deela-
pngnant to the declaration in the earrier**
rate sheets on file with the Interstato Com-
merce Commission that the rato schedules
dealing with merchandise, which Ncpresalj
provide that the primary limitations of
value fixed shall he the measure of the
charge and liability unless aaother and
higher valuation be declared, must not bt
applied to live stock. To liold otherwisa
would cause this clause to accomplish tlw
result which it was obviously intended to
prevent, 1. e., the control or modiflcation
of the charges contained in liva-stoclc
clauses I7 the provisions aa to merchan-
dise charges.
tSd. Nate.— F^r otbsr easM, sm carriers. Cent.
Dfr H tT«-<M, M.)
OamBiBBa «=s218<7>~LnnnnQ LtABtUTT—
AoBBBD Vai.de— Skipper's FAiLUaB to
Bxu> SHipPino ConTBACT.
4. The effect of a contract tor inter-
state carriage, made and signed by the
shipper, limiting the liabilify of the car-
rier to an agTMd value, made to adjust
the rate, may not be avoided, where it Is
valid from the point of view of the estab-
llslied rate sheets on file with the Inter-
state Commerce Commission, by the sug-
geation that, by neglect or inattention, the
contract whiob was entered into was not
read by the shipper.
rBd. Note.— Tor other sases, ss* Oarrlen, Osnt.
Dig. II (7i-«M, M.]
[No. 248.]
IN ERROR to the Supreme Court «t tha
State o( Pennsylvania to review a judg-
ment which affirmed a judgment of the
Court of Common Pleas of Erie Coun^,
In that stato, In favor of a thipper for tha
full amount of the damage to an interstato
shipment, notwithstanding the attempt by
the carrier to limit its liability to aa
•s ses same topic & KBT-NUHBBR In all Ker-Nnmbsrel Dlnsts * tafli
*^K~>o^le
Vr SOPBSUB COUBT RBFOBIEB.
Oct. 1
See Bkme cue below, 250 Pk SZT. H AU.
TOO.
The facta ere atated in the opinion.
Ueura. Charles F. Patterson and
ITrancis R. Harbison (or plaintift in error.
Mr. W. Pitt Gifford for defendant io
S
F "Mr. Chief Justice White delivered the
opinion of the court:
The subject-matter of this snlt Is the
liability, if any, of the plaintiff in error,
the ExpT«B« Compat)7, for the failure to
eafelj deliver a colt which was intrusted to
it bj the ag«nt of the defendant In error
at Milwaukee, Wisconsia, for traneporta-
tion to Erie, Pennsylvania, and, if there waa
any liability, the amount thereof. The ooti-
troTersy is here to review the action of
the court below in affirming a judgment of
the trial court, rendered on a verdict of
a jury finding that there was liability, and
fhinj! the amount at 11,916.70. 250 Pa.
627, 95 Atl. 706. Jurisdiction to review
rests upon the interstate commerce char-
acter of the shipment, involving various al-
e leged misconstructions ot the Act to Begn-
• late Commerce and 'con sequent deprivation
of Federal rights asserted to have arisen
from the course of the trial in the court
of first instance, as also from the action
of the court below in affirming. These con-
tentions in the courts below concerned both
the existence of liability, and, if any, the
■mount. Ab the result, however, of the
elusion of both courts as to the fact ot
negligence, and the absence of any ground
for clear conviction of error on the subject
(Great Northern R. Co. v. Knapp, 240 U. S.
464, 4eS, 60 L. ed. 746, 751, 36 Sup. Ot
Eep. 309; Baltimore t 0. R. Co. v. Whit-
acre. 242 U. S. 169, 61 Lu ed. 228. 37 Sup.
Ct Hep. 33), as well as because of the limita-
tions resulting from the errors assigned and
relied upon, the question of liability may
be put out of view, thus reducing the case
to a question of the amount, and that turns
on whether there was a limitation of lia-
bility and the right to make it.
The printed form of contract (express
receipt) which was declared on and made
a part of the complaint contained a capti
under a title "Notice to Shippers," directing
their attention to tlie fact that they must
Talua their property to be shipped, and that
the charges for transportation and the
of recovery in ease of loaa would be based
npon valuation. The contract Itaelf waa
entitled, limited Liability Llveatodc Con-
tract." Its first clause described the car-
rlajp which waa to b« provided tor with
appropriate blanks to enable the insertion ol
the live stock which it covered and the rat*
to be paid for the service, with a proviss
that the charge waa based npon valnatioB
Bxed tiy the shipper. The second claoss
stated a demand by the shipper for ratal
to be charged for tbe carriage, and that h»
was offered "by aald Express Company al-
ternative rat«s proportioned to the rains
of such animals, such value to be fixed and
declared by the shipper, and according to
the following tariff ot charges, vix.;" This
followed by clause 3, which contained
enumeratlona of various classes of animals,
fixing a primary valuation for each claaoj
for instance: "For . . . horsea . . .g
$100," • "For . . . eolts , , . $60.""
The fourth and fifth clauses provided that
after ascertaining tbe rate to be ehargdd
for all claaaea of animals embraced in clauss
by applying to those claasea the rat« pro-
vided by the tariff sheets filed according to
law with the Interstate Commerce Commls-
there should be added to such rats a
stated percentage of the amount by which
tbe declared valuation of the shipper ex-
ceeded tbe primary valuation fixed by the
terms of clause S. The fifth clause also
concluded with the declaration that ths
shipper, in order to avail himself of ths
alternative rates, had declared a value as
follows, and contained blanks for tbe inser-
tion of said valuation.
Tbere was filled in this blank contract, as
signed by the parties and as sued on, in
the first clause a statement of the animals
shipped, a mare and colt, and ot the rat^
$75. In the third clause containing tbe
enumeration of classes, in the doss as to
horses valued at $100 there was written
"$1D0," and In tbe class as to colts valued
at $50 there was written "«50." There was
no filling of the blank at the end of the
fifth clause, stating the owner's valuatlMi,
and that space, therefore, remained vacant.
There was evidence tending to show that
the shipper was experienced in shipping
horses and waa Informed of the right to
value, and that the rate as well as the
recovery would depend upon valuation. Evi-
dence waa also admitted, over objection of
the company, tending to show that the ship-
per was unaware of the valuation clanass
and that he signed the contract withont
reading ft. There was farther evidenco
that, OD tbe contrary, the ahipper was fully
informed by the agent and declared hi
purpose to fix the primary valuation and
not to exceed it. In addition, evidenos
was tendered by tbe defendant which was
rejected and objection resemd, tMidIng to
■how that, in consequence of Uie desire of
the shipper not to change the primary vata-
ation, that is, to adi^ the samey the flgoiss
,A_.OOglC
. iflie.
AUEEICAN BXPHESS CO- ▼■ UNITED STATES HOBSE SHOK 00.
WI
* tnitton into the dauaea of | 3 of #100 ka
to the auLTe and {60 as tlie «olt were writtoD
bj tba agent inadverteatlj 1b the wrong
place, intending to write them at the apace
left vacant for the ahipper'a valuation at
the end of clauee 6, and that for the lame
reaaon the rate charged waa based on the
tariff as applied to the prlmarjr valuation
aa stated In the third clause of the oontraet.
Putting out of view the conflicting ten-
dencies of the proof, and looking at the
subject-matter from the point of view of
the contract, that it was one Intended to
limit liability, or. In other words, to fix
a rate according to value, at the shipper's
election, and to regulate recoTerf in caoe
of loes correspondioglr, would eeem too
clear for anything hut itAtement. It is true
the intimation Is conveyed in the argument
that the altemative rate depended ezclu-
■ivelj upon the making of a valuation by
the shipper, and that where this was not
done, there was no valuation and no limi-
tation, and a consequent limited rate and
nnlimited liability. But the suggestion dia-
regards the stating of a value in the dlfler-
«ot clauses of g 3 which are ansceptible of
no other explanation than t^at they were
Intended as a primary value to control as
the basis for fixing the rates and as a rule
of limitation if the shipper did not, by
making another and increased value, be-
come liable for a higher rate and possess
the right to a greater recovery. To adopt
the suggestion would require a disregarding
of the plain terms of the contract, and
would leave no basis upon which to explain
the rate fixed, which clearly rested upon
the tariff as applied to the articles and the
■tatouent as to value fixed In the third
clause.
Tliat it waa In the power of the carrier
under the Act to Regulate Commerce, as
amended, to limit liability even in case of
negligence by affording the shipper an op-
portunity to pay a higher rate and secure
a higher recovery than the one initially
fixed by the carrier, is so conclusively settled
5 as to be beyond controversy. Adams Exp.
• Co. V. Croninger, 228 D. 8. 4B1, BT L. ed.
314, 44 L.1LA.(N.S.) 2S7, S3 Sup. Ct. Hep.
148i Kansas City Southern R. Co. v. Carl,
227 V. S. 039, 67 L. ed. 083, 33 Gup. Ct.
Hep. 391; Missouri, E. & T. R. Co. v. Har-
riman, 227 U. B. 657, 51 "L. ed. SSO, 33 Sup.
Ct. Rep. 397; Chicago, R. I. ft F. R. Co. v.
Cramer, 232 U. 8. 490, 6B L. ed. 607, 34
Snp. Ct. Rep. 383; Great Northern R. Co.
T. O'Connor, 23i! U, 8. 608, 68 I* ed. 703,
S4 Sup. Ct. Rep. 380, a N. C. C. A. S3;
Barton ft M. R. Co. v. Hooker, 233 V. S.
f7, eS L. ti. see, L.R.A.1S1GB, 460, 34 Snp.
CL Rep. S£6, Ann. Cas. 1916D, 693; Atchi-
wn, T. ft a F. K. Co. V. Boblnson, SSS U. 8.
173, 68 L. ed. BOl, 34 Sup. Ct. Sep. 668t
LouisvUle ft N. B. Co. t. Maxwell, 237 V.
S. 04, 69 L. ed. 863, L,RA.1S16B, OOS,
P.U.R.1916C, 300, 36 Sup. Ct. Rep. 494}
George N. Fierce Co. t. Wells, F. ft Co. 236
U. S. 278, GO L. ed. 670, 36 Sup. Ct. Rep.
361; Cincinnati, N. O. ft T. P. R. Co. v.
RMikln, 241 U. a 319, SO L. ed. 1022, LJt.A.
1917A, 266, 3« Sup. Ct Rep. 666; New
York C. ft H. E. R. Co. T. Beaham, 242
n. 8, 148, 61 li. ed. 210, 87 Sup. Ot Rep. 48.
These rulings are decisive unless it b«
that, for some reason, they are inapplicable,
and wfl briefiy consider separately the
grounds relied upon as demonstrating that
It la said the rate sheets filed with the
Interstate Commerce Commission, if th^
sustained the contract, were not posted,
and therefor* the contract must be treated
aa having nothing to rest upon. But the
proposition Is adversely disposed of by sev-
eral of the cases above cited. Kansas City
Southern R. Co. v. Carl, 227 V. 8. 639, 652,
67 L. ed. 683, 688, 83 Sup. Ct. Rep. 391;
Boston ft M. R. Co. v. Hooker, 233 U. a
97, 111, 68 L. cd. 888, 875, L.R.A.1015B,
450, 34 Sup. Ot Rep. G2S, Ann. Caa. 191SD,
693; Cincinnati, N. O. ft T. P. R. Co. t.
Rankin, 241 U. S. 319, 327, 00 L. ed. 1022,
L.R.A.1917A, 266, 36 Sup. Ct. Rep. 666 ; New
York C. ft H. R. R. Co. v. Beaham, 242 U-
-S. 148, 161, 61 L. ed. 210. 87 Snp.CtRep. 43.
But it is urged the contract of limitation
was void because it is shown to have been
illegal; that is, repugnant to the official
tariff sheets filed with tho Interstate Com-
merce Conmission, which, properly authen-
ticated, were offered in evidence. But, turn-
ing to the official tariff iheets as found in
the record. It is apparent that the terms
of the contract are substaatJally Identical
with the statement in the tariff sheets as
to the rates concerning the shipment of
live stock, and Indeed, eomparing the two,
it la impossible to reach any other con>w
elusion than that the* provisions of the?
contract were copied from the provisions
of tariff sheets. In substance the argu*
ment rests upon the assumption which we
have already disposed of; that is, that the
contract only provided for a limitation in
the event ot a declaration of value by the
shipper, and left no room for such a limita-
tion where the shipper obtained the lowest
possible rate by making do valuation, and
accepting the primary limit of value
stated in the contract by the carrier. The
argument aa we are now considering It
however, proceeds not solely upon the text
of the contract and the tariff sheets con-
cerning the carriage of live stock, but
additional^ np<m the effect produced npoa
•neh provisions by clauses in the tariff
,A_.OOglC
87 SUPREME COURT BEFORTEB.
OOT. Tbm,
■hesta relsUng to tbe TKlaa^Ion of mcr-
dundiae. Hie aii^iiieiit In thiE: that ab in
tha rate BChedulw dealingt witli merclian-
dUa TBluation it U expressly provided that
tha prtmarf limitation of value fixed atiall
ba the measure of the charge and liability
nnleaa another and higher valuation ba
declared, auch rule ought not to be deduced
from the proviHlona as to live atock valua-
tion vhere that atipulation is not found
In axpreas terms, and hence that. In tha
absence of an express valuation in a live-
atock contract by a ahipper, no primary
limitation on value is possible, and thus
the rule of the lesser the rate the greater
the reaponsibility would necesssxily, in tha
case of live stock, come to pass. Incongru-
ous aa this result would be, It is said
Uiat it should be applied since, in the rate
sheet concerning merchandise. It Is declared
in 1 d that "these chargea must not be
applied to live animala, live birds or live
stock (see fg]," that is, the live-stock para-
graph. But to giv* to tjie clause the import
claimed for It would be to cause it to ac-
complish the very result which it was ob-
viously intended to prevent; that is, the
eontrol or modiflcation of the charges con-
tMned in live-stock clauses by the provisions
M to merchandisa charges. Indeed, the eom-
Igplete answer to the proposition la the cms
* which wa'have previously pointed out In
conHidering the argument in another form
«f statement, — that to accede to it would
require a plain disregard of the fixing of a
primary valuation by the terms of the con-
tract and the sanction of the right to do so,
found in the express worda of the rate
Finally, It b said that the rij^t to limit
ought not to be reci^nizad in the presence
of a controversy and confiictiug tendencies
of proof as to whether the limitation of
liability waa called to the attention of the
ahipper, and, if one aspect be accepted, of
the poaatbility that tha contract waa signed
by the shipper in ignorance of tha clause.
Bnt here again the contention but ovarlooka
tbe very foundation upon which the prin-
ciple settled by the adjudged caaes rests and
discegards the axpress ruling in some of
them, that the effect of a contract made
and signed hy a shipper, which is lawful
from the point of view of the established
tate sheets, may not be avoided by the sug-
geation that, by neglect or inatt«ation, the
flontract which waa entered into was ne
i«ad. Cincinnati, If. O. ft T. P. R. Co.
Banhin, 241 U. S, 3Ip, 80 L. ed. 1022, L.R.A.
1017A, 265, Z6 Sup. Ct. Rep. 6G6; New York
a ft H. R. R. Co. T. Beaham, 242 U. S. 14B,
ISl. 61 L. ed. 210, 37 Sup. Ct B«p. 4S.
As from what we have said it follows
that the shipper should not have been per-
mitted, after obtaining the loweat possible
rata based upon a valuation to which his
right of recovery in case of loss was lim-
ited, to recover, upon the happening of the
Ion, an amount wholly disproportionate and
inconsistent with the rate paid, contrary to
tha expreaa terma of the contract, it reaulta
that the judgment below must be and it ia
revaraed and the case remanded for further
proceedings not inconstgtent with this opia*
And it is so ordered.
(M u. B. en
MENNBAPOLIS ft ST. LOUIS RAILROAD
COMPANY, PUT. in Err.,
NORA GOISCHALL, as Administratrix ol
tbe Estate of Uerlin E. GotschaU, Da-
Uabtkb AMD Sebvaiit <»26G(6)— Pbisdvp-
TioN — InFEB&iKO Nequqehok nou
OpKNina or Autoiutic Ooupleb.
1. N^IIgence may be inferred from
»e mere opening of an automatic coupler
while a tram which was transporting inter-
state freight was in motion, thereby caus-
ing the death of a brakeman, in view of
the positive duty imposed by the Federal
statutes to furnish safe appliances for the
DUpling of cars.
nu. Note.— For oChar cases, ass Uaatar aod
Benrant. (Mt Dig. H 8tt, »6.]
Masteb sjfD Skkvart «s>281<1) — Sum-
ghhot or EIvidenok to ao to Jo»t—
Ekpldiebs' Liabiutt— Satbtt ArpL!-
AHCES— PECUniABT LOBS.
2. An action under the Federal Em-
ployer^ UabiUtT Act* for the death ^ »
minor need not be taken from the jury on
tbe ground that there was no evidence of
pecuniary lose resulting to the father, on
whose behalf the suit was brought, wher^
under the local law, a father is entitled to
the earnings of his son during minority.
[Sd, Nats.— Far otbar cum, see Uaater and
BUTsnt ODt DIS. I 1000.]
[No. 261.]
Argued and submitted April 0, 1917. !)••
cided May 21, 1917.
IN ERROR to the Supreme Court of tha
State of Minnesota to review a Judg*
ment which, on a second appeal, affirmitd a
judgment of the District Court of Ramaey
County, in that state, in favor of plaintiff
in an action for a death, brought under the
Federal Employers' Liability Act. Af-
See same ease below, on first appeal, I2fi
Minn. G26, 147 N. W. 430; on second 1^
peal, 130 Minn. 33, 153 N. W. 120.
The facts are stated In the opinion.
Messrs. William H. Bremner and
Frederick M. Uln^ for plaintiff in error.
at caaM sea s*mg topic ft KBY-NUUBBR In all Ee7-Nuub<r«d Dls«ats A Indexaa
•Aat i«rU a, IMS. c. lU, IS StaL <S (Camp. St. UK, || M&T-WtG).
A^^OOglC
OmO RIVER CONTRACT CO. r. GORDON.
Mr. Chief Justice Wblt« dellTered the
opinion of tli« court:
Basitig her eauae of action apon the Fed-
eral Employers' Liability Act, the defendut
in MTor, as administratrix of the eatat«
of Merlin E. Gotschall, deceased, sued to re-
ooTer from the railroad company, plaintiff
in error, damages resulting from bis death,
alleged to have heen occaaioned by the neg-
ligence of the company while ha wae In Ita
g employ, engaged in intcratata commerce.
• On thie writ of«eiTor a rereraal ii aon^t
of the action of the court below in afDrmlng
a Judgment entered by the trial court on
tiie verdict of a jury in favor of the plain-
tiff.
The evidence tended to show the following
facta: Qotacball, a minor, twenty yeara
old, at the time in questitm was head hrake-
man on an extra freight train running from
Albert Lea, Minnesota, to Minneapolis, and
trangporting interstate commerce merchan-
dise. As the train left Jordan, an inter-
mediate station, Gotachall boarded a car
toward the rear end and was proceeding
along the tope of the cars toward the loco-
motive when the train separated because
of the opening of a coupler on one of the
oars, resulting in an automaUc setting of
the emergency brakes and a audden jerk,
which threw Gotscball oB the train and
under the wheels.
Tbe jury, under an instruction of the
eonrt, waa permitted to Infer negligence
on the part of the company from the fact
that the coupler failed to perform its func-
tion, there being no other proof of negli-
gence. It is Insisted this was error, since,
aa there was no other evidence of negligence
on the part of the company, the instruction
of the court was erroneous as, from what-
•rer point of view looked at. It was but an
application of the principle designated as
res ipsa loquitur, a doctrine the unsound-
ness of which. It Is said, plainly results from
the decisions In Patton v. Texas APR. Co.
170 O. 8. 868, 4S L. ed. 3BI, 21 Sup. Ct.
Rep. 27S, and Looney v. Metropolitan R.
Co. 200 U. S. 480, SO L. ed. 664, 26 Sup. Ct.
Rep. 303, 10 Am. Neg. Rep. 627. We think
the contention is without merit because, con-
ceding in the fullest measure the oorrect-
neas of the rulhg announced In the cases
relied upon to the effect that n^ligence
may not be inferred from the mere happen-
ing of an accident except under the most
exceptional circumstances, we are of opin-
ion such principle Is here not controlling
tn view of the positive duty Imposed by the
atatut« upon the railroad to furnish safe
appUaneea for the coupling of cars. "'
Loul^ I. M. * S. R. Co. T. Taylor, 210'UT
S. 2S1, 204, 206, 52 L. sd. 1061, 1067, 1008,
28 Sup. Ct Rep. 616, 21 Am. Neg. Rep.
Chicago, B. i Q. B. Co. v. United
SUtes, £20 U. 8. 660, 676, G6L.ed.GS2,
688, 31 Sup. Ct. Rep. S12; Delk v. St Louia
t B. F. E. Go. £20 U. S. 680, G86, G5 L. ed.
600, 606, 31 8np. Ct Rep. 017; Texaa ft
P. R. Co. T. Elgshy, 241 U. H. 33, 43,
60 L. ed. 874, 878, 3fl Sup. Ct Rep. 482.
Again It Is Insisted that error was com-
mitted In submitting the case to the jury
because there was no evidence of pecuniary
loss resulting to Gotachall's father, on whoee
behalf the suit waa brought But this dls-
'garda the undisputed fact that the de-
ceased waa a minor, and as, under the Min-
nesota law, the father waa entitled to the
earnings of his sen during minorily, the
question Is one not of right to recover, but
only of the amount of damages whidt It
waa proper to award.
AfDrmed.
<t« a. 8. tt)
OHIO RIVER CONTRACT COMPANY,
Plff. In Err.,
Cotnn «=>489(1)— JinusDiction— PnmN-
Ai. Injubt AonoR— AooiDKifT OM Gov-
KaHMXilT WOBK.
1. A state court is not without jnria-
diotiou of a personal-injury action merely
because the parties, at the time of the ac-
cident, were engaged In work under a con-
tract with the United States government
SM. Note.— For atbar oasts, ass Oonrta, Orot.
. lim]
CouBTB <s»4S9(10}-~8KKviax oir Ponuon
CoMPOKATioit — "Doing Busiiran in
State."
2. A foreign corporation engaged In
constructing, under a contract with the
United States government, a canal on a
parcel of land known as the "Canal Reserva-
tion," acquired by the United States by pur-
chase or condemnation from the stata, with
the consent of ita legislature, is doing busi-
ness within the state so as to be amenable
to the jurisdiction of the state courts, even
conceding that such reservation was within
the exclusive Jurisdiction of Congress,
where, in order to dispose of the material
excavated, a line of railway had been built
by the corporation, extending beyond the
reservation, and connecting with the tracks
of a railway company upon whose property
within the state all the earth and rodcs
were dumped.
OouxTS «=a489(10) — JmasDnTnOH— FoB-
MIQN GOBPOBATtON -~ PKBAOnAI. IKJUBT
AoTioR — AcciDxitT ox Qorxunam
Lano.
3. The jurisdiction of state courta over
a personal- mjury action againat a forsiga
IS topic * KBT-miHBER In atl Kej-Numbered Dlsasts A IndexM
.A^^OO^IC
ST SUFBEUE OOUBT BZPORTEK.
Oor. :
ootponttlini doing bnBlnm wUhin tbe ttMi»
■o ms to be mmeiiable to Hrvice of procMi
thera la not defeated because tbe injnij ont
ol whidi Uie »um of action arose happened
on land over which the Federal government
had eiclucive jtiriadiction.
[No. 594.]
Argued and enbmittMl April 9, 1917. De-
cided May 21, I01T.
IK EKROR to the Court of Appeab of the
State of Eentnclcj to review ■ judgment
diamiBsing the petition for a writ of pro-
hibition directed to the judge of the Circuit
Court of Jefferson County, in that itatc,
to reBtrain further proceedings in a per-
■onal-injury action brought against a for-
eign corporation engaged on work for the
Federal governiDeDt Affirmed.
See same ease below, 170 Kj. 412, 186 a
W. 17B.
The facta are stated In th* oplnlwi.
Maura. W. Overton Harrla and A. R
Richards for plaintiff in error.
Measra. Matthew O'Doherty and Mor-
ton E. Yonts for defendant in error.
f *Mr. Chiof Justice Vbile delivered the
opinion of the court;
In July, 1014, one Haines sued the Ohio
Blver Contract Company, the plaintiS
error, and Swisher, one of its employees, in
the circuit court of Jefferaon county, Ken-
tucky, to recover damages reaulting from
personal injuries alleged to have been oc-
oasioned by the negligence of the defendanto
while HaineB was in the employ of the oom-
pany. The defendant company by appro-
priato pleadings challenged the power of
the court to entertain the suit, both because
of the want of jurisdiction over the corpora-
tion and over the aubj act-matter of the suit.
Briefly the facta ware these:
b The Contract Company was a corporation
* organized 'under the laws of Indiana, and
had its principal place of business in that
state. At the time in question it waa en-
gaged within the geographical limits of the
atoto of Kentucky in eonatructing, under
a contract with tiie United States govern-
ment, a canal with locka and dam on the
Ohio river on a piece of land loiown as
the Canal Beaenration, acquired by the Unit-
ed States by purchase or condemnation from
the state of Kentucky with tbe consent of
Its I^alature. While moat of the work
under the contract was performed on the
land thus acquired, the earth and rocks
excavated in the construction of the canal
were hauled over railroad tracks laid by
the defendant company on land outside of
the Canal Reeervation, and, through an ar-
rangement with the Kentucky i Indian*
Terminal Railway Company, were dumped
on it^ property in the state of Kentudcy.
The accident which gave rise to the in-
juries complained of occurred In the course
of the work on tbe Canal Reservation. In
etmformity with a statuto of Kentucky the
company had designated an agent in the
state upon whom process mif^t be served
in the event auita were brought against it
In the state. The summons issued in the
cause was served on the designated agent
when he was on the land of the United
States, but subsequently an alias summona
was served on him at his home in Louis-
ville.
Under these facts it was insisted th*
court was without jurisdiction (a) because
when the accident occurred the company
and the plaintiff were engaged In work uu-
der a contract with the United States gat-
emment; (b) because the cause of action
arose on land acquired by the United States
by purchase or condemnation with the con-
sent of the legislature of Kentucky, and
therefore, under article 1, g B, dauae 17,
of the Constitution of the United States,
the jurisdiction of the Federal government
waa exclusive; (e) because the service of
the original summons was void, since it waa
made upon the land of the United Statee.'J
'where, it was Insisted, state process cannot*
run; and (d) because the service of the
alias summons was also void since the com-
pany transacted no business in the state, and
the person served was not its agent for any
purpose in tbe state, but r^resented the
company only in its work on the reserva-
tion, ^e objections of the company to
the Jurisdiction were overruled and the case
was set down for trial. Tliereupon the
company, desiring a review of the jurisdic-
tional questions, and In order to avoid th*
consequences of the rule under the Ken<
tncky practice that the appearance of ft
party on appeal operates as a waiver of a
claim of want of jurisdiction over his person
(Western Life Indemnity Go. v. Rupp, 23a
U. B. 201, 59 L. ed. 220, 35 Sup. Ct Kep.
37), applied to the court below for a writ
of prohibition directed to the trial judge
to restrain him from proceeding further la
the cause. A temporary restraining order
was granted, bnt, on final Rearing, the pe-
tition was overruled and the writ of pro-
hibition denied, and upon the theory, whidi
was adequately presented below, that to sub-
ject the defendant corporation to the juris-
diction of the state court under the circum-
stances stated would be a violation of due
process, in conflict with the 14th Amend-
ment, this writ of error was prosecuted.
At the present torm, on application of
D,at,z.d-,.'^-.00'^IC
U16.
OHIO RIVER CONTRACT CO. t. GORDON.
Ml
^h» plaintiff in error, ma order was laiaed
to rMtmin further proceeding! in the eauM
In the courts below pending the deciai(» of
4he CAM here.
We at once put out of riew the contention
that the trial court was without Juriediction
became the parties, at the time of the ac-
cident, were engaged In work under a con-
tract with the United Statea goremment,
-aliMa the want of merit in the propoiltion
has been previously established. Oromor t.
Standard Dredging Co. 224 U. S. 362, STl,
«l L. ed. 801, 38 Sup. Ct Rep. 490.
The remaining eonteutfons are alio, we
f think, without merit. Conceding, for the
'■ aake of the argument only, that'the Canal
Reaervation was within the ezduilT* I^-
islative jurisdiction of Congrew, it is clear
'from the facte we have stated that the
'business carried on hj the corporaUon waa
inot confined to t^e land owned bj the
Cnited autes, since ii is admitted that, In
4ffder to dispose of the material UcaTated
in the eooatroction of tha '**"fljj a Usa flf
railway waa built which extended beyond
the reserration and connected with the
tracks of tiie Kentucky k Indiana Terminal
Railway, upon whose property all of the
earth and rocks were dumped. This dearly
constituted the doing of businees within
the state and subjected the corporation to
the jurisdictiofi of the Kentucky court*.
Assuming also, for argument's sake only,
that the original summons was void because
serred on the agent designated by the com-
pany while he was on the reeerratlon, the
subsequent serrlce of the alias summons
on the agent at his liome In Louierille wsa
valid, since^ as we have seen, the company
was doing business in the state. And final-
ly, an action for personal injuries being in
its nature transitory and susceptible of be-
ing brought in any jurisdiction In which
the defendant may be impleaded, there Is
no foundation for the contention that tha
court had no jurigdlctlon ow tba aabjaot-
matter of the suit.
>v Google
eoS 37 SUFREUE CXJURT REPORTER.
(Ht U. 8. nt)
MISSISSIPPI RAILROAD COMMISSION
and Rms a. Collins, Attorn^ Ooianl,
Appta,
RAn^BOADa 4=>227— Rkoci^atior or Truh
SKHVIOX— O'lTT-OF-POOKKr OOSTK.
1. Tha rMMon»blaieu of orders of ft
eUt« Railrokd OommiBaioD directing the
roatortiJoii to Mrriea of certain paaaenger
traina <!aimot be made to turn npon wliat
tlie Conuniuion e«tiinat«d waa the "onfr«f-
pocket" eost, the immediate cash outlay la
wages, and fuel to operate meli tralna.
[Bd. Nota,-Tar othir oaMi, Me Ballroada,
Cut. DIB. t 141.]
OoifSTiroTionAi. Law ^s297-~Dub Pro-
oua or Law — RxGULaiiOK or T&ais
SEiTiaB— OoinTBOi.Tio)T.
2. Orders of the Missiidppl Railroad
CommlaBion, made In October, iei4, requir-
ing an Interstate railway carrier to restore
to sorriee six pasBeneer trains, — two each
way daily between Meridian and Waynes-
boro, a town 62 miles to the south, and one
train each way daily between Meridian and
Okolona, a town 127 mllea to the north, —
all in tjia state of Mississippi, could sot
be enforced without taking UkS property of
the railway company without due process
of law, contrary to l^ 8. Const 14th Amend.,
where the company waa operating before
the business acf>resrion Incident to the
European war on an extremely narrow
margin of profit, and, without being able
to meet the growing deficit caused by Uie
■hrinka^ of business, hod resorted to rigid
economies of every sort before it had die-
continued these elx trains, the continu^
operation of which would hsTe involved a
loss of 910,000 a month, and where the
three daily trains to the north of Meridiai
which still remained in service could not
be said to be inadequate to the needi of the
comparatively small populatlmi to b«
served, whatever may M said of the serv-
ice to the south, wiui but two trains each
way In twenty-four hours, the orders of
the Commisaion having been intended to b«^
In effect, an order for the restoration of the
six trains.
[Bd. Kota.— For other eases, sas OonsUtntlana]
law. Cent. DU. H Oi. *»-}
[No. 2M.]
APPEAL from the District Court of the
United States for the Southern Dis-
trict of Mtsaiosippi to review a decree en-
joining the enforcement of orders of the
State Railroad Commission requiring a rail-
way carrier to restore certain passenger
tralna to service. AiBrmed.
Tie facts are stated Is the opinion.
Oar. Tkuc,
■ and George
Messrs. James N. Flowec
H. Ethrldgs for appellants.
Messrs. S. R. Prlno» and Oaxl Fox for
appellee. ^
■ Mr. Justice OUrke deUvered the c^bdoB?
of the court:
This is a direst appeal from an order irf
the district eoart lot the southern diatrict
of HlBSisaippi, three judges sitting, grant-
ing an iaterloentory Injunction restraining
the Uiasissippi Railroad CommissiMi and
the attorney general of Ihat state from an-
fordng six •qtarata orders entered by the
Commlaaion on one citatitw In one cass one
October 7, 1814, requiring the appellee toS
■restore to service six passenger trains, — *
two each way daily between Meridian and
Waynesboro, a town 62 miles to the south,
and ons train esch way dally between Merid-
ian and Okolona, a town 127 miles to the
north, — all in the state of Mississippi. Ha
trains between Meridian and Okolona whlA
were dlsoontinued were interstate trains}
the others were local to the state.
The appellee averred several grounds for
the Injunction prayed for, but the coneln-
sion which wa have reached calla apon us
to consider only one of them, via.:
That the dapression of bosinaaa incident
to the Eunqwan war had so reduced the
income of the railroad company that, at
the time the order was entered, it was leaa
than its current expense* ; that a large loss
would be incurred in panting each of Iha
six trains; that without these trains there
remained reasonably adequate service, hav-
ing regard to the population of the terri-
tory involved, and that the general financial
condition of the company waa such that the
order, if enforced, would deprive the com-
pany of its pr^erty without due proceaa of
law and of the equal protection of the laws,
in violatirai of the 14th Amendment to the
CongUtution of the United States.
The principles of law applicable to the de-
ciaion of suclk a ease aa this record presents
are few, and they have become so settled
and so familiar by r^eated decisions of
this court that extended diseussiou <rf them
would be superfluous. They are these :
A state may regulate the conduct of rail-
ways within its borders, either directly or
through a body charged with the duty and
invested with powers requisite to accom-
plish such regulation. Mississippi R. Com-
mission T. lUinois C. R. Co. 203 U. 8. 33S,
61 L. ed. 209, 27 Sup. Ct. Hep. 90; Prentia
r. Atlantic Coast Line R. Co. 211 U. a
210, 63 L. ad. 160, 2B Sup. Ct. Rep. ST;
Louisrllls A N. R. Co. t. Garrett, 231 U.
S. 298, B8 L. ed. 229, 34 Sup. Ct. B^. 43.
Under this power of regulation a state
may require carriers to provide ressouaUa
«=3FDr othw UHS ■•• luna taplc « KBT-NUHBBR Is all Kcr-NumtMrsd Digests ft Iiidei)|^ ' *
iBie.
MISSISSIPPI BAILBOAD OOMMISBION t, UOBILB & 0. B. 00.
60S
KoA adequate faeUitlaa to mtt* aot only
tka local necBHitlM, bnt the local ocnTnl-
■■ae, ol the communltiM to whidi ttwf are
dlraotly tribntarr. Lake Shora ft U. 6. B.
Co. T. Obio, 173 U. 8. 286, 43 L. ad. 702,
19 Sup. Ct. Rep. 466; Cleveland, C. C. ft Bt.
L. B. Co. r. Illinoia, 177 U. S. 614, 44 L.
ad. 868, 20 Sup. Ct. Rep. TS2; Atlantic
Coaat Line R. Co. y. Nortli Carolina Corp.
Oommiaaioii, EM U. 8. 1, SI L. ed. 988,
27 Sup. Ct. Rep. 686; Mleaovrl P. B.
Co. T. EanMB, 210 U. 8. E62, 64 L. ad.
A7t, 30 Sup. Ct. Rep. 830; Chicago, B. ft
Q. R. Co. V. Railroad CommiMion, 237 U.
8. 220, 60 L. ed. 926, F.U.R.I91SC, 309,
K Sup. Ct Rep. 660; and aoah regulation
may extend in a proper case to requiring
tlie running of trains In additon to those
provided by the carrier, eren where thli may
iUTolve some pecuniary loaa. Atlantic Coaat
Line R. Co. t. Xorth Carolina Corp. Com-
mission, 206 U. S. 1, 61 L. ed. 983, 27 Sup.
Ct. Rep. 686; and Mlaaourl P. R. Co. t.
Kansas, 216 U. S. 262, 64 L. ad. 472, 80
6np. Ct. Rep. 330.
But, while the acope of this power of
regulation over caniars is very great and
ctHnprehenaive, the pr<^erty which Is in-
▼eated in the railways of the eountry is
nererthelees under tiie protection ot the
fundamental guarantiee of the ConsUtn-
tion and is entitled to aa full protection of
the law as any other private property de-
Toted to a public use, and it cannot be talcen
from ita owners without just compenn-
tion, OT without due proocas ol law. Wia-
ooniin, M. ft P. R. Co. v. Jaeobson, 17B U.
8. 287, 46 L. ed. 104, 21 Sup. Ct. Rep. 110;
Atlantis Coast Line R. Co. t. North Caro-
lina Corp. Commission, supra; Northern P.
S. Co. V. North DokoU, 236 U. S. 6B6, S9
L. ed. 736, L.R.A.— , — , P.U.R.1916C, 277,
35 Eup. Ct. Rep. 429, Ann. Caa. 1916A. 1;
Chicago, U. ft St P. R. Co. v. Wiaoonsln,
«SS U. S. 491, 59 L. ed. 1423, L.B.A.1916A,
1133, P.U.R.ieiGD, 700, 36 Sup. Ct Bap.
869.
Tlie power of regulation, U It is exsrelaed
fat such an arbitrary or unreasonable man-
ner as to prevent the company from obtain-
ing a fair return upon the property inveeted
In the public Mrvfce, paaoes beyond lawful
bounds and is void, becauae repugnant to
^the due process of law provlaion of the I4th
9 Amendment to the Constitution of the Unit-
■ ad States. Atlantic Coast Line R. Co.*t.
North Carolina Corp. Commission, anpra;
Missouri F. R. Co. v. Nebraska, 217 U. S.
lee, 64 L. ed. 727, SO Sup. Ct R^. 461,
18 Ann. Caa. 089; Mlesouri P. R. Co. v.
Tucker, 230 U. S. 340, 67 L. ed. IGOT, SS
Bap. Ct Rep, 961; Northern P. B. Cow v,
Nortli Dakota, 236 U. 8. SSS, 69 L. ad. 736,
L.IUL— , —, F.U.R.1916C, 87T, K Sup. OL
Rep. 420, Ann. Cos. 1916A, 1.
Whether a atatuto enacted by the legW
lature of a state, or an ordw passed by a
railroad eonunission, exceeds the bounds
which the law thua lete to such authority,
is a queatlmi ol law arising on the facta d
•aeh caae (Mississippi R. Commission t.
niinois C. R. Co. 203 U. 8. 336, SI L. ed.
209, £7 8np. Ct Rep. 90), and the appro-
priitte remedy for determining that quea-
tion is a bill In equity such as waa filed in
this case to enjoin lU enforcement (Ibid.;
Chicago, M. ft St P. R. Co. v. Wisconsin,
238 U. 8. 491, 69 L. ed. 1423, L.R.A.1916A,
1133, P.UJL1916D, 706, 36 Sup. Ct Rep.
869).
With these principles in mind we pass to
a consideration of the question of law
which ths facte of thia particular eaas pre-
sent for our decision.
The ease was heard on bill, answer, and
teatimcHiy which are all before us, and ths
facta appearing may ha inmmarized aa fol-
Ths Mobile ft Ohio Railroad Company b
an intorstate carrier operating a line of
railway from Mobile, Alabama, to St. Louia,
Missouri. This evidence is uncontradicted;
that the company is not overcapitAlized,
that It has been wisely and economically
managed, and that, nevertheless, its net
earnings above the eost of operation, fixed
eharges, and taxes, and before making any
allowance for betterments or for dividends,
were only $86,000 for the year ending June
SO, 1014. It never paid a greater dividend
than 0 per cent, and thia for only a few
years in Its history; in the month ot July,
1914, on its entire system the company
earned a surplus over flzed chargea and
taxes of 111,000; In the month of August
it showed a deficit ol |S6,641, and in 8ep-
tambar tha deflolt baeams |113,eZ7,— thia
without making any deduction for batter* n
menu or Improvements or dividends. 3
**11ia tralna ordered restored were numbered*
7. 8, 9, 10, 11, and 12, and they were aU
put Into operation by the defendant railroad
company as experiments from time to time
within a few years prior to 1914 without
any order of the Commiseion, In the hope ot
building up passenger bniineea; but the rec-
ord shows that not one of them at any time
paid the cost of iqieratlon.
The territory under consideration la
■parsely settled and tha chief trallic of the
company is lumber and cotton, and the r^
suiting general freight due to a marketing
of these commoditlea. The depression la
these staples was very grsst prior to and
at the time the case was heard.
Tha uncontradicted testimony of the audl-
t«r of tha eompany shows that tke paaaaogst
A^^OOglC
ST SUFSEUE COUBT REPORTER.
Oat. Tbm,
nvenns p« trftin mlU, of tti« trftina ordcrad
natorcd, fM' tlw Uma Bontlu naxt before
the paMiDg of the order, wki: for July, 85
eents; for Augmt, 64 Bante; uid for Sap-
tember, 66 ceoU; Uist the i^TeragB puien-
ger revenue per train mile of tratnB 7, B,
D, and 10 from October let to October 6th
(the next day but one before the order wa«
pttBsed), w&a 36 cents, and that of trsina
11 and 12 for the same elx days was 26
The andltor also teitifies that as
approximation as could be arrived at showed
the total revenue of the oompanj derived
from pauenger trafflo for tiie two months
ending August 31, 1914, waa $331,102.25,
and that the total expansae and taxes al-
lotted to this service amounted to $339,-
247.60, making the pawenger revenne per
train mile .9708, and that the axpenses and
taxes per train mile amounted to .9944,
a net loss per pauenger train mile of .01
Tlie secretaiy of the company testified
that on September SO, 1914, the company
had a working balanoe of $74,836.79, and
that there were unpaid vouchers amounting
to $1,027,319, KHne of which dated aa tar
^back as November of the preceding year[
• that these vouchers did not represent any
• fixed charges or any interest, and that'tha
normal amount of approved unpaid vouch-
ors was between $400,000 and $500,000.
The eridoice further shows that. In order
to avoid Insolvency, the company had re-
duced BZpensn in many ways. Including
even the eipenae of repaira to locomotlvM
and cars of erery deeerlption; that the
president and vie* president had voluntarily
submitted to a reduetioa 4^ 20 per coit in
their aalarlea, and that tlta aalarlea of all
the other officers bad been reduced mi a
riiding scale up to 10 per cent
The falting off in eaminga for Hie first
seventeen days In October, as compared with
the preceding year, was $1S6,74S, or ap-
proximately $10,000 a day, and tlie asti'
mated saving to the company of taking off
of the six traina Involved in this contro-
versy waa $10,000 a month.
The company introduced In sridenoe six-
ty-one affidavits from what is claimed to
be substantially all of the Important busi-
ness men in the towns which would be most
affected kj the taking off of the trains, who
agree In saying, that while these trains were
a convenloice to the traveling public, that
owing to bosiueaa conditions thai prevail-
ing there was not much travel and would
not be until the trade depression was over;
that the taking off of the trains would not
materially Injure the business of the vari-
ous towns In which they lived, and that if
the trains were loMng money and the total i
fciliiiM af the eonpany wms not profitable^ I
in their judgment the oompsay should ba
allowed to dlsoontlnne them.
The toritorj between Meridian Mid
Waynesboro is not a productive agrieul-
tural aeetion, and in the S2 miles between
the two towns there are five "fair sised
towns" and five small villages, which, ac-
cording to the 1910 census, had a populatitm
of only S,4Sfl, and there la no evidence that
the populatltm had Increased up to the Mm*
or trial.
The sarvlee which remained between Iferl-S
dlan and* Waynesboro to the south, after?
these trains were taken off, conaUted of
two trains each wi^ each twenty-four hours,
and between Uerldlan and Okolona there
remained three traina each way every twoi-
ty-four hours.
All ot the trains which were continued
ware throuf^ Interstate trains, which, while
the local traina were being, run, madf ver;
few stops, but when the local trains were
taken off, each of these trains made all the
atopa between Waynesboro, Meridian, and
Okolona, with the result that, whereas for-
mo'ly train No. 4, for example, made seven
stops between Meridian and Okolons, un-
der the new schedule it made twenty-two.
The evidence <« which the Railroad Cora-
mlaatwi acted is summarised in the record
and It li impressively meager In extant and
Inadequate in character. It conabts of tha
testimony of two men, wholly without
qualifying training or experience, as to tha
coat of operating sueh trains, and of a num-
ber of men as to tlia Inconvenience whidi
would tie caused by the taking off of tha
trains, chiefly to oommercial travelera living
in Meridian, de^rlng to visit the email vil-
lagea and hamlets on tha lin& The testi-
mony of the one member of the Ctmunission
who appeared as a witness shows that the
Teascmableneas of tiie order was made tv
turn on what tha Commission estimatad was
the "out^f-pocket" coat, the immediate cash
outlay in wages and fuel, of (4)eratlng the
six trains. But this cannot be accepted as
a proper basis for determining su^ coat
Northern P. R. Co. v. North Dakota. 23«
U. S. 686, 694, 696, S9 L. ed. 736, 741, 742,
L.ILA-— , —, P.ir.R.lB16C, 277. 36 Sup. CU
Rap. 42S, Ann. Cms. 1916A, 1.
llius summarised this arldence shows
tliat the plaintiff railroad company, an im-
portant interstate carrier, was operating
before tha business depreaaion incident to
on a margin ao narrow that the
$86,000 of profit for the entire preceding
year would have been more than swallowed
up In nine days by the shrinkage of busi-a
of the company aa It was when thisg
controversy arose; thatj'withont being aUa*
to meet Its growing deflidt, the company
had resorted ts rigid eocaomiea of avaij
,A_.OOglC
Ult.
immD STATES EX BEL. LODISIAHA r. BOABHAH.
MTt b«fDra It dUconUuned Hmm iIx trolna
the eontuined <q)eration of which would IwT*
InroWed & Iom of 910,000 a month; that
tha three dail; triUna each waj to the
north of Iferidian which remained after tho
taking off of th« trains which gave riM to
the contfovsrif eanitot be laid to be Inade-
quate to the needa ot tiie comparatively
■mall population to be eerred, and that
while the wrrice to the aoath of Meridian
— with but two traint each way in tweniy-
four hours, and theae nmniiig at houre ia-
eonvenient for the transaction of business
— cannot be thought a liberal aerrlce, yet
these orders were intended by the CommU-
■ion to bo in effect one order for the rea-
toration of the six trains; they were thiu
treated in the court below and mutt be so
treated here. Looking to the extent and
produetiT^eM of the business of the com-
pany u a whol^ the small traveling popu-
lation to be Mrred, the character and Urge
<spenM of the aerrice required by thi* or-
der, and to the seriaue financial conditions
eoofronting the carrier, with the public lots
and inconTcaienee wbicb its financial failure
would entail, we fully agree with the dia-
triet court in concluding that tha order of
the Comnisaioii at the time and under the
elreumstances wham it was issued was arbi-
teary and unreasonable and In eicesB of
tiie lawful powwa at iha Commission, and
that if enforced it would i«au]t in sueh de-
priving of the railroad eompauy of its prop-
erty without due process of law as la for-
bidden by the 14Uk Amendment to the
Constitution of the United Btates. The
«der of the District Court granting the In-
junction must be affirmed.
<M D. B. tn)
tFNITED STATES OF AMERICA EX REL.
THE STATE OF LOmSIANA, PeU-
tioner,
r.
HON. ALECK BOABMAN, i Judge United
States District Court, Weatem District
of Louisiana.
JuDOifXNT ^b828(EQ— Bu JumoATA— Ti-
TLc or State.
]. A decision of the highest state eourt
that ^e fltate wag witiiout such title, legal
or beneficial, as would enable it to maintain
a suit to set aside as fraudulent a sale and
eouTeyance by a levee board of eomntission-
•rs, prevents the state from intervening in
ft anbeequent suit brought by the boaro to
•at aside the sale and conv^ance of the
■ama lands, and from appealing from a de-
I DeaUi of Hon. Aleck Boarman suggested,
•Md Ban. Oeorge Whitfield Jack, bis suc-
•aaaor in office, substituted Iday S, 1917, as
tha party respondent her^n.
OOITBTB *=>S56 — APPEA1>-Ilt 1
COUSTB—WHO Mat MAINTAIIf— STKAltOXB
TO BccoKD— EkixCT or State Staiutxs.
2. The rule that no one not a party or
ft privy to the record may s^peal from ft
decree in a suit in equity in the Federal
court* is not affected by Uia local practice,
under Ia. Code Prac. art 671, to allow
appeals by strangers to the record "who
may allege that they hare bean aggrieved
by the judgment."
ed. Note. — For other caseL see Courts, OtnL
|tST.]
Levzeb ^3ll— Levi Boasd — Impuxd ftm-
PEAL or Adtbobitt.
S. The authority granted to the board
of commissioners of the Tentas Levee Dia-
trlct by La. AcU 1886, No. 69, ) 3, to sua
to set aside a sale and conveyance of land
made by the board, was not withdrawn and
del^ated through the governor of the stata
to £e attorney general by the Act of Au'
gust 19, 1910, tnaking it the duty of tha
attorney general of tha stata, upon tha r*-
queat of the governor, to represent the state
or any political agency or subdivision there-
of in any suit involving title to any land or
real pri^erty belonging to the state or any
of its political agencies or subdivisions,
whetjiar tha tftla is vested in or appears in
the name of tha state, or in the name ri
such agencies or subdiviaiona.
IBd. Note.— fta etiier oaMs, sea Lives^ Cant.
DSTlftl
Appeal abd Debob ^>9S8 — DiBotsnon
Bixo w— luTBavEHnoR .
4. The authoritv of a eoort to mska
new parties to a suit, especially after judg-
ment or decree, rests in its sound discretion,
which, exoept for abuse, cannot be reviewed
by appeal or writ of error.
[Bd. Note.— ror otlMr oaati. aw Apjf—l end
Hrror. Cent. Dll- I KM.]
IxvEEs ^a9— lavxK Boabd— Coupboube
ADD SETILBMEIfT.
9. A levee board of commisdaners to
of the levee district, with power to lue and
be sued, and to sell, mortgage, pledge, and
otherwise dispose of lands which the stata
donated and caused to be conveyed to the
board, may bind the state by a compromise
made in good faith, of a suit brought by
the board to set aside a sale and convey-
anea made by it
SBS. Nota.-^or other oases, ■•• Levata, Cent
C. IU.1
[No. 2M.]
Argued May 8, 1917. Decided June 4, 1917.
ON WRIT of Certiorari to tha United
States Circuit Court of Appeals for the
Fifth Circuit to review the denial of ap-
plications for a mandamus and certiorari
to the judge of tlta District Court for tha
lo * KXT-MUHBHS In all Kar-NUmbared DISHti ft II
'"Coogic
ST SUFSEBOt COUBT BKFOBTKB.
Oct. lEBiEt
WesUra Dlttriet of Lotdeiuia, to allow an
appeal Ml the part of, and in behalf of,
the state of Louisiana from a decre* of
auch District Court, dismissing a suit by
a board of levee commissioners to set aside
ft sale and conveyance made by sudi board.
Affirmed.
See same caM below, 1S3 C. C. A. 487,
«7 Fed. 757.
The tacts are stated in the <9iiiton,
Ur. Harry Oamble and Ur. A. V. Coco,
Attorney General of Louisiana, for peti-
Ueaer*. Henry Benuteln and WUlard
_F. Keener for respondeot.
P 'Mr. Justice Clarke ddirered the opin-
ion of the court :
By act of its general assembly In 1B8S,
amended Is 1S88, the state of Louisiana
ereated the Tensas Basin Levee District for
the purpose of providing a ayetem of leveei
and other -works to aid In protecting the
lands within its boundaries from floods and
overflow. The act provided for the appoint-
ment of a levee board of eommissioners to
have charge of the afToirs of the district,
and constituted this board a corporation,
with power to aue and be sued, and to sell,
mortgage, pledge, and otherwise dlspoae of
lands which the atate donated and eanaad
to be conveyed to the board.
In 1899 the levee board sold to the Tensas
Delta I«nd Company, Limited, a large
acreage of the land thtta acquired, and ex-
ecuted conveyances for it.
Eleven years later, in 1000, suit was
brought by the attorney gmeral of Loniei'
ana, in the name of the state, claiming that
the aale of 1898 was fraudulent and void,
and praying that it should be set aside and
^ that the state should be decreed to be the
a owner of the property.
* *8ueh proceedings were had In the case
thai the supreme court of Louisiana held
(State V. Tensas Delta Land Co. IZB La.
60, 62 So. 218) that the only proper party
plaintiff in such a suit waa Uie levee board,
and that, the state being without authority
to maiDtain it, the ease must be dismissed.
After the diBmiesal of the suit of the
state, the levee board brought suit against
the Tensas Basin Land Company, Limited,
in a district court of Louisiana, upon the
same cause of action stated in the prior
petition, which case was removed to th*
United States district court tor the appro-
priate district. The petition was there
given the form of a bill In equity, and, as
amended, a demurrer to it by the defendant
wae sustained. On appeal thii decision was
reversed and the case -was remanded tor
further proceedings, but before the time al-
lowed fot answer hod expired, the defend-
ant appeared and hfomMd the dlatriet
court that 1100,000 had ben paid la aettle>
ment of the ease agreed upon between tlM
parties, and moved the court to dismiss tha
suit. This moUoB was filed on July 22,
1913, and a rule woe forthwith loaned to
the plaintiff to show causa on the flrat day
ot the next term of the court (October
20t)i) why the motion should not be grant-
ed, ^e return of service of thii rale aiiowa
personal service on the attorney general «•
solicitor tor the levee board, and aeknowl-
edgment of service by tlie board Itself.
On Anguot 6 the board, appearing by its
president, answered the rule to show cause,
averring that it had "apprised it* attorney
of record" (the attorney general of tbs
state) "of the said settlement," and, ad-
mitting the allegations ot the motion,
prayed that the euit be forthwith diamiseed
at Its coat.
The attorney gmeral for the states not
satisfied with the settlement, on October 6Ui
flled a motion, which he signed "R. 0, Plea^
ant. Attorney Oenersbl, State of Lonlsiana,a
and Attorney of Becord tor Complainant.* $
In this "quite anomalous paper he averred*
somewhat rhetorically that the settlement
made by the levee board tor which he was
attorn^, was a "condtmlng and eompro-
miaing" of a fraud to which the court
should not assent, that he was acting la
the ease under authority of an act ot the
general asieml>Iy ot the atate and bj order
of the governor, to whcmi alone he wm r»
■ponsible, and "that tha complainant could
not compromise this suit, nor dismlaa It
without the govemor'a consent." He prayed
that the motion to dismiss be dmied, tha
agreement of settlement disregarded, and
that the case be set down tor early trial.
The motion to dlsmlM came on for hear-
ing on October 20th, but the court deterred
consideration ot it until the next day, and
caused a tel^ram to be sent to the attorney
general In order that ha mi(^t have full
opportunity to be present and be heard, Imt
he did not appear in person or by repre-
sentative, and thereupon the court he«rd
the evidence and "ordered, adjudged, and
decreed that said O ' ~ ""
and the same is recognized by this court
as having the effect ot the thing adjudged
and aa settling all the iasuea in this case,"
and dismissed the suit.
It cannot escape notice that Uiere la no
allegation contained In any paper filed by
the attorney general that the levee board,
in compromising the controversy and suit,
did not act in perfect good faith, nw la
there any challenge ot the character or Mm>
potency ot the memlwrs ot the board.
After this entry of diamisBal no farther
aetion was taken by tha attorasy gmsntl
A^^OO^IC
IBlf.
UKITBO BTATB8 KX KEL. LOUISIANA t. BQABMAN.
«0?
ntB M «• Mb 4ftr rf tlM fonowlBf Apifl,
wkn ha praaauUd to tha dbtriet eonrt m
■^titiwi of tke United StfttM of Amerin
•a tha relation ol the atata of LouiaiMUi,"
jaajiag that tha atata b« peniiftt«cl to ia-
tarreBe and appeal from tba Jadgmeut rati-
ffb\g the compromiae and dlamlaaing the
?The distrlot eowt denied this petition
far leave tolBtervana and appeal, and then-
apon the attomajr gtattai filed In the elr-
mlt eoort of appeals for the fifth elrcutt a
"^titlon for vrita »t mandamua and ear-
Uorari," In whidi he prajed that court to
order that the etato of Louiaiana be allowad
to Interrcna bi the dlitrlet eonrt and to
appeal the ease, and that It order that a
traauript of all reeorda be aent np to It
for rariew.
^le drenlt eonrt of ^ipeali denied tbU
petition, aadgning two reaaoni for ita ao-
(1) Beeanae tbe anpreme oonrt of Lonia-
lana, on full eoneideratJon, bad decided
that the atate me without real or bene-
ficial interest In the lands in controvenr,
which deciaion must be controlling in that
aourt; and
(2) Because the state was not a parfy to
the record fn the diatrict courts "and one
^10 li not a party to a record and judg-
ment la not entitled to an appeal there-
Thia deciaion ia now here for reriew em
eertiorarl.
This plain statement of the hlatorj of
ttia litigation ao argues agalnat the claims
of the petiticoier as to make them in ap-
pearance, at leaat, nnsnbstantial to the
yoint of being trlToloni.
the supreme court of Louisiana, eonsid-
•ring the statutes of its own state, held, in
the case In which the state sought to set
•side for fraud the same sale of the same
lauds involved in this litigation (126 La.
Cft, 02 So. 218), that the "legislature vested
the absolate title t« the lands in eontro-
versj In the board of commlaBionera ol the
Tensas Levee Distoict, with full power to
sell the same on such terme as the board
might deem proper [and], also vested in
aaid board full power to sue and be sued,
and to stand in Judgment in all matters
relating to their geition and tmst." "Host
assuredly," also siys the court, "the leglS'
latuTe has devested the state absolutely of
H all beneficial Interest in laid lands, and
^ transferred same to the said board of levee
* eonunissioners." And as It "has vested the
power to sue and be sued in the board ot
aommiesloners of tbe Tensas Levee Diatrict,
and has vestsd no such co-ordinate power
In the governor or attorney general, we are
of tha opinion that the institution of this
suit i% tbe name of the state ia onanthor-
ised."
Thia deciaion determining tbe effect of tha
state statntea, where no claim of Federal
right was involved, la accepted as conclu-
sive by this court, and unices It haa been
modified by statute (there haa been no
modifying deciaion) tbe application of tba
state to Intarvene and to appeal was pro^
arly doiled.
To the seenilngly insurmountable barrlor
to the claims of the petitioner presented bj
this supreme court decision we must add
that the atate was not at any time a party
to this record, and that its flret application
for leave to intervene and to appeal was
long after the tenn at which the decree ot
dismissal was rendered, and within a few
days of the expiration of tha time within
which even "a real party in intercat" would
have been allowed an ^>peaL
With exeeptlona not even remotely appli-
cable to a caae auch aa we have here it haa
long been the law, as aettled by tiila court,
that "no person can bring a writ of error
(an appeal ia not different) to reveraa k
judgment who Is not a party or privy ta
the record" (Bayard v. Lombard, 0 How.
MO. 661, IS L. ed. 2«, 2S4) ; and in Ra
Leaf Tobacco Board of Trade, £22 U. 8.
67S, GO L. ed. S23, 32 Sup. CL Eep. S3S,
it was announced, in a per curiam opinion,
as a subject no longer open to diseussica,
that "one not a party to a record and judg-
ment la not entitled to appeal therefrom,"
and that a refuaal after decree to permit
new parties to a record cannot be reviewed
by this court directly on appeal, or Indi-
rectly, by writ of maodamui, under eircum-
etancea auch aa were tbere and are here
preeented.
Two statutea of Louisiana are relied upoa
by oounsel for petitioner to avoid tha ob-
vious and seemingly conclusive result of
theee decl^ons by tbia court and by tha n
Bupmne court of Louisiana. §
'The first of theae aUtutea ia article 6T1*
of tha Code of Practice ot Louisiana, which
reads: "The right of appeal ia given not
only to thoea who are parties to a eauaa
In which a Judgment haa been rendered
againat them, but also to third persona not
parties to said snit, when such third pereons
allege that they have been aggrieved by the
judgment."
It is urged in argument that in anlta tn
the United Statea courts which originate in
Louisiana, thia statute permita an appeal
by strangers to the record "who may allege
that they have been aggrieved by tha judg-
ment," and the decision of the aupreme
court of Louisiana in 126 Li. C9, 62 Sa
216, aupra, holding that the state cannot
"be aggrieved" by this judgment beeausa it
,A_^OOglC
ST SDPKBUE OOUBT REPORTEB,
Oar. Txuc,
b withoDt beneficial Intereat in the landi
which are the subject-matter of tliia litlga-
Uon, and is without authoritj to institute
ft suit for their recover;, ia dispoaed ol bj
laying that it ia tbe practice in Louiaiana
courts to allow appeal* hj atrangera to the
record upon mere atl^fation of intereat,
leaving the vallditf of such allegation to be
•samined by the appellate court
Thia claim cannot be aerloutly entertained
In the face of tfaa long tima perfectly e«t-
tled law that equity inita in Federal court*
and the appellata procedure in them are
regulated ezdueively by Federal atatutea
and decisions, unaffected by ctatutea of the
atates. Textbook citatlona will anffice:
Street, Fed. Eq. Pr. Jg ST and 98; Simklna,
Fed. Eq. Suit, chap. 1.
The other statute relied upon by the peti-
tioner was enacted by the general aaaembly
of Louisiana on August 19, 1910, after the
deeiaion by the lupTema court referred to,
and reads;
'Be it enacted by the general assembly of
the state of Louisiana, that it ia herel^
made the duty of the attorney general ol
^ the state, upon the request ol the governor,
J to represant the itata or any political
• agency or subdivision thereof, in any suit
in any court involving title to any land or
real property belonging to the state of
Ijouisiana or any of its political agencies
or subdlviiions, whether the title to said
land or real property ia vested in or ap-
peara in the name of the state, or In the
name of any of its political ageneies or sub-
divisions."
^e elaim made hy tiie attorn^ general
for the state now is that this act "withdrew
the authority theretofore granted to the
levee board by J S of the Act of IBBO to
ane in auch cases ai thia, with all of the
rights appuTtenant to the right to sue, and
del^ated it, through the governor, to the
attorney general."
Thia la a laige repealing effect by impli-
cation to be asserted for a statute so word-
ad and apparently so simple, and that such
meaning was not given to it by the present
Attorney general's predecessor in olOce, who
was charged with the execution of the stat-
Bte at the time this litigation was com-
menced and almost immediately after Its
enactment, is clear from thaea facta appear-
ing of record:
The suit by the leree board aa pstiUimer
was commenced after this Act of August
19, 191D, was passed, and yet the petition,
signed by the attorney general aa one of
the solicitors of the board, alleges that it
waa commenced by virtue of a resolution
adopted by the board on the HOi day of
the preceding July (thns retdting an au-
thority adopted pursuant to power which
it is now claimed had been withdrawn from
the board). The petition also recites that
tlie attorney general (prcdeeeesor of the
present incumbent) appears in the suit pur-
suant to the authority and direction of the
governor, "to rQ)reaent said board of levee
eommissianera ... in the proseeutioa
of said suit;" that the board is a corpora-
tion with power to sne and be sued, to take
title to and to aall landa under Uie sams
laws which luid been conatrued by the
Louisiana snpreme court (128 La. 69, fig^
So. 216), and it prays for a decree recog-^
nizing your petitioner (the levee board) *ta*
be the owner of all of said lands ao fraudu-
lently and Ul^ally eonveyed." The att<^
ney general, with another, signs the peti-
tion aa attorney "of the board of levea
commiaaionera of the Tensaa Basin Levea
District," and when ths casa waa removed
to the United States dUtrict court the peti-
tion was recast into a bill in equity in
which, after repeating the aUegations and
prayer of the original bill, the thm attor-
ney general adds that the levee board ha%
"in eomplisnee with the law as laid dowB
by the supreme court of the state of Loni-
slana in the opinion and judgment rendered
by it a* aforesaid" <1E6 Ia. 80, 62 So. £18),
"lirought thia suit, aa It understands It ia
Its duty to do."
Even in hii proteat to the district eotut
against the aettlement, the attorney general
speared "as attorn^ of record for the
complainant," the levee board, and It waa
long after term, and not until six montha,
lacking sixteen daya, after the decree of tha
district court ^proving the settlement had
been entered, that he left off the daraeter
of aolieitor for the lioard, and, appearing
for the stat^ petitioned for leave for it to
intervene and appeal from the decision af-
firming the settlement approved by his far-
mer client. Even in this petition no claln
is made that the board had been deprived
of Ita powers by ths Act of August ID, IDIO,
or that it had acted otherwise than in tho
utmost good faith ia maUng tbs compr^
nie first time that this astonishing as-
sertiou of a repeal l:^ implieatim by tba
Act of August 10, 1910, appears in the ra^
ord, BO far aa wa can discover, is in the
brief filed by a third attorney general •■
AprU 30, 191T.
This summary of tlie proceedings 1b Iha
ease out of which the petition we are ooa-
sidering grew shows that the predecessor of
the present attorney general, wlto waa la
office when the act of 1910 was pawaed, ■■'b
also the attorney general who aoeeeeded|
him, both eontoided, until ■ nearty sK*
months after the entry of tha setUemcat
decree^ that the snpmna eonrt had nettled
,A_.OOglC
lOIS.
WAU. T. PAHKOT BILVEB * a 00.
M th» Uw of the ease thftt tbe itate
wtttont title or beneficial Interest which
would enable it to maintain a toH to aet
aiid* tite Mie alleged to ba fraudulent;
that tka proper plaintiff In nudi a eaae wa*
the levee board to wlileh the state had com-
■iltted the title, euitody, and power of die-
pealtion of tiie lands in eontroTera;, and
also, afiparentlj, that the purpoee of the
Ant of Aiigaet, I9J.0, waa aimply to author-
iae the attomer general, on the requeat of
ttia governor, to take ebarga (In thli case
with another aolicitor) of a anit to be In-
ftltuted bf the levee board, and thereby to
place hie profeaaional learning and the
weight of bis official character at the eerv-
lea of this plaintiff, an "agenej or aubdi-
Tlaion" of the itate. Both attorncTa gen-
aral aaaumed that the powera of the atate
and of the levee board over the aubject-
matter continued as the supreme court had
defined them to be before the Act of An-
gnat, 1010, waa paaaed, and, aa wa have
seen, it was not until long after the entry
of the settlement decree that the eontantlon
first appeared that the act took awaj from
the levee board and gave to the state the
authority to condnot the required litigation.
ThU contemporary conatmction of the act
1^ the two law offleera of the state eharged
with acting under it la persnaaive author-
ity as to Its true meaning, and, upon full
eonsidcration, we think It la the eorrect
interpretation of It
To this we add that, except In a class of
easea to which this ease does not belong,
the authority of a court to make new par-
ties to a suit, capecially after Judgment or
decree, rests In ita aound discretion, which,
•Kcept for abuse, cannot be reviewed upon
an appeal or writ of error. No claim is
nade of abuse of discretion by the district
court, and plainly, if made, it would be
I, groundless, since the judge refusing to per-
^ mlt the state to Intervene had before him
• at'the time of his refusal the decision of
Its own auprems court that the state was
without title, l^al or beneficial, qualifying
U to litigate the queatlona involved.
In the original hill the not unoomnion
allegation of fraud Is made, which is denied
In the answer. It waa entirely proper for
the parties to such a litigation, in good
faith "balancing the hope of gaining with
the danger of losing," to compromise the
eaae and make an end of the controveray,
and, aa we have said. It la not claimed any-
where in the record that the membere of
the levee board, which settled the suit, were
not men of character and probity, or that
they did not act in perfect good faith in
concluding the settlement. To these men
the state law committed tiie care of the in-
terests of the inhabitants of the district.
and, within the hounds ri their anthoritf,
honestly exercised, tlteir aetima waa esKoln-
slve upon the state.
It results that the decree of the Olnalt
Court of Appeals must be affirmed.
(Mn.tt.4tT)
WHJJAH E. WALL and Etta Voaa, Izeea.
tiiz, etc, Appts.
OonsTiTUTionu; Law tru 13Ca— Bmoppki.
— AnuiOHQ IiTooifBisniiT Posmon —
BiaHra or Miifonm BrooKnoLDKX*.
Minority stoekholdera disssntlng to ft
tlon of their stock, oonformably to Mont.
Rev. Codes, || 4409-4412, therein walv*
their right to challenge the validl^, under
U. S. Const 14th Amwd., of the provisions
of thoss statutes, under whldi aniji a Mie
may be made upon a favorable vote of not
leas than two thirds of the outstanding capi-
tal stock, dissenting stockholders to accept
an award ol the vaios of their stock aa of
the dat« of sale.
United 6Utes for the Dlatrlot of Mm-
tana to review a decree in favor of defend-
ants in a suit by minority stockholders to
set aside an executed sale of all the proparlj
and assets of the corporation. Affirmed.
Bee same case below, 216 Fed. 242.
The facts are stated In the q>inlon.
Messrs. Francis P. Garland and Aaa
V. French for appellanta.
Messrs. Ij. O. Brans and John A. Gftr-
ver for appellees. ^
Hr. Justice Clark* ddivered the i^inion*
of the court:
The appellants, as owners of 1,210 of the
»,860 shares of the capital stock of the
Parrot Silver & Copper Company, a corpora-
tion organlxed under the laws of Montana,
filed their bill in the United Statea district
court for tiie district of Montana, seeking to
avoid an executed sale of all the property
and assets sf that company, made on May
31, 1910, to the Anaconda Copper Mining
Company, the consideration being a stlpn-
lated number of shares of the vendee com-
pany.
The claim of the appellants Is that in
18S9 certain persons acquired control of a
majority of the sharea of the capital stodc
IS topic A KBT-NUUBBS In all Kar-
-.gic
<10
ST KIPBEMB COURT RBPOBTBB.
Oor. Tmi,
of the FuTot Compaay witli the fnudulent
porpoM of lo nuuwging ita affaira m to
deplete uid depreciate ita MWte "and then
to aoquire tham" for lau tbun tlwlr real
value, Uiercbj depriviiig tlia minority itock-
holden of "Qia jnat and f^ Talua of their
right and interoat" aa ahareholdera, or "of
kn appnJjMl of the teIus of their atodc on
kny adequate baaia of ralue."
It la further claimed that thia fraudu-
Ittit achemo found eonaummation in the aale
to the Anaconda Company, which waa made
ander authorify of SS 4409-4418 et the
9 Beriaed Codea of Montana.
• * Seotiona 4409 proridea that a aalt may be
made of all the saaeta of any mining
•orporation when at leait two thirds of the
whole numbtr of aharee of the capital itock
outatanding ahall vote In favor of making
inch a lale at a meeting called and notified
■a provided in the section. Such a aale o'
the "whole proper^ of the ctHporation'
worka a diaaolutitm of the eorporatloi
tinder | 4410, and Ita afTaiia muat b
woond up. Section 4411 provldea that ajiy
atookholder who ahall not have voted for or
Rnthorlzed anch aale may, within twenty
daya from the date of the atoekholders'
meeting authorizing It, give written notice
that he doea not asBent thereto, and demand
payment of the value of hia stock, and ten
daya after the aervice of auch notice he
must, or the corporaUon may, apply to a
designated court and have the value of the
Stock (Ixed and appraised. Upon such ap-
plication the eonrt shall appoint three ap-
praisers who shall take evidence in relation
to and ahall find the value of the atock of
meh dissenting stockholder "at the time of
hla disBent." To any stockholder not satis-
fled with the award of the appraisers the
next section, 4412, allows an appeal to the
district court, where the value of the stock
ahall be reassessed by a jury in the same
Inaoner as in "appeals from the assessments
of commiBsioncrs in oondemnation proceed-
ings provided by law." The judgment on
anch an award must be entered against both
the vendor and the vendee corporation, and
by the statute it ia made a lien auperior to
the rights of tiie vendee upon all of the real
property sold.
After the sale to the Anaconda Company
complained of, the appellants served a notice
of dissent on the Parrot corporation and
ennmenced a statutory preceedlng for the
appraisal of their stock, which has not been
thought on for hearing, but is still pending.
The claim upon which the appellants come
S Into this court by direct appeal ia that the
• statutes of Montana,* referred to, are un-
constitutional because they provide for a
aale of all the prc^erty of the corporation
^an a favorabU vote of laaa than all (not
IcM than two thirds) of the shares of th«
capital stock of the corporation, and that
dissenting atookholder e must accept an
award of the valna of their stock, made as
of the date of aala. Such an award in thia
oaae, it ia claimed, would be baaed upon a
valuation of the assets of tk% utmpaoy after
they had been fraudulently depleted and
depreciated, and without its being possible
In anch a proceeding to add anything to the
value of their stodc on account of the dam-
age which the persona in control of the
defendanta by their fraudulent conduct had
done to the property ol the Parrot Com-
pany, and thereby to the valne of the ap-
pellanta' atock prior to the sale. Thia, it ia
contended, would result in taking the
property of the appellactB without just
compensation and in violation of the "due
process of law" and of the "equal protection
of the laws" clauses of the 14th Amendment
to tha CcmsUtution of the United SUtes.
This aummary of this record ahows tiiat
the claims of the bill presented to tha
district court for decision two questions,
(1) Did the defendants fraudulently
dissipate and depreciate tha assets of the
Parrot Company prior to the aale com-
plained of, to the damage of the interest of
the appcllanta aa atockholderal
(2) If the Montana statutes were givea
effect, would they so deprive the appellants
of a part of the value of their stock aa to
ofTend against the designated provisions of
the 14th Amendment to the Constitution of
the United States I
An examination of this record leads us to
fully agree with the trial court in its con-
elusion that the appellants failed utterly
to sustain their allegations that the prop*
erty of the Parrot Company was fraudu-n
lently dissipated and depreciated through j
the management td the defendanta'prior to*
the sale, or that the sale made was in any
respect fraudulent. Upon this ooncluaion
the judgment of the district court might
well be afllrmed, for the reason that wher*
fraud is charged in a bill or set up in art
answer, and is denied, the party making th«
charge will b« eonflned to that issue, and
also for the reason that where the claimed
constitutional question on which a direct
appeal to this eourt la based la pleaded
as resulting from the carrying Into effect
of a fraudulent scheme, when such chargo
of fraud falls, the asserted constitutional
question ought not to be considered.
French v. Sboemalcer, 14 Wall. 314, 20 U
ed. 85Zi £yre v. Potter, 15 How. 42, 14
L. ed. G92; Chicago, B. A Q. R. Go. t.
Babcock, 804 U. S. e8S, B93, U L. ed. 939.
I, 27 Sup. Ct. Bap. 826.
A^iOOglC
191*.
ST. LOUIS, I. M. ft S. B. CO. t. UflKmaHT.
Bat we prefer not to hftT* tho caM gtt
•IT on this seemingly teehnlckl but reftllj
acnind and Bubetantlal rule.
There remalni the cootenthn tlwt the
nt&tutes of Hontans which we haTe
epitomized, if enforced, will deprive the ep-
pellenti of their property without due
procMB of law beceuse they provide that
nie may be made of all the aaset* of the
eoTporation when authorized by not leae
than two thirds of the outstanding capital
■toek of the corponttioo, and Qiat the plain-
tiffs must accept either the payment for
their shares which thia large majority of
their associates think sufficient, or, if th^
prefer, the value in money of their stock, to
be determined by three appraisers, or, still
at the election of ^pellanta, bj a court
jury.
This record does not call upon ue
namine Into this challenge of tha validity
of these statutory proTisioaa, eimilar
thay are to those of many other state* and
«f a seemingly equitable eharaoter, for tite
reason that the appellants, by their action
In instituting a proceeding for the valuation
of their stock, pursuant to these statutes,
which is still pending, waived their tight
to assail the validity of them. Oreat Falls
Ufg. Co. V. Atty. Gen. 124 U. 8. SSI, SI L.
ed. G27, 8 Sup. Ot Rep. 631; Bleetrie Co. v.
Dow, les U. S. 489, 41 L. ed. 108B, 17 Sup.
Set Sep. 645; Fierce t. Somerset B. Co. 171
^ U. B. 041, 43 U ed. 31B, It Sup. Ot. Rap.
• «4i Leonard v. Vicksburg,»8. ft P. E. Co.
IM U. fl. 413, 422, 4S L. ed. 11D8, 1111,
£6 Sup. Ct. Hep. 750. They cannot claim
the benefit of statutes and afterwards assail
thair validity. Iliere is no sanctity in such
a elaim of conatitutimal right as prevents
ft* being waived as any other claim of right
ntay be.
The decIalMi ot Uia Distriet Court is
■Ormed.
<M V. 8. M»
OT. LOUIS, IRON MOUNTAIN, ft SOUTH-
ERN RAILWAY COMPANY, Appt.,
WILLIAM F. MoKNIOHT, J. Sam How-
land, and George W. Bellamy, Railroad
Commisilonere ot the State of Arkansaa,
Howard H. Gallup,! ^nd William J. Mat-
calf.
Oousre
Ooima
1. A TeitrtH district court could not,
fttter its decree permanently enjoining tha
1 DeatK of Howard H. Gallup, one of the
apellcee, su^ested, and the appearance of
■a. Jennie Gallup, executrix, etc., filed and
■■tared May Z, 1BI7, on motion ol couusal
far tiie appellees.
ui oruer, an-
s to damage*
m reatrainuir
IS are issued.
enforcement of rates fizad by a state for
intrastate tralDe ob an interstate railway
and reatrainlng all shl{^era and travalera
from instituting suit on account > of over-
charges had been reversed by tha Federal
Supreme Court with directions to diemisa
the bill, prevent parBooa not parties to tlia
suit from suing in state courts to reoovei
such •vercharges br making an order, un-
der a court rule which relates tc '
recoverable on bonds given when ti
orders or temporary injunctions
referring to a mastm' the determination of
the damage* sustained by any person by
reason of the granting of tha temporary or
permanent injunction.
[Ed. Noti. — For other eaaos. ef* Couta Oant.
nig. I IUS.1 ^
CoOBTB «=>284{4)— I^DKui. Oomn—Jv-
BiSDiOTioN~-Anoii>i.aBT Suit.
2. A suit to enjoin the prosecution of
actions in a state court to recover over-
charges exacted b^ a carrier is not andl-
lary (so as to be juaticlable In the Federal
courts without diversity of citiienahtp) to
a suit In a Federal court to enjoin the M-
foroenent of rates fixed by the state, Mid
to restrain shipper* and traveler* frMn
suing on aeeount of overcharges, in whlek
a dcOTS* granting the relief sought had been
reversed by the Federal Buprrane Cour^
with directions to dismiss the bill.
3. A Federal court of equity haa na
jurisdietion, upon the ground of preventing
multiplicity of suits, of a bill which seek*
to restrain shippers and travelers from in-
stituting suit against a carrier on accotut
of overcharges collected from them while
injunctions, temporary and permanent,
afterwards reversed by tiia Federal Supren*
Court, were In force.
[Bd. Nota^For other ean*, ••* Injnaetla*.
Coat. DIs. ( XL]
[No. 18S.]
Argued May 2. IBIT. Decided June 4, ISIJ.
APPEAL from the United SUtes Cirentt
Court of Appaala for the Eightb Cir-
cuit to review a daere* which modified, lo
OS to restrain only aetlons on injunction
bonds, a decree of the District Court for
the Eastern District of Arkansas restrain-
ing shippers and traveler* from bringing
suit against a carrier on account of ovar-
chargea collected while Injunction^ ton-
porary and permanent, afterwardk levarsad
on appeal, ware In force. Affirmed.
- e same case below, lU C. C. A. M^
220 Fed. 870.
The facts are stated In tka opinltm.
Messrs. John H. Hoor« and Edward X
White for appellant,
Ur, Alljn Smltta for appellaa^
la topic * KIIT-Knif BER la all Kar-Kambared DISMte
•Mrfoogic
S7 SUPBEUE OOUKT BZPOBTEB.
OoT, Tiui,
• *lfr. JiHtlM BMudela delirered tha opln-
Im of the court;
On Jh>7 18, 1908, tlie Bt LonU, Iron
Mountain, k 8outh«ni lUilwfty Company
filed in the wectern divliion of tiia circuit
(now dlatrict) court of the United States
for tha e«stem dietrict of Arkaneoa a bill
■gainst the Kftilroad Commladonera of that
•tat* to enjoin the enforcemenb of intra-
■tata freight and pawei^er rates pro-
mulgated hj them. Two private citizens,
Leigh and McLean, who were alleged to be
■hipp«ra and travelers on the railroad, were
joined aa defendants; and the bill prayed
that th^ "and all other persona belonging
to the same class, including all patrons" of
tha railroad, be enjoined from instituting
an; suits for penalties or double damages
nnder the ArkauBaa atatutes. On September
9, 1908, a temporary restraining order was
granted which, beaides enjoining the Rail-
load Commissionera from enforcing rates
promulgated by th^n, ordered that the two
private citisens
"and alt other persona and eneh of them
from and after the time that thej shall
have knowledge of this order be enjoined
^ from at any time instituting any such suit
*: or action for or on account of any faiinre
• of the complainant to keep*ln affect and
observe said inhibiUd ratea or lor the re-
covery of damages bj reason of such failure,
during the time tliia order shall continue
in effect."
The railway company then executed, as
ordered, ■ bond with surety to the United
States in the penal sum of 8200,000,
"conditioned that the said complainant shaJI
keep a correct account, showing, as respects
the carriage of passengera and freight, the
dUTcrence between the tariff actually
charged and that which would have been
oharged had the rates inhibited hereby been
applied, showing the particular carriage in
question and the stations between which the
same occurred, and the name of the person
affected, so far as may be practicable, which
record shall be made and kept subject to the
farther order of thia court, and further con-
ditioned that if it shall eventually be
decided that so much of this order as in-
hibits Uie enforcement of the existing ratea
should not have been made, that said com-
iThe condition prescribed was: "That it
ahall, on, and after July 1st, 1909, issue to
each person purchssing a ticket or paying
cash fare upon the train from one point '
tka state of Arkansas to another ^oint
the some state, and confined exclusively to
intrastate travel, a certificate or coupon
shawing the amount paid by such passenger
for such ticket and the date thereof; and
to every shipper or consignee when paying
tralght on any commodity ahlpped from ona
plainant shall, wttUn « reasonable time, to
be fixed by t^e court, refund in every iOr
stance to the party entitled thereto tha ex-
cess of charge over what would have been
charged had the inhibited rate been applied,
together with lawful interest and dam-
agea."
On June 2S, 1&09, an order waa made tor
an additional bond without surety in the
snm of 8SO0,OOO, which provided, among
other thinga, for giving to each passenger
or shipper a receipt which would ebow tbe^
amount payable under the enjoined rates. '^
'On May 11, 1911, a final decree was ear*
tered for the railway company, making per-
manent the injunction in the terms ol the
restraining order, and further ordering
"that the bond for Injunction filed by the
complainant here be released and the sure-
ties thereon discharged from liability."
The decree was reversed by this court, with
directions to dismiss the bill without preju-
dice (Allen V. St. Louis, I. U. ft S. R. Co.
230 U. 8. 653, 57 L. ed. 1625, 33 Sup. Ct.
Rep. 1030); and upon filing of the man-
date in the district court on July 13, 1913,
thia waa dona. But In the decree of dis-
missal the court "of its own motion, and
against the objection of the complainant,
refers, under rule 16 of this court, the mat-
ter of damages alleged to have been sus-
tained by the defendants, the Railroad Com-
mission of the State of Arkansas, by reason
of tha granting of the temporary and per-
manent injunctions herein, to Jeremiah O.
Wallace, Esq., who is hereby appointed ft
Bpecial master for the purpose of determin-
ing the damages sustained. That in deter-
mining these damages, for the recovery of
which the said Commissioners are not act-
ing for themselves, but for the benefit of
all persons, shippers, consignees, and pas-
sengers who have sustained any damages by
reason of the granting of said Injunctions,
the master is hereby authorized, for th*
purpose of ascertaining these facts, to ex-
amine witnesses, administer oaths, and call
upon the plaintiff herein for any books or
papers, or transcripts thereof, which, in his
opinion, are necessary for the purpose o(
enabling him to determine any facts ill
issue in connection with any claim filed
with him.
part of the state of Arkansas to another
part, and which is wholly the subject of In-
trastate trafflc, a receipt or freight bill allow-
ing the amount charged for such carriage of
freight, and also indorse on the same bill th«
amount or rate which would have be^
charged had the inhibited rates continued
in force; which receipt or coupon or freight
bill shall be prima facie evidence of tha
amount paid and the date af paymsot.''
,A_iOOglC
Ult.
ST. UOUm, I. IL 4 S. B. CO. T. HoKHIQHT.
CIS
"And tli« mftBtoT !■ further directed to
gUre noticB by pubticatioii ... to the
•Sect that aJl persons having mmj elaima
S BgaJiut the complaiDHnt bj reason of th«
• fnmting ol Ui« injunctioDB herein shall pre-
Mnt tlie Bune to liim on or before th« lit
ds7 of Norember, 1913, t^ filing with him
the eridence of their elkimi, or nch other
pieof M they possess."
Thereafter Gallup brought fult in ft stats
court of Arkansas to recover from the rall-
Wftj- company tba diffsrence between tlia
aggregate freight and passenger ratei ac-
tually collected from falm while the Injnnc-
ttons, temporAty and pemanent, were In
foroe (that fa, from September S, 1909, to
Jnly 18, 1913), and the amount which
wonld h&TO been collected if the rates en-
Joined had been In effect. The railway com-
pany promptly filed, In the district court,
•D leave granted, what Is called a "sup-
plemental bill of complaint" to reitr^ Gal-
lup from proceeding in ths state court.
Hetcalf, another shipper, who had not
bronj^t suit, but who, H was alleged, was
threatening to do so, was also made defend-
ant ai representative of the daas; and
eUiming that the facts Justified equitable
Interference on the ground of avoiding mul-
tiplicity of suits, an injunction was sought
also against him and others similarly situ-
ated. The supplemental bill specifieally al-
kjged that, by virtue of the decree of May
11, 1911, the railway company was released
from all liability on the bonds or other-
wise from any damage accruing from the
faijvnctlons.
Gallup and Metcalf each moved to dis-
miss the bill for wont of equity. Gallup
also answered, alleging, among other things,
that the overcharges sought to Im recovered
were mainly those arising after the entry
«f the final decree In the district court, and
also that the aggregate of claims filed with
the special master under the decree of July
13, IS 13, greatly exceeded 11,000,000, the
amount of the bonds. The district court
granted the prayer of the supplemental bill.
Upon appeal by Gallup and Metcalf the
circuit court of appeals modified the decree
"so as to restrain only such actions as areS
brought on one or^oth of the bonds." From?
the decree as so modified, the railway otmi-
pany appealed to this court.
^e railway company rests its claim t»
relief apon two grounds:
First; That the district court assumed
by the decree of July 18, 1013, Jurisdiction
to determine all claims arising out of oveT'
charges, so that the commencement by Gal-
lup of suit in the state court was an inter-
ference with its jurisdiction.
Second: That, in view el the DUmbv
and character of the claims of other ship-
pers and travelers, equity should intervene
to prevent multiplicity of suits.
It may be doubted whether, in view of
the mandate, there was any power in the
district court to order referenea to the mas-
ter to determine the liability on the bonds;
but on this question we are not required
to expreaa an opinion,* For it is dear that
even If mch power existed. It could extend
only to such shippers and travelers aa dect-
ed to file their elaime with the master.
The order referring the determination of^
claims for damages to a special master wasjj
declared to be "under rule IS."* 'That rule*
relates to damages recoverable on bonda
given when a restraining order or tempo-
rary injunction is issued. Damages arising
between May 11, 1911 (the date of the de-
cree granting the permanent injunction),
and July IS, 1913 (the date of the decree
on mandate dismissing the bill), were not
recoverable on the injunction bond. Hough>
ton V. Meyer (Houghton v. Cortelfou) 203
U. S. 149, 62 L. ed. 432, 28 Sup. Ct. Rep.
■ In Be Louisville, S31 U. S. SSO, 046, G8
L. ed. 413, 416, 34 Sup. Ct. Rep. 255, and
Louisville v. Cumberland Teleph. t Tel eg,
Co. 231 U. S, 652, 6S L. ed. 410, 34 Sup.
Ct. Bep. 2S0, where it was held that the
district court had discretion to authorize
further proceedings, the mandate ordered
that the decree be "reversed with costs,
without prejudice," and remanded "for fur-
ther proceedinge not inconsistent with the
opinion of this court;" while in the instant
ease the mandate ordered that the decree
he "reversed with costs" and remanded
-with directions to dismiss the bill." See
also St. Louis A, B. F. R. Co. v. Barker,
ZIO Fed. e02i Ex parte Dubuque A P. R.
Co. 1 Wall. 60, 17 L. ed. 514; Dursnt v,
Essex Co. (Durant v. Storrow) 101 V. 8.
665, 25 L. ed. 961; Hackall v. Richards.
lis U. S. 45, 47. 20 L. ed. 658, 559, S Sup.
Ct. Bep. 234; Re Washington & G. R. Co.
140 V. 8. 01, 07, 36 L. ed. 339, S41, 11
Sup. Ct, Rep. 073; Re Potts, 166 U. S, BBS.
41 U ed. 994, 17 Sup. Ct. Rep. 620; Evens
& E. Fire Brick Co. v. United States, 23S
U. S. 210, 69 L. ed. 642, 3S Sup. Ct Rep.
415.
■Rule 16 Is as follows: "In all eases in
which an Injunction has been granted, and
a bond executed by the complainants, dam-
ages sustained b^ the party enjoined, in
cote ih« tn;iiHcl(oii it ituaolved, may be
assessed In the same proceeding, either by
the court or by reference to a master, and
judgment entered In the same action against
the sureties on the bond; provided, how-
ever, that unless the damages are thus as-
sessed in the cause, or a judgment entered
that the party enjoined is entitled to no
damages by reason of the improper grant-
ing of the Injunction, he may proceed ea
the bond in on action at law without taj
further order or leave ol the ecutt."
,A_^OOglC
«14
ST SUPKBMB COUBT BSFOBTBR.
Oor. Tm^
S34. If the reniedy of ahipperi and carrier
were limited to proceedings on the boad,
they would he denied all recovery for over-
eharges after Ma.7 11, 1911. FarthermoT«
the decree of May 11, 1311, expresslf re-
leased the railway company and euretiea
from further liability on the bonds. Inso-
far as the order referred to the master,
'hinder rule 16," the determination alio of
damsgea "alleged to have been sustained by
reason of the granting" of the permanent
Injunction, it was clearly erroneous and af-
fords no juetiScation for enjoining suit in
k state court to recover for overcharges
made after the final decree. It la, indeed,
contended by tlie railway company, that the
affect of the decree entered by the district
H court is to deprive shippers and travelers
E tt all remedy under the bond.* But Gallup
• makes no claim*iuider the bond. He sues
•n causes of action to recover overcharges
arising under the Arkansas statutes. His
right to one, niapended by the injunctions
Improvldently granted, revived as soon as
the permanent injunction was dissolved by
the decree dismissing the bill. .(Uthough the
Injunctions anjoined all shippers and trav-
elers, and therefore him, from instituting
suits <m account of alleged overcharges,
Qallup did not In fact become a party to
the suit in the district oourt; and he could
sot, after the mandate directed dismissal of
the bill, be compelled to submit to that
court the adjudication of bla claim.
The eontention of the railway company
that the "supplemental bill" should be sus-
tained to prevent multiplicity of suits is
also unfounded. Unless it la maintainable
■a an ancillary bill, the Federal oourt vaa
without Jurisdiction, as there waa no di-
versity of citiienship. But it was not an-
*The allegations of the supplemCTtal bill
are: "Complainant alleges that [byl] the
final decree entered in ttie aforesaid cause
on the 11th day of May, 1911, hereinbefore
referred to, it was ordered that the bond
for injunction filed bv the complainant be
released and the sureties thereon discharged
from furUier liability, and it Is advised and
»vers that the effect of said order waa to
relieve complainant of all liability under
aaid bond and preclude any recovery of
damsgea on said bond or by reason of or
growing out of the injunctions ordered In
tiie aforesaid cause.
"Complainant avers that upon the rendi-
tion of the final decree in said cause per-
Etuating and making the temporary in-
nction theretofore granted permanent said
nds ceased, by operation of law, to have
any effect, and complainant ia not liable for
any damage that may have accrued to any
passenger or shipper on Its line of railroad
after the rendition of the final decree per-
petuating and mailing the temporally In-
junction permanenL*
ciliary to any rdlet properly within the
scope of the decree dismissing the original
"" As an independent bill it Is also with-
out equity. Ths only common issue be-
tween the railway company and tbo several
shippers and travelera (namely, whether
the rates promulgated by the Railroad Com-
mission were confiscatory) had been settled
by the decision of this court. In no other
respect have shippers and travelers a com-
mon int«rest. like claims of each present
a separate controversy unconnected with,
that of any of the others. This is obvious-
ly true as to all issues of fact which will
arise In considering their several claima.
And the bill contains no allegation or even
suggestion that a controverted question <d
law, common to all the claims, is involved,
which will determine their right to recover,
or even that there is involved a question «
of law not fundamental, in which they havs^
a* common interest. It might be a con-*
venieoca to the railway company to havs
these numerouB claims of shippera deter-
mined by the master in the district eonrti
hut such a course would certainly involv*
great incouvenienco to many of the shippers.
Hie bin cannot be mainUlned as ons to
prevent multiplictly of suits.
Aflirmed.
JOHN DAVIS COMPANY, Emma E. Balr.
stow, Qeoqte H. Bairstow, and Jesse B.
Blaekmer, Executors, etc, et aJ.
PUSOIPAL AND SUBETY 4=3102— BORD OP
Public OoRTsaxrros—BcLKASK or Sms-
TT — TsansraB a> CoifnatnoK's Bnai-
ItlM.
1. The transfer of the buriness of a
acmtroctor to a craporatlon formed for that
purpose during the progreoa of the work on
a public contract does not release the surety
on the bond given conformably to the Act
of February Zi, 190S (33 Stat at L. 811,
chap. 7TB, Comp. Stat. 1016, | 6923), con-
ditioned for the prompt payment by such
contractor, "his or their heirs, successors,
executors or administrators," to all persons
supplying him or them with labor or ma-
terials in the prosecution of the work.
tSi. Note.— IViT other cases, MS Principal aJSd
Bursty, Cent. DlK. II ISl-lS.]
United States «=>07(2}— Bond or Pdbuo
CONTRAOTOB— 1 NTXBXBI.
2. Claims for liquidstcd amounts un-
der the bond of a public contractor givcK
conformably to the Act of February M, IDW
(83 Stat, at L. 811, chap. 778, Comp. Stat
1816, S 6923), to secure prompt payment
of persona furnishing labor and materials
in the prosecution of the work, bear Inter>
est from the bringing of suit on ths bond,
, whers the amounta are not in dispute^ nnd
IS topic A KBT-NUIIBER In all Ker-Numbsred DKosta * Mf^iW I r>
int.
ILUN0I8 BUBXn 00. v. JOHH DATI8 CO.
«u
tho iigengita lUbilitj on tli« clsims az-
roridi the peiwUy in the bond, KDd where,
under Uie law of the Htkte where the con-
tract and twnd were made And where the
oontTKct wu tfl be performed, the liabitit;
of a surety on a bond i* extended beyond
the penaltj bj way of intarest Irom the
tete when the llabUity on the bond aconied.
[Bd. Not»— For other OMa. m* United BUtaa,
Cent. DU. I W.]
Umited Statu «s>flT(l)— Bohd or Public
OOITTKAOTOR— Li AB lUTT— BBTOPPEL.
3. FerionB lumiBhing labor and ma-
terial* in the prosecution of ft publio work
carried on ftrat by a committee of the con-
tcaetor'B creditors, then b^ a corporation
to which ha transferred his busineu, and
(UU later by a receiver In bankruptcy, are
not eatopped to enforce the liabiUty of
'Uta surety on the bond given conform-
abW to the Aflt of February 24, IB05
(83 Stat, at L. 811, chap. 778, Comp. Stat.
1&16, i 9923), to secure prompt payment
for such labor or matoriela, either by filing
Stnst the estates in bankruptcy of both
contractor and the corporation the whole
M their claims for material delivered ia
part to each, or by recommending, in an-
swer to an inquiry, that the recdrer In
bttnkruptoy ecmiplBte the contract, or by fil-
ing a claim In bankruptey against the eor-
•oration for materials furnished to the eon-
traotor, or by stating to the corporation
ft single account, coTciing all the items of
elaima (gainst both the contractor and the
oorporation, and accepting part payment, or
1^ participating in the activities of the
ereditors' committee which supervised the
busineea throughout the whole period.
[fld. Nota.-^ar stbar ousa, sea UnitM Stataa,
Osnt. Dig. I fiO.l
UniTZD Statm «=>67ffi>— BoKDg or PdB-
Lio CoNTRAOTOE — "Labor asd Mah-
RIALB" — BXNTAL OF SqUIPHXHT —
FxnaBT.
4. Olalms for rental of cars, trade, and
•qnlpment used in the eonitmetion ol a
pnbUa work and for the expense of loading
the plant and the freight thereon to and
from the site of the work are for "labor
or materials" within the meaning of the
bond given conformably to the Act of Feb-
ruary 24, 19D6 [33 Stat, at L. 811, ehap.
778, Comp. Stat. igiS, | 6B23), to secure
Compt payment to all pariona furnishing
bor or materials in the prosecution of the
rOd. Itat^—Wat otber oasM, ass Onltsd SUtss,
Cent. DU- f U. _
For otSar daaDlUont. ■•• Word* and PhrsMS,
FInt *sd Second BarlM, Labor and Matarlal*.]
[No. 23G.]
Argued April 27, 1917. Decided June 4,
1017.
IN ERROR to the United States Circuit
Court o{ Appeals for the Seventh Cir-
eoit to review a judgment which, reveraing
ft Judgment of the District Court tot the
Northern District of Illinois, allowed cer-
tain daim* upon tita bond of ft publio oon-
trftotor. AfflrmpH.
Be* same case below, 141 C a A. 400,
220 Fed. OSS.
The facts are stated In the opinion.
Mr. Albert J. Hopkins for pUintilf !■
Meaar*. Worth AIlOK, Wllllain D. Ho-
Kenale, Kewton Wyeth, Robert J. Gary, t.
Harold Sohmitt, and Charlao S. Erit iar
defendants la error.
'Ur. JiMtlee Brandels delivered the apla>P
ion of the court:
This I* an aetim against tha UliDois
Surety Company tm ft bond given by obm
Schott under Act of Cimgrau, February 24,
lOOS (33 But. at L. 811, chap. 77S, Comp.
SUt. 1910, I 0B23), to secure pwformaneo
of his contract for work oa the Naval
Training Station at Chicago-^ It is biot^ht
for Ulc benefit wi persons who fumishod
labor or materials. The bond provides:
"The condition of tiha above bcmd Is aneh,
that if the said above bonnden principal,
W. H. Sohott, his or their heirs, auccessora,
executors or administrators . . . ahaU
promptly make payments to all perMins sup-
plying him or them labor and matariala fat
the prosecution of the work provided for
in the afores^d contract, then tilts oblfga-
tlon to bo void and of no effect, othenrisa
to remain In full force and virtue."
The bond waa given on Anguat 3, 1909.
Sehott was then heavily Indebted, and hia
business was being conducted under the su-
pervision of a creditors' committee. Latar,
on the advice of that committee, the Elehott
Engineering Company was incorporated to
take over the busineas; and on January t,^
1909, all the asaeU were transferred to tfcg
Schott became president, the members'of'
tlie creditor!' committee directora. Sub-
stantially all the capital stock waa Isanad
to Schott, and all was retained by him
except $30,000 preferred stock which waa
4=>For otliar ci
1 The act, which is entitled, "An Act for
the Protection of Persona Fiimiahiu^ Ha-
terialB and I«bar for the Construction of
Public Works," provides that a contrac-
tor's bond ah&ll include the obligation toi
"promptly make payments to all persona
supplying him or them with labor and ma-
terials in the prosecution of tho work pro-
vided for in such contract; and any person,
company or corporation who has furnished
labor or materials used In the construction
or repair of any public building or pnblia
work, and payment for which haa not been
made, shall have the right to intervene and
be made a party to any action instituted by
the United States on the bond of the con-
tractor, and to have their rights and daima
adjndicated in such action and judgment
rendered thereon, subject, however, to the
priority of the claim and judgment of tbo
United Btatas." OQIC
11 Ks7-NamMrad DIaeits ft Indeisi
n SUFBEHB COUBT EBFOBTEB.
OoT. Tbk,
later Mid — Um proceedg being used to pa;
4efati. Neither the government nor the
Boretj Cempany wai advised of the trans-
fer, which left the management and the
OMiduct of the buaineei unchanged; and the
work was proceeded nith continuoudj from
tba execution of the bond until Janu&rf 14,
1910, when both Schott and the company
were adjudicated bankrupt. After a ahorL
lateiTuption, the work waa reaumed by the
receiver under authority o( the court; and
•ettlement waa made with the government.
Twenty-aeven creditors, six of whom fur-
nlahed labor or materiala prior to January
2, ISOO, the reat of whom had clainu arliing
between that date and the baokruptcy,
•OVl^t to recover on the bond.
The diatiiet court allowed recovery on
At* o( the elaima, aggregating tlS,333.&4,
which accrued prior t» tiie transfer of the
businesa to the Schott Engineering Com-
pany. The circuit eourt of appeals reversed
that judgmoit and allowed ILe claims of all
who Joined in the writ of error to that
eourt— nineteen, aggregating 93S,121.r'
but it reduced them pro rata to make the
aggr^ate equal the penal^ ol the bond, —
«31,<M7.]8. It then allowed interest on all
from the date of the commenoement of the
antt 141 C. a A. 409, £26 Fed. 663. The
Surety Company appealed to thia court and
«0B tends:
(1) As to each claim that it was releaaed
frtna liability by the tranafn of the busi-
ness to the Schott Engineering Company
during the prepress of the work.
(8) As to each claim that Intereet ahould
not begin to run before the date when the
amount payable on all claims was ascer-
tained by the judgment of the circuit court
of appeals.
(S) Ai to certain claims, that the cred-
§itora are estopped by specific acta from en-
forcing the liability upon the bond.
■ * (4) As to the claim of the United SUtee
■ Onited Statea Fidelity ft O. Co. v. Oold-
en PrcflBGd A, Fire Brick Co. (United SUtea
Pidelity & Q. Co. v. United States) 191 U.
B. 416, 48 L. ed. 242, 24 Sup. Ct. Sep. 142;
United States use of Hill v. American Sure-
ty Co. 200 U. S. 197, 60 L. ed. 437, 26 Sup.
CL Rep. ICB; United States Fidelity k Q.
Co. V. United States, 20B U. S. 306, 62 I*
ed. 804, 28 Sup. Ct. Rep. 637; Mankin v.
United States, 216 U. S. G36, 64 L. ed. 31S,
80 Sup. Ct Hep. 174; Title Guaranty & T.
Co. V. Crane Co. 219 U. S. 24, 65 L. ed. 72,
31 Sup. Ct. Rep. 140; United Statea Fidel-
ia A G. Co. V, United SUtee, 231 U. S.
S37, 68 L. ed. 200, 34 Sup. Ct. Rep. 88;
United States ex rel. Alexander Bryant Co.
V. New York Steamfltting Co. 23& U. 8.
327, 69 L. ed. 253, 36 Sup. Ct. Hep. 108;
Illinois Surety Co. v. United States, 24Q
U. 8. 214, 60 L. ed. BOO, 36 Sop. Ct. Rep.
321. See aUo Equitable Gure^ Co. v.
Equipment Compaay, that rental for ear^
track, and equipment is not a claim for
"labor and materials" recoverahle on bond.
Hesa contentions will be considered in
their order.
Firet; The pnrpose of the act was to
provide security for the payment of all per-
sons who provide labor or material on pub-
lie work. Hits was doae by giving a claim
under the bond in lieu of the lien upon land
and buildings customary where property la
owned by private pereona, Dedaions of thia
court have made it clear that the atatuta
and bonds given under It must be eonstrued
liberally, in order to effectuate the purpose
of Congrwa as declared in the act. In every
caae which haa come before this court,
where labor and materials wore actually
furnished (or and used In port performance
of the work contemplated in the bond, f*-
covery iraa allowed, if the suit waa brought
within the period prescribed by the aet.
Technical rules otherwise protecting sure*
ties from liability have never been applied
In prooeedingi under this statute. ■ As the
baais of recovery ia aupplying labor aad
matarUl for the work, he who has supplied
Uiem to a anbcontraetor may claim under
the bond, even If the snbeontractor has beea
fully paid. Hankin v. United States, 215
U. a 633, B4 L. ed. SIS, SO Sup. Ct. Bep.»
174.* If Schott had formally sublet the con-?
tract to tbe Engineering Company, the
Surety Company would dearly be liable.
But the transfer of the buaineas was, at
most, a subletting; since under Rev. Stat.
S 3737, Comp. SUt. 1910, g 6390, Schott
could not assign a contract with the United
SUte*.
It is urged that the bond referring t»
Schott providea protection only to thoee
"supplying him or them labor and mat»>
rials." But the claims in question were in
a very practical sense furnished Mm — aa
well as the Engineering Company. He ra-
United States, 234 U. S. 448, e8~L. ed. 1394,
34 Sup. Ct. Rep. 803. In Hardaway v.
National Surety Co. 211 V. B. 662, S3 Xj.
ed. 321, 29 Sup. Ct Rep. 202, where recov-
ery was denied, the "use plaintiffs" had not
furnished materials or labor, but were
financiers. In United States ex rel. Texaa
Portland Conent Co. v, MeCord, 233 U. 8.
167, 68 L. ed. 803, 34 Sup. Ct Itep. BM,
the question B involved were whether suit
was brought within the statutory period.
In United BUtes Fidelity i, O. Co. t.
United States, 204 U. S. 349, 61 L. ed. 610,
27 Sup. Ct. Rep. 381; United Statea ▼.
Congress Conetr. Co. 222 U. S. IBB, 66 I,.
cd. 103, 32 Sup. Ct Rep. 44; Title Guar-
anty 4, Surety Co. v. United Statee, 228
U. S. 667, 67 L. ed. 969, 33 Sup. Ct Rep^
614, the questions raised were a* to Um
jurisdiction of the court
,A_.OOglC
leie.
mftlncd llaUa on the costrxit; and no
«Im vu known to United States. Further-
more, if the attention ii to be directed to
the precise wording of the bond, it should
be anted tliat it refer* to Schott, "his or
their heire, successora, eiecutors or ftdmin-
(■tratorHi" and the Engineering Companj
mar properly be deemed a lucceseor. The
■rgument that the aurety'e risk ought not
to be increased by holding it lisble for the
default of strangers to the original contract
is of no greater force in the case of an
assignee than it is in that of the subcon-
tractor. The Suretj Company eould pro-
tect itself by Insisting that the contractor
require a liond from all subcontractors and
assignees. The Surety Company wss in no-
wise prejudiced by the transfer of the busi-
ness, since the management remained
unchanged; and no reason is shows for ap-
plying the rule of strictissiroi juris. United
States Fidelity & Q. Co. t. Golden Presaed
Fire Brick Co. (United States Pidelity i
G. Co. r. United States] 101 U. G. 416, 42e,
48 L. ed. £42, 246, 24 Sup. Ct. Rep. 142.
Second: The contract and liond were
made in Illinois and were to be performed
there. Questions of liability for interest
must therefore he determined by the law
of that state. Scotland County t. Hill, 132
tr. 8. 107, 117, 33 L. ed. 2S1, 265, 10 Sup.
Ct. Kep. Ed. Under the law of Illinois the
liability of a surety on a bond is extended
beyond the penalty by way of interest from
the date when the liability on the bond ac-
crued. Holmes t. Standard Oil Co. 183 111.
70, 65 N. E. 647. See United States t.
United States Fidelity ft O. Co. 236 U. S.
S12, 530, S31, ES L. ed. B06, 704, 705, 35
g Sup. Ct. Sep. 298. The liability bare ac-
* crued at least as early as the commence-
• ment of the* auit. The Surety Company
contends that the amount each claimant
was to receiva was not made definite until
it was actually decided by the court of ap-
peals. But the claims were all for liqui-
dated amounts; and in no instance was the
amount in dispute. The controversy was
merely as to which of the claimants should
be entitled to shore in the liability under
the bond. The Surety Company might have
paid into court at the commencement of the
•nit an amount equal to the penalty of
the bond. It did not elect to do lo; end
■s the aggregate liability on the claims
SKceeda tlie penalty, It was properly held
for an additional amount equal to interest
from the commencement of the suit.
Third : The contention of the Surety
Company that certain of the claimants are
•■topped from enforcing liability on the
bond rests upon different acts in respect
to the sereral creditors. As to some it is
because they filed against the estates in
taakmptcy of toth Schott and the En-
UISSOUBI, E. * T. B. CO. T. WAHD.
BIT
gineering Company the whole of Uttlt
claims for material delivered in part t«
each. As to one creditor the estoppel Is
predicated upon the fact that, in answer to
an inquiry, he reeonmiended that the re-
'ceiver in bankruptcy complete the eontracL
As to another creditor the estoppel is predi-
cated upon the fact that he filed his claim
in bankruptcy against the Engineering Com-
pany while the materials had been furnished
to Schott. As to still another, the conten-
tion reets upon the fact that having claims
against both Schott and the Enginoering
Company, ha had stated to the Engineering
Company a single account covering all the
Items, and had accepted part payment; and
furthermore had participated in the activi-
ties of the creditors' committea which su-
pervised the bnsinaee thronghout the whole
period. Such acts lack alt the elements of
an equitable estoppel. The Surety Company^
was not led thereby to do or to omit to dOn
anything. It did not rely upon, nor was itjj
affected by, any of the acts it now calls'at-*
tention to. Dickerson v. Colgrove, 100 U.
8. fi7S, 680, 26 L. ed. 618, 619. There is in
fact no IneonsiBtency hetvreen the claimants'
earlier acts and their attempt to recover on
the bond. The Sure^ Company's contention
is without merit.
Fourth: The spedfle objection made ttt
the claim of the United States Equipment
Company, for rental of cars, track, and
equipment used at the Naval Training Sta-
tion, and the eicpenee of loading the plant
and freight thereon to and from the station,
is also unfounded. The Surety Company
contends that this ia not supplying "labor
and materials." The equipment was used
in the prosecution of the work. Material
was thus supplied, although a loan serriiig
the purpose, no purchase of it was made.
The expense of loading and freight was
properly included with the fixed rental as
recoverable under the bond. Title Ouar-
anty A T. Co. t. Crane Co. 219 U. S. 24,
34, 55 L. ed. 72, 77. 31 Sup. Ct Rep. 140.
Judgment affirmed.
Mr. Justice Tan Devanter and Mr. Ju9>
tics UcReynoIds dissent.
(2*4 U. a tst)
MISSOUBI, KANSAS, ft TEXAS RAIL-
WAY COMPANY OF TEX.\S, Mieaourl.
Kansas, ft Texas Railway Company, and
American Surety Company of New Yoric,
PlfTs. in Err,
Cabbiebs *»8S— ConnzomTO Cabuxh —
Cajiuace Amxrdvkht— BtonoT o* tec-
OND Bill or LaoiNs — Laox ox 09Mn»-
EBATION.
1. The terms el the •ricinal kill ot
M topic * KST-KUIf BBH In all Ker-Nnmberad Dlisata ft Iadns»^ -^ ^ . -,
ST SUPBEHE COURT BEPORTER.
Oor. Tiui,
%t L. 694, chap. 3591, Comp. Stat. 1916,
I S563], which govemn the oitlre trdnB-
portAtion, could not be altered bj i. tecond
bill of lading iiEued by a c(»iiieetinK car-
rier, «iiic« the latter waa already bound to
bruuport the shipment at the r&te and
upon the terms named la the original bill
of lading, and the acceptance by the shipper
of the second bill was therefore without —
aMeration and was void.
[Ed. Note.— For athw cuM, lea Carciart. Oaot.
Dfc iS4]
Oabbiebs ^»180[1>— CoHHJKnrHo Cabbi-
EBB— CAKUACK AUENDUEriT — NOTICK Ol
Oladc—Second Biu, or LAoma.
2. To require tbe shipper of an inter-
state shipment, in order to recorer for a
loss, to file his veri&ed claim with the con-
necting carrier which caused the injury, as
la provided in u, separate bill of lading Is-
■UM by that carrier, would defeat tbe pur-
poui of the Act of June Z9, 1906 (34 SUt.
at L. 684, cbap. 3591, Comp. Stat. JSIO.
B 8SS3), which was to relieve shippers of
the diflicnlt and and almost iu^jossfble taak
of determining on which of several
Ing liuea the damage occurred.
Oabkisbs 4=368— Common no Cabbitsb ■
Cakiuce AuxNDictnT— Wajtbb— Acccft-
nio Secohd Biu. or LADiira.
3. Acceptance by the shipper of an in-
terstate shipment of a aeoond bill of lading
Issued by a connecting carrier did not and
eould not operate as a waiver of any rigfata
thereafter accruing under the original bill
of lading issued conformably to the Act of
June 29, 1006 (34 6tat al L. 684, chap.
S591, Comp. Stat ISIS, | B563), by the
initial carrier.
[Xd. Nota.— 'For otlior essss. sat Oarrfera, C«nL
DIa. fi 141, IM. WT-m. tU.]
[No. 241.]
Submitted April 30, 1917. Decided June 4,
1817.
IN ERROR to the Court of Civil Appeals,
Third Supreme Judicial District of the
State of Texas, to review a judgment which
affirmed a judgment of the District Court
of Llano County, In that state, against cer-
tain carriers in an action to recover dam-
ages for injuries to an interatate shipment.
Affirmed.
See same case below, — Tex. Civ. App.
— , 169 S. W. 1035.
The facts are stated in the opinion.
Messrs. Alexander Britton, Joseph H.
Bryson, Charles 0. Huff, Alexander H. Mc-
Knight, and C. 8. Burg for plaintiffs in
error.
■ No ^pearance for defendants In error.
* Mr. Joatice Dntodela daliveied the opin-
las of the conrti
This U an action to recover damages for
Injuries to cattle in the course of an inter-
state shipment. Tile cattle were delivered
on August 23, 1912, by J. R. Ward to the
Houston t Texaa Central Railroad Com-
pany at Llano, Texas, for transportation
by it to Elgin, Texas, and over connecting
lines, the Missouri, Kansas, A Texas Bail-
way Company of Texas, and the Missouri,
Kansas, t Texaa Railway Company, to
Winona, Oklahoma. The Houston Company
issued a through bill of lading in the form
of the "live-stock contract" in common use,
and charged a through rate, which was paid
by the shipper, aa agreed. The cattle ar-
rived at destination in a crippled and de-^
bilitatcd condition, allied to have resulted 5
from tha'delay, rough handling, and other*
negligence of the carriers. Plaintiffs
brought this suit for damages in the dia-
triet court for Llano county, joining the
three carriers as defendants. The petition
contained no reference to the Carmack
Amendment (June 29, 190B, chap. 3591, 91
Stat, at L. S84, 6S5, Comp. Stat 1910,
iS 8663, 80040, 8604aa).l The Houston
Company answered, setting up a provision
in the bill of lading limiting liability to
injuries occurring on Its own line; and al-
leging that the cattle were transported to
Elgin with ordinsiry care and there deliv-
ered In good condition to the connecting
carrier. The Missouri, Kanaaa, k Texas
Railway Company of Texas, In ita answer,
denied the allegatlona of the complain^
and. In addition, alleged that it had ac-
cepted the cattle at Elgin under a second
bill of lading or lire-stock contract, ^-
ccuted by it and by one E. A. Barrer, as
agent of the shipper; that the plaintiff had
failed to comply with a stipulation therein,
requiring, as a condition precedent to lia-
bility, that a written claim for damages ba
filed within thirty days after the happen-
ing of the injuries complained of; and that
"^e said ahlpment constituted and was an
InterstatA shipment, originating In Llano,
Llano county, Texas, and destined ta Wy-
nona, in the state of Oklahoma, . . .
and the said provl^ona of said bill of lad-
ing were and are, each and all binding upon
[under?] the laws of Congress relating to
interstate commerce in force at the tjme
said bill of lading was executed and said
shipment made."
Tbe record Is silent as to the circum-
stances under which this second bill of
lading was executed; and although tt is
alleged to have been issued in conai deration
1 The rights of the parties are not «!•
fected bv the Act of March 4, 1916, eb^».
ITS, 38 Stat at I.. 1190, Comp. Stat. ISltL
i S004a, dispensing with the UOMal^ at
notioe ti daun In certain easaa.
■s see same tople * KBT-MUltBBR la aU K«r-Nnmbw«4 DIawts * Indn
D,at,z.d>,.'^-.00'^IC
MISSOURI, K. ft T. &. 00. Y. WABD.
«»
wt ft ipaoUl ndne«d nit« tharetofon dvlj
Bed with tliB InteratKta Canuuaroe Commia-
■ka, there U nothing to indlekte that it
S aftcted tha through rkt« kiready agreed
■ upon In ■the original biil ot lading. Thii
lower rftte referred to ftppeue to have bean
merely the cuatonwrj epeeUl T&ts offered in
eoniidaTBtioB ol an agreed maximum valu-
ation ott the a&ttle per head, ^le MUne
agreed value waa atlpulated In the original
bill of lading, whieb ezpreaaly "limits the
liability of carriera in conaideratlon of a,
lower rate being granted-" The MisBourl,
Kanaaa, k Texas Ratlwajr Company set vp
the same defeuie, alleging that it had ac-
cepted the iblpment under tha eecond bill
of lading.
A jury trial having been waived, the ease
waa heard by the court, and judgment ren-
dered In favor of the Bouiton Company,
bnt againat the other two defendants iu
amounts which were found to represent the
damage suffered In the course of the trani-
portation through Uie negligeaee of their
respective agenta. Upon appeal by these
defendants, the court of civil appeals of the
third supreme judicial diitrlot afBrmed the
Judgment, on the ground that the liability
of the connecting carriers must be governed
by the proviaiona of the bill of lading Is-
■ued by the initial carrier, — (which did not
require a written claim in thirty days], —
and that the second bill of lading was void
under the Carmaek Amendment ( — Tec.
Civ. App. — , 189 a. W. 103B). Upon de-
nial of a petition for rehearing the ease
waa brought here on writ of error.
The purpose of the Carmaek Amendment
Itaa been frequently considered by tbla
court* It was to create in tha initial car-
rier unity of responslbitity for the trans-
portation to destination. Atlantic Coast
Idne R. Co. v. Riverside Mills, SIS U. 8.
IH, 66 L. ed. 167, 31 L.ILA.(N.B.) T, 31
Sup. CL Rep. 164 1 Northern P. R. Co. v.
^ Wall, 241 U. S. B7, K, 60 L. ed. S06, BOT,
SM Sup. Ct. Rep. 403. And provisions in
• the biU (^'lading inconsistent with that lia-
bility are void. Noriolk ft W. R. Co. v.
DUie Tobacco Co. 22S U. S. B93, ST L. ed.
980, 33 Sup. Ct. Rep. 60S. While the re-
ceiving carrier ia thua responsible for the
■ Atlantic Coast Line B. Co. v. Riverside
Uilla, 81S U. 8. ISO, 66 L. ed. 167, 31
L.n.A.(N.S.) 7, >1 Bup. Ct Rep. 184;
Adams Exp. Co. v. Croninger, 228 U. S.
4&1. 57 L. ed. 314, 44 L.R-A.fN.S.) 267,
33 8np. Ct. Rep. 148: Kannas City Southern
R. Co. V. Carl, 227 U. 8. 639, 57 L. ed. 6B3,
SS Bnp. Ct Rep. 301 1 Qeorgia, F. k A. R.
Co. V. Blish Mill. Co. 241 U. S. ISO, 60
L. ed. S4S, 38 Sup. Ct Rep. 641; St
Louis, I. M. & S. R. Co. v. Starbird. 24S D.
S. 692, ei L. ed. 917. 37 Sup. Ct. Rep. 402,
decided April 30, 1917.
whoh earrtaga, eaiA connecting road may
still be sued for damages occurring on its
line: and the liability of »uch participating
carrier is fixed by the applicable valid terms
of the original bill of lading.! The bill of
lading required to be tssned by the initial
carrier upon an interstate shipment gov-
erns the entire transportation. Tha terme
of the original bill of lading were not al-
tered by the second, issued by the connect-
ing carrier. As appellants were already
bound to transport the cattle at the rate
and upon the terms named in the original
bill of lading, the acceptance by the shipper
of the second bill was without eonsideratioa
and was void.
The railway companies eontoid that
while the Carmaek Amendment makes tha
receiving carriers pay for all liability in-
curred by the connecting lines, the question
of whether there la any aueh liability or
not must ba determined by reference to the
separata eontracta of each participating
carrier, and not to the contract of the ini-
tial carrier alone. If, as contended, a ship-
per must, in order to recover, first file hia
"veriled claim" with the connecting carrier
who caused the injury, sa provided in a
separata bill of lading Issued by such car-
rier, the shipper would still rest under tha
burden of determining which of the several
successive carriers waa at fault Such a
construction ol the Carmaek Amendment
would defeat its purpose, which was to re-
lieve shlppera of the difficult, and often
impossible, task of determining on which of
the several connecting lines the damage oo-gg
eurred. For the purpose of fixing the lia-J£
bility, the aeveral carriers roust'be treated,*
not as Independent contracting parties, but
as one system ; and the connecting lines be-
come In effect mere agents, whose duty It
ia to forward the goods under the terma of
the contract made by their principal, the
initial carrier. Atlantic Coast Line R. Co.
V. Riverside Mills, 219 U. 8. IBS, 206, 66
L. ed. 187, 182, 31 L.R,A.{N.S.) 7, 31 Sup.
a. Rep. 164) Oalveston, H. Jt 8. A. R. Co.
V. Wallaee, 22S U. 8. 481, 401, 60 U ed.
516, 528, 32 Sup. Ct Rep. 206.
The railway companiea alio contend that
the acceptance of Ue second bill of lading
operated as a waiver of all rights there-
after accruing under the first. Tba record
■ Oeor^a, F. ft A. R. Co. v. Blish HUL
Co. 241 U. 8. 190, 164, 190, 60 L. ed. 948,
961, 962, 36 Sup. Ct Rep. E41; Kansaa
City Southern R. Co. v. Carl, 227 U. S. 630,
648, 67 L. ed. 683, 680, 33 Sup. Ct Rep.
301. See also Southern R. Co. v. Preacott,
240 U. S. 832, SO L. ed. 836, SO Sup. Ct
Rep. 469; Cleveland, C. C. ft St L. R. Co.
V. Dettlebach, 230 U. 8. 688, 00 L. ad. iSI,
U Sup. Ct Re^ 177.
A^iOOglC
r 8UPRKUB CX>UKI REPOBIBB.
Oo>. Tnn.
dUeloMa B* erMcBM af intflntitm to make
wuA a waiver and thers waa no eonsidera-
tioii for it. Furthermore, as Etated in
Georgia, F. 4 A, E. Co. t. Blish Mill. Co.
£41 U. 8. ISO, 197, M L. ed. 018, 952, 30
Sup. CL fi^. 541, "the parties could not
waive the terms of the contract under which
the shipment waa made pursuant to the
Federal act. , . ■ A different view would
antagonize the plain polic; of the act and
open the door to the very ahusea at which
the act wae aimed."
Judgment afBrmed.
(144 D. B. MD)
NEW YORK CENTRAL ft HUDSON
WVER RAILROAD COMPAMY, Plif.
in Err.,
MICHAEL TONSELUTO, an Infant, Who
Suea bj James TonselUto, His Next
Friend. (No. 239.)
NEW YORK CENTRAL k HUDSON
RIVER RAILROAD COMPANY, PUT.
. In Err.,
i- V.
1- JAMES TDNS^XLITO. (No. 240.)
— Follow ino Decisioit Btiow—AanoK
Under Fkdeeal Euplotxbs' LuBiurT
Act.
1, A judgment tn favor of plaintiff In
an action under the Federal EmplOTers*
Liabilitj Act of April 22, 1S08 (3G Stat,
at L. 6C, chap. 149, Cmnp. Stat. 1910,
a 8657-8665), will not be diBturt>ed on writ of
error to a state court, where there is aJe-
quate evidence to ^ustlfj the submiBsion of
the isaues to the jury, and the charge can-
not be said to contain material errors, and
both state courts have sustained the jndg-
r. NoU.— For other c««m, bm Oouru, GenL
I 1090: AppBal and Error, Ceat. Dig. |1
I3H, S3SG.]
ComotBCE «=38(6) — BZOLTJ8ITEI4ESS oe
FXDE&AL RBOnLiTIOK— BaiPLOTEBS' Iitl-
BiLiTT— Common -Law Action— Suit ar
Father of Injdbed Mimob Eiifloses.
2. The common-law right of the father
of a minor employee of an interstate rail-
way company, injured IhroUKh the latter^
negligence while he was employed in inter-
state commerce, to sue the compai ,
count of CEpensee incurred for medical at-
tention to his son and for the loss ot the
latter's aervices, did not survive the en-
actment of the Federal Employers' Liabil-
Hy Act of AprU 22, 190S (35 Stat, at L.
66. chap.149, Comp. Stat. 1916, || 8657-8685),
in which Congreas declared when, how far,
and to whom, such carriers shall be liable
on account of accidents to employees In the
apedfled elasa.
[Nos. 2S9 and 840.]
IN ERROR to the Court of Errors and
Appeals of the State of New Jwaey t«
iew a judgment which affirmed a judg-
ment of the Circuit Court of Hudson Coun-
ty, in tliat atate, in favor of plaintiff in ft
auit under the Federal Employers' Liabilitj
Act, brought by the father as next friend
of the injured minor employee. AfBrmed.
N ERROR to the Court of Errors and Ap-
peals of the State of New J^eraey to
review a judgment which afCiined a judg-
ment of ths Circuit Court of Hudson Coun-
ty, in that state in favor of plaintiff In aa
action by the father of a minor emplt^ee
n interst*te railway eompany, injured
while emplt^ed In tuteratate commerce to
recover from the company on account of
expenses incurred for medical attention to
the son, and for losi of the latter's serv-
ices. Beversed and remanded for further
proceedings.
See same esM below, ST N. J. L. OSl, H
Atl. 804.
The facts are stated in the opinion.
Messrs. Albert O. Wall and John A.
Hartpence for plaintiff in error.
Mr. Alexander Simpson for defendant*
Mr. Justlee H6II«7nalds delivered the
opinion of the court:
By stipulation, these causes were triedM
together before the same jury and upon tiiaS
same testimony. Michael 'Tonoellito, an*
infant seventeen years old, suing by hi*
father, Jamea Tonsellito, as next friend
and relying upon the Federal Employers'
Liability Act, obtained a judgment tor per-
sonal Injuries suffered while employed by
plaintiff in error — ^Number 23S. TheM in-
juries, he alleged, resulted from negligence
in constructing and maintaining its road-
bed and in atarting a locomotive without
giving him a reasonable opportunity to
climb thereon. James Tonsellito recovered
for himself on account of expenses incurred
for medical attention to his son and loss of
the latter's services — Number 240. Rotlx
judgments were affirmed by the court of
errors and appeals. BT N. J. li. S51, H
Atl. S04.
Beversat is asked in the cause instituted
by Michael Tonsellito because (1) he waa
not engaged in interstate commerce when
injured; (2) no negligence by the railroad
was shown; (3) he assumed the risk; and
(4) he was a mere volunteer when Oi*
accident occurred. We think there waa
adequate evidence to justify submission of
all these matters to the jury; and we are
unable to say the charge contains matorial
error. Both state courts have sustained tho
judgment; there are no special eircumstaa-
«ea demanding oonunent; and it aeema
C=3Far othar cues ■•• h
lo topic * KBT-miHBBR In all Ker-Muml
"TT*P'*^tWPTglC
itie.
lUSON T, UNITED STATKa.
axni^ to umounM onr conclnsloK- Great
Northern R. Co. t. Knapp, 240 U. B. 4G4,
««, 60 L. ed. US. T61, SB Sup. (X K«p.
MS; Erio B. Co. t. Welih, 242 U. 8. MS,
ei L. ed. 319, 37 Sup. Ot. Rep. 110.
Hib court ftf errors and a;^eali ruled,
and it is now maintained, that ths right of
action asserted b; the father existed at
oonunon law and was not taken awaj hj
tiie Federal Einplopera' Uabilitj Act. But
the contrary view, we think, is clearlj eat-
tled bj our recent opinions in New York
a etc. R. Co. V. Winfield, 244 n. 8. 147. 61
U ed. — , 37 Sup. Ct. Rep. 546, and Eliie R.
Co. T. Winfield. 244 D. S. 170, 61 L. ed. — ,
37 Sup. Ct. Rep. 556 (decided Ua; 21, 1917).
There we held the act "is compraheDsiTe
and also exelugfTe" )n respect of a rail-
road's liabilit? for injuries suffered hj its
m amployees while engaging in Interstate
n commerce, *^t establiihea a mle or regu-
* lation which Is Intended to* operate nni-
formty in all the state* aa respecto inter-
■toto eommerca, and in that field It is both
paramonnt and excluslT*." Congreas haTing
declared when, how far, and to whom eai-
rlers shall be liable oa account of acci-
dents in the spceifled class, such liabilitj
can neithei be extended nor abridged hj
oornmon or (tatntory laws of the state.
lbs judgment in Number 239 is affirmed.
Ib Number 240 the Judgment below Is
reversed and ths cause remanded for fur-
ther proceedings not inconBiitent with this
opinion.
Beversed.
■ In the ro-
UNITED STATEa
Wirmsssa 4»29T — Pbivileok — SxlT'
OBWINATIOIf.
Witnesses called to testlfr before a
grand jury en^Rged in inveetigating a
idtarge of gunbling against other persons
cannot justify, under the claim of their
constitutional privilege against Belf-criml-
aation, their refugal to answer the ques-
tions whether a gsme of cards was going
Ott at the table at which they were sitting
at a specified time and place, or whether on
that occnsion they saw anyone pisying cards,
there being no sumgestion that, under the
local law (AlaskaComp. Laws 1013, 12032),
it is criminal to sit at a table where cards
less played for something el VEtlue.
[Xd. NetSv— Fur athar nesis. see Wltaesass.
OmL Di*. H UU. IDM-Unj
IN ERROR to the District Court ot the
United States for the District of Alaska,
Second Division, to review an order impo^
ing a fine for contempt in relusing to an-
swer certain qneetions asked upon an In-
vestigation betors a grand jury. AiBnaed.
The facta are stoted in the i^inion.
Ur. Ooorge B. Grlcaby for plaintiffs la
Mr. Justice HoBeynolda dalivarod thi*
opinion of the court:
Plaintiffs In error were separately called
to testify before a grand jury at Noma,
Alaska, engaged in Investigating a dtarga
of gambling against six other men. Both
were duly sworn. After stoting that he
was Bitting at a toble in the Arctic Bil-
liard Parlors when these men were thefo
arrested. Mason refused to answer two
questions, claiming so to do might tend to
Inerimiuato him. (1> "Was there a gama
of cards being played on this particular
evening at tiie table at which yon wen
sitting!" (2) "Was there a gam* of cards
being played at another table at this tine I"
Having said that at the specified time and
place he, also, was sitting at a tobl^ Han-
son made the same claim and refused to
answer two queationa (1) '^f at thia
time or just prior to this Ume that your-
self and others were arrested in ths Arctie
Billiard I^lors if you aaw anyone there
playing 'stud poker' or 'pangingi'T" (S)
"If at this same time you saw anyone play-
ing a game of card* at the table at whleh
you were Bittingl"
The foreman of the grand Jury promptly
reported the foregoing facts and the judge
at once heard the recalcitrant witnesses;
but as the record contains no detailed state-
ment of what then occurred we cannot know
the exact circumstoncea. ^e court, being
of opinion "that each knd all of said ques-
tions are proper Mid that the answers
thereto would not tend to incriminato the
witoesaes," directed them to return befora
the grand jury and reply. Appearing there,*
Mason again refused to answer the first J
question propounded to him, but, haU*yie1d-*
to frustration, said In response to ttio
second, "I dont know." Hanson refuted
to answer either question.
le * KKT-NinfBaX In all Ker-Mumberea IHcwts *
^TfTo^ic
n BusBsasz coubi ebfobier.
Oct. Tuh,
A Mcond report wu prawntod bj tbe
lorenuui; the witnesaea ware once more
brought into eonrt; uid after hearing evi-
dence adduced hy both side* and •Jgiunenta
of counHl the/ were adjudged in oontempt.
It w»a further ordered "that thej each be
flned la the amn of $100, and that thej
•aeh be Impriaoned until they comply with
tha ordera of the court bj answering Uie
qneatlona." Immediataly f(d]owing this or-
der thejr made answers, bnt theae are not
■et out in the record. The flnea are unpaid ;
and we are asked to nrerse Uie trial court's
action in undertaking to Impose them be-
canae it conQlctt with the iithlbition of the
6th Amendment that no peraon "shall be
compelled in aaj erlminal case to ba a wit-
Besa against himself."
During the trial of Aaron Burr and '^e
Willie," Fed. Cm. No. 14,8B2e, the witness
waa required to aoawer notwithstaading
hla refusal upon the ground that ha might
thereby ineriminate himself. Chief Justice
UarshslI announced the applicable doctrine
as follows: "When two principles oome in
conSict with each oQier, the eourt must
give Xbtau both a leasonabla oonstmction,
80 as to preaerre them both to a leBso&able
«xtent. The principle which entitles the
United States to the testimonj of ererf citi-
cen, and the principle tj which erer^ wit-
ness ia privil^ed not to accuse himself,
can neither of them be entireljr diaregard-
ed- ^cf are believed both to be preaerved
to a reaaonable extent, and according to
the true intention of the rule and of the
•zceptloa to that rule, hj obaerring that
•ourae which it la conceived courts hare
generally obaerved. It is this: When a
question ia propounded. It belouga to the
court to eonaider and to decide whether anj
$ direct answer to it can implicate the wit-
• ness. If this be decided in the'negative,
then be maj answer it without TloIaUng
the privilege which ia secured to him bj
law. If a direct answer to it maj- crimi-
nate himself, then he must be the sole
judge what his answer would be."
The constitutional protection against
self-incrimination "is confined to real dan-
ger, and does not extend to remote possi-
bilitiea out of the ordinary course of law."
Heike v. United Stat«i, 227 U. 8. 131, 144,
B7 K ed. 460, 466, 33 Sup. Ct Eep. 226,
Ann. Cas. 19140, 128; Brown t. Walker,
161 V. B. S91, ES9, 600, 40 L. ed. 8IS, S21,
822, S Inters. Com. Rep. 369, IB Sup. Ct.
Bep. M4.
In Beg. T. BoTCS (1861) 1 Beat k B.
311, 329, 330, 121 Eng. Beprint, 730, Cock-
burn, Oh. J., aaid:
"It waa also contended ttiat a bare possi-
bility of legal peril was anfficient to en-
title a witness to proteotlon; naj, farther.
that the witneas waa the sole judge aa to
whether tiia evidenea would bring him into
danger of the law; and that the statement
of hia belief to that effect, if not mauifeat-
ij made mala fid^ should be reoeived as
eoncluaive. With the latter of these
propositions we are altogether unable to
concur. ... To entitle a partj called
as a witness to the privilege of silence, the
oonrt must see, from the circumstances of
the case and the nature of the evidence
which the witneas la called to giv^ that
there ia reasonable ground to apprehend
danger to the witness from his being com-
pelled to answ^. We indeed quite agree
that, if the fact of the witness being in
danger be once made to appear, great lati-
tude should be allowed to him in judging
for himaelf of the effect of any particular
question: ... A question which might
appear at flrat sight a very innocent one
might, bj affording a link in a chain of
evidence, become the meana of bringing
home an offense to the partj answering.
Subject to this reservation, a judge is, ia
our opinion, bound to Inaist on a witneas
answering unless he ia aatlsffed tliat the
answer will tend to place the witness In
"Further than thlM, we are of opinlm ■
that tiie danger to be apprehended must be §
real and appreciable, with'referenoe to the *
ordinary operation of law in the ordinary
course of things, — not a danger of an
imaginary and unsubstantial character,
having reference to some extraordinary and
barely possible contingency, ao improbable
that no reasonable man would suffer it to
Influenoe his conduct. We think that a
merely remote and naked poSBihility, out
of the ordinary course of law and such as
no reasonable man would be affected by,
should not be suffered to obstruct the ad>
miniatration of Justice. Hie object of the
law la to afford to a party, called upon to
give evidence in a proceeding Inter alioa,
protection against being brought t)y meana
of hia own evidence within the penalties of
the law. But it would be to convert a
aalutary protection into a meana of abuse
If it were to be held that a mere imaginary
poesibili^ of danger, however remote and
improbable, was sufficient to justify the
withholding of evidence easenlJal to the
ends of juatlee."
The statement of the law In Beg. v. Boyea
was expressly approved by all the judges
in Ex parte KeynoMs (1882) L. B. ZO Ch.
Div. 294, 61 L. J. Ch. N. S. 7B8, 46 L. T.
N. S. 608, 30 Week. Sep, 661, 46 J. P. 633.
Similar announcements of it may be foond
in Ex parte Irvine, 74 Fed. 964, 960; Ward
V. State, 2 Mo. 120, 122, 22 Am. Deo. 449;
Ex parte Buakett, 106 Ifo. 602, 608, 14
A^^OOglC
lilt.
WSSTSBN on. RKFININO 00. t. LIPSCOMB. 023
(IH O. B. MO
WE8TEBN OIL R&FIKINa COMFAKT,
Plff. in Err,
ULA. 40T, 2T Am. St Hep. STS, 17 S. W.
783, 0 Am. Crim. Rep. 764.
^B general rule under whldi tb« trUI
Judge mnat determine each claim accord-
big to Ita own particular elreiunsUneea, we
thinli^ ia Indicated with adequate certaint;
fa tlie above-cited, oplniona. Ordinarily, he
ia In much better position to appreciate the
easential facta than as appellate court can
hold, and he muit be permitted to exeretae
■ome discretion, fructified bj common
■eniei wlien dealing with thla neecaaaril;
difficult subject Unleu there baa been
a distinct denial of a right guaranteed, we
ought not to interfere,
Jn the present case the wltneeaee eertaln-
e if were not relieved from answering neie-
r Ij because they declared* that lo to do
might incriminate them, ^e wtidom of
the rule in tliii r^ard la well illustrated
1^ the enforced aniwer, "I don't know,"
giTati by Mason to the second questlMi,
after be had refused to reply u)ider a claim
mt eonatttuticmal prlvilega.
No suggestion la mads that It is Brimi-
■al in Alaaka to sit at ■ tabU whare ourda
are being played, or to join in anch game
imlesa played for something of Talue. Hie
relevant itatntory provision la S S038,
Compiled Lawi at Alaska 10IS, eopled In
tbe margin.^
The court below evidently thought nei-
ther witness had reasonable cauaa to ^-
prahend danger ta himself from a direct
aaawer t« any question propounded, and,
la the eimunataacea diaelosed, we cannot
•ay he readied an erroneoua Mmelnslon.
Separate errors are also assigned to the
trial court's action in permitting counsel
to introduce two doeumeuta in evidenca;
bvt we think the points are without anb-
atantial merit
The judgment under review Is afflrmed.
t "Sec 2032. That each and every person
who shall deal, play, or carry on, open or
eau«e to be opened, or who shall conduct
^ther as owner, proprietor or employee,
whether for hire or not, any game of
faro, monte, roulette, rouge-et-noIr, lansque-
net rondo, vingt-un, twenty-one, poker, draw
poker, brag, bluff, thaw, craps, or any bank-
ing or other game played w1t}i cards, dice,
or any other device, whether the ssjne shall
be played for money, checks, credit or any
other representative of valu^ shall be guilty
af a misdemeanor, and upon conviction
thereof shall be punished by a fine of not
more than $500, and thaJl be imprisoned in
tlie county jail until such fine and costs are
paid; Provided, That such person so con-
victs shall be imprisoned one day for every
92 of auch fine and costs: And provided
further. That such imprisonment snail not
SKceed one year."
A. W. LIPSCOMB, Cl«rk, eto.
ComoESCE 4=940(2) — SrAm Taxatioh—
FOREIQN OOBPOBATIOM — CoNTIRirOfW
SBIFUnT— IiOOAI. l^A.ITSFORTl.TIOIf.
A foreign corporation whtcb shipped
Into the state a tank car of oil and a cai^
necessary to fill orders from two towns in
the state, whicb had beai taken by a travel-
ing salesman, billing the cars to one town,
at which the orders from there were to be
and were filled, and then rebilling auch
c«TB to the other town, where the ordera
from that place oould be and were filled,^
could not M subjected to a privilege tax
without violating the oommerce clause of
the Federal Constitution, the Intoastate
tranqiortation being both In fact and !■
law a eottneoted part of a continuous inter-
state movement.
[Bd. Nata.— For other oaaM,
Cut Die H », 10.1
[No. 108.]
State of Tenneaaee to review a Judg-
ment which reveraed a judgment ot t^e Cir-
cuit Court of Maury Conn^, in that stat^
for the reoovary back bj a foreign corpora-
tion of a privilege tax whldi was assarted
to be a t«x upon Interstate commeree. B»
The facta are stated In the oplnltm.
Messrs. Honry OU7 Tmo and A. L.
Dorsey tor plaintiff in wtror.
Mr. Frank M. TbompaoD for dafeadant
* Mr, Jiutioa Tan Daranleir delivered the *
opinion of the court;
This was a suit by on Indiana ocwporation
to recover money paid under protest aa an
occupatlMi or privilege tax In Tenneeaea.
The plaintiS had an oil refinery In IlUnoia
and a steel barrel factory In Indiana, and
was selling the products of Its refinery and
factory upon ordera taken by traveling
salesmen in Its empky. For the purpose of
filling ordera so taken In Maury county,
Tennessee, It shipped into that county from
its refinery a tank car of oil and from ita
factory a ear af steel barrels. Both cars
were billed to the plaintiff at ColumUa, In
that coun^, and, after the orders from that
place were filled, were rabilled to the plain-
tlfl: at Mount Pleasant, in the same county,
where the orders from the latter place were
filled. At both places the oidera were filled
directly from the cara by a traveling agent
le topic * KET-NOHBBS m all K*r-HBmb«rad Dl««ata A ledexM
««
n 8UFKEUX OOURT REPOBTEB.
Oct. Teem,
of Uie plaintiff uid Um pnroIiAM priM waa
esUected At the time, — this being what w»a
eontempUted when the orders were taken.
U the order was for both oil uid turrela,
the oil was drawn out of the tank c&r Into
the barrels and the two were jointly de-
liTered; and If oil alone waa ordered, it was
drawn from the tank ear into I>arreli other-
wise provided by the bUTer. When the cars
were originally ablpped they cwitained just
the quantity of oil and the number of bar-
rels required to fill the orders from the two
places, and the plaintiff intended that they
ihould remain at Columbia only long enough
to All the ordera from that place and then
ahould be sent to Monnt Pleasant, to the
ordera from that place could also be lllled.
T^^e quantity of oil and the number of bar-
rels required to fill the ordera Irom Mount
3 Pleasant were in the ears continuously from
f the time of the original shipment'untll the
cftTs reached that place. Hie plaintiff had
no office or local agmt In Tennessee, nor
any oil dq»ot, storage tank, or warehouse
In that sUte.
The ttatnte, chap. 4T&, Acta 1909, g 4.
under which the tax was exacted and paid,
provides :
"Each and erery person, Arm, partner-
ahip, corporation, or local agent haring oil
dqiota, atorage tanks or warehouses for the
purpose of selliug, delivering, or distribut-
ing oil of any description, and each and
every person, firm, partnerabip, corporation,
or loeal agent using a railroad csr or rUI-
road depots for such purpose^ shall pay a
privilege tax as follows."
The objection made to the tax, as t4)plled
in the circumstances stated, wkb that it
was a tax upon interstate commerce and
therefore violative of the commerce clanae
d the Constitution. In the county court
judgment was given for plaintiff, and this
was reversed by the supreme court of the
state, which held, first, that what was done
up to and including the filling of the orders
from Columbia was interstate commerce,
and the state eonid not exact a privilege
tax therefor consistently with the commerce
clause of the Constitution (see Western Oil
Ref. Co. V. Dalton, 131 Tenn. 32B, 174 8. W.
1138), and, second, that what waa done
thereafter — rebilling and forwarding the
ears from Columbia to Monnt Pleasant and
tlien filling the orders from that p1a<
was intrastate commerce and afforded an
adequate baala for exacting the tax.
Of the first part of the decision it is
enough to aay it Is supported bv a long
line of adjudicated cases in this court,
among them being thesei Caldwell v. North
Carolina, 187 U. 8. 822, 47 L. ed. 33e, 23
Sup. Ct. Rep. 229; Dozler v. Alabama, 218
V. B. 124, 64 L. ed. 995, 28 L.RA.(N.8.)
2S4, 30 Buf. CL Rep. 049; Crenshaw w.
Arkonsu, 227 U. 8. 389, 57 L. ed. 566, SZ
Sup. Ct. Rep. 294; Stewart v. Michigan, 238
U. S. Ses, SB L. ed. 766, 84 Sup. Ct. Sep.
476.
In the second part of the decision w«
think the court erred. Unlike Gulf, C. fc
S. P. R. Co. V. Texas, 204 U. 8. 403. 51 L..
ed. 540, 27 Sup. Ct. Rep. 3S0, this is not aj
case where, at the time of the*orIginal bill-*
ing, the shipper had no purpose to continna
the transportation beyond the desttnatioii
then indicated; nor is it a suit, as was that,
to penalize a carrier which rightly oon-
formed its actiMi to what was said in the
bill of lading. On the contrary, it la &
case where the shipper intended from tlt«
beginning that the transportation should be
continued beyond the destination originally
indicated, and where there is nothing which
requires that decisive effect be given to the
bill of lading. Ordinarily the question
whether particular commerce is interstate
or intrastate is determined by what is ac-
tually done, and not by any mere billing or
plurality of carriera, and where commodittea
are In tact destined from one atate to an-
other, a rebilling <x reahipment en routa
does not of Itaelf break the continuity of
the movement or require that any part b«
classified differently from the remainder.
As this court often has said, it is the eaaen-
tiftl character of the commerce, not the ao-
cident of local or through bills of lading,
tliat is decisive. Southern P. Terminal Co.
V. Interstate Cmnmerce Conunisaion, 210 V.
S. 409, 66 L. ed. SIO, 31 Sup. Ct Rep. 279;
Railroad Commission v. Worthington, 22S
U, B. 101, 50 L. ed. 1004, 32 Sup. Ct. Rep.
653; Texas 4 N, 0. K. Co. v. Sabine Tram
Co. 227 U. S. Ill, B7 L. ed. 442, 33 Sup. Ct.
Rep. 229; Railroad Commission v. Texas *
P. R. Co. 229 U. S. 336, 57 L. ed. 1215, 3»
Sup. Ct. Rep. 837; Chicago, M. k St. P. B.
Co. T. Iowa, 233 U. S. 334. 343, 58 L. ed.
088, 902, 34 Sup. Ct Rep. 692; South Cov
ington ft C. Street R. Co. v. Covington, 235
U. S. 637, 645, 59 L. ed. 350, 353, L.R.A.
1915F, 7B2. P.U.R.19ISA, 231, 35 Sup. Ct.
Rep. 158.
Here, when the cars were started from
Illinois and Indiana, It was intended t^ the
shipper, as la expressly conceded, that they
should be taken to Columbia, Tennessee^
where a portion — a definite portion — of the
contents of each waa to be taken out anA
delivered, and that the cars, with the re-
mainder of the contents, sbouid proceed
to Mount Pleasant in the same state; and
this is what actually was done. Colum-
bia was the destination of only a part of
the merchandise, not of all. Ae to parti g
it was merely the place of a temporary stop §
en route. lie'original blUing to Columbia *
,A_iOOglC
itu.
CHICAGO U. k ST. P. R. 00. t. UNITED STATES.
aad tha raUlling from tliere to Hoimt Fleu-
kat op«nt«d In the wine waj u would bd
ori^Bl billing to Mount Pleasajit, with the
^ivilege of stopping en route at Columbia
to dsliver a pijrt of the merchADdlsa. Tn-
AttA, It la stipulated that the reason (or
not billing the ears through to Mount Pleas-
ant In this way was because the carrlo'e
receiving the shlpmetitB "would not allow
■ueh k stop-OTer privilegt^ though the saine
ia allowed on nearly erei7 other kind of
shipment." Certainly the transportation of
Ui« merchandise destined to Mount Pleasant
was not completed when it reached Colum-
Ua; nor was the continnity of its movement
broken by Ita temporary stop at that place.
As to that merchandise the jounur to Col-
umbia and the Journey from there to Mount
Pleasant were not independent, each of the
other, but in fact and In l^al contemplation
were connected parts of a continuing intor-
■tat« movement to the latter place.
It results that the tax wa« imposed for
ekirying on interstate commerce^ and so was
npngnant to the Constitution and void.
Judgment reversed.
The CBixr Jitbtioc dissents, being of
•pinion that the ease Is controlled by May
▼. New Orleans, 178 U. B. 486. M L. ed.
116S, 20 Sup. Ct. Kep. BT6.
(IM V. a. 851)
CHICAOO, MILWAUKEE, ft 6T. PAUL
RAILWAY COMPANY OF IDAHO,
Appt,
UNITED STATES-
PuBLio Lahdb «=>92— Railboad Rioht of
Wat— FoBjEST Reserve — "Lands Spb-
OXALLY RKSBBVED FROM SALE."
1. X*DdB in the forest reserve are ex-
eepted from the grant in the Act of Mareli
S, 1875 (18 SUt. at L. 482, chap. 1G2, Contp.
Stat. ISie, g 4021], of a right of way for
railroads over the public lands, by the pro-
Tislon of S 6> declaring that the act soall
not apply to "any miliary, park, or Indian
reservation or other lands specially reserved
from sale."
[BkL Not*.— For cither eue*. ••• Pabllo Lands.
oent. Die. gi no-m.)
Pdbuo Lands ^=92— Raitaoad Riqbtof
Wat— TEVPonABT WrrHOXAWAii foS Fob-
car Bbsebvx.
2. The temporary withdrawal by tie
OnnmiBSioner of the General Land Office,
Tmder the direction of the Secretary of the
Interior, of a tract of public land with a
view to the creation of a permanent forest
reserve, under the Act of March 3, ISQl t2D
Btat. at L. 1095, chap. 581, Comp. Btat.
1916, § 6iei), 5 24, if, after further exam-
ination, tliat should receive the Preaident'e
approval, was as much an obstacle to the
acquisition of a railroad rl^ht of way over
euch lands under the Act of March 3, 1875
(IS Stat, at L. 482, chap. 1G2, Comp. Stat.
lOlS, i 4021 ) , g e, excepting military, park,
or Indian reBervation, or '^ther lands ap^
cially reserved from sale" from its provi<
sions granting railroad rights of wty over
the public lands, as was the permanent re-
serve thereafter created by proclamation of
the President. The power to establish the
reserve included the power to make the
temporary withdrawal, and the act of
the Secretary of the Interior In directing tJie
latter was, in legal contemplation, the act
of the President.
tSd. Not*.— ror other easts, ess Pnblla lisnda.
Caot. Oil. if 17e-m.]
FuBuc Laadb ^302— Railkoad Right or
Wat— Forest Resebvb -- Necessitt or
Affbovai. bt Intebior Depabtmekt.
3. Only through the approval of the
Secretary of the Interior can the right of
way for a railroad through the forest r^
serve be acquired without further action by
Ccmgress, in view of the exception in the
Act of March 8, 187S (18 Stat, at L. 482,
chap. 1G2, Comp. Stat. IBlfl, j 4D2I), of
military, park, or Indian reservation, "or
other lands specially reserved from sale"
from the general provisions of that act,
grantlnff railroad rights of way over the
public lande, and of the provision in th«
Act of March S, 1B&9 [30 Stat, at L. 1233,
che^. 427, Comp. Stat lOlS, § 4045), that
in tho form provided by existing law the
Secretary of the Interior may file and ap-
prove surveys and plats of any right of way
for a railroad over and across any forest
reservation when, in his judgment, the pub-
lic interests will not be injurioualy affected
thereby.
[Ed. Note.— For otbsr cshs^ bss Pnbllo L-aada,
CsDt. Dig. II 77E-tta.1
PuBuo Lands C=s92— Railboao Rioht or
Wat— Co N TEA CTB— BSFOBCKMBS T.
4. A railroad company which haa
availed itself of advance permission t» con-
struct its road through a forest reserve,
granted by the Forest Office on the faith of
the written promise of its representative on
its behalf to execute a stipulation to be
prescribed by the Forester, to be as nearly
as practicable like those previously executed
by it in respect to its railroad m another
forest reserve, is not only bound by such
promise, but must execute the required stip-
ulation or discontinue the construction and
operation of its road in Uie reserve.
[Kd. Not«.— Far othsr casN^ MS Public Lands,
Cant. Dig. ii £T£-K2.]
Public Lands 4=392— Railboad Riqht of
W AT— E Q UIXT— JUBlBDlcn ON .
5. Equity has jurisdiction ot a suit by
the United States to enjoin a railway com-
pany from constructing and operating its
railroad through a national forest reserve
unless it executes and files with the Secre-
tary of the Interior a stipulation, as ro-
quired by that officer, in accordance with
an agrepment entered Into by a representa-
tive of the railway company on its behalf,
and to obtain damages for timber destroyed
and injury done in the course of construc-
tion snd operation of snch rnilroad.
IKd. Nets.— For other cases, «•• PuhUo I^ada.
Cent. DlJt. il H1-«J
le topic A KET-NUIfBSR In all Ker-N umbered Dlgasts A Indexes
S7 SUPREME OOUm REPOSIEB.
Got. Tbm,
DQorrY •S3>148(!Q— Plbadihq— MuiATTABi'
6. A bill filed hj the United BUtm to
enjoin k itilvaj eompanj from conitruet-
ing or operating ite railroad UirouKh a na-
UonAl forest reeerre unleai it execute« utd
fllea wltli the Secretary of the Interior »
■tipulation, as required bj that ofB^er, in
accordance with au agreement entered into
hj a, repreeentative of the railway company
<m ita Mhalf, and to obtain damages for
timber destroyed and injury done in the
eonrae of conitruction and operation of
•ucli railroad, is not multifarious.
[Bd. Note.— rar otlur cMo, MS BkinltT, Cent.
[No. 176.]
Argued AprU 18 and 19, 1917.
June 4, 1917.
APPEAL from the United States Ciriniit
Court of Appeals for the Ninth Clrcnit
to review a decree which affirmed a decree
(rf the District Court for the District of
Idaho in favor of the United States in a
milt to enjoin a railway company from con-
•tmcting or operating Its road through a
national forest reeerve unless it ezecutes
and files witli Ote Secretary of tlw Interior
a stipulation required by tiiat officer, and
to obtain damages tor timber eut and de-
stroyed and injury done in the courM of
tbt construction and iteration of suoh road.
Affirmed.
See same case below, 134 0. 0. A. 84, 218
Fad. 2SB.
The faats an stated In the oplni<Hi.
Uessis. F. M. Dudley and H. H. Field
for appellant.
Aaeiatant Attorney Oaeral Keartnl and
H Ur. W. W. Dyar for appellea,
* 'Ur. Justice Tan Derantar dalivered tlie
opinion of the court:
Tliia is a suit by the United States to
enjoin a railroad company from oonstruct-
ing or operating ita railroad throngh a
national forest reserve in Idaho unless it
executes and files with the Secretary of the
Interior a stipulation required by that
n officer, and to obtain damages for timber
H eut and destroyed and Injury done in the
• oourse*of the construction and operation of
•uch railroad. In the district court (207
Fed, 164) and In the ^eult court of ap-
peals (134 C. C. A. S4, 218 Fed. 288), the
govenim^it prevailed. He railroad com-
pany prosecutca this appeal.
The forest reserve had Ita Inception in
an order by the Commissioner of the Gen-
eral Land Office, made March 21, IQOS, tem-
porarily withdrawing a large body of
public lands from all disposal, save under
the mineral land laws. The order was
' Interior witb a Tiew to file creation of ft
permanent forest reserve, under S 84 of
the Act of March 3, 1801, chap. 681, 28
Stat, at U 1090, Comp. Stat. 1910, S 5121,
It, after further examination, that should
receive the President's ^tprovaL Hie per-
manent reserve was created KoTember 0,
1906, by a |»v>clamation of the Presidant-
Between the temporary withdrawal and th«
President's proclamation the railroad com-
pany waa Incorporated under the laws of
Idaho, and Sled with the Secretary of tha
Interior a copy ot its articles of incorpo-
ration and due proofs of its organizatJOB.
During the same period it also filed in the
local land office a map or profile of ita
proposed railroad through the reserve, and
after the President's proclamation it filed
in that office a second and then a tiiird
map. The line of the proposed road shown
upon the second map differed widely frma
that upon the first, and the line shown upon
the third differed materially from those
upon the others. The first and aeemd
maps, neither of which had been ^i-
proved, ware returned to the omnpany as
superseded by the third. It was filed Ma/
10, 1907. At that time, as also before anj
map was filed, the r^^ulationa governing
applications for railroad rights of way in
forest reserves required the applicant to
enter Into a stipulation respecting the ua*
and enjoyment ot the prlvll^e, the preven-
tion of forest fires, the compensation to
be made for timber cut or destroyed, and
the dn^ of the company to pay for any^
injmT otherwise done to the reaerv«b 32 g
l4uid Dee. 481; 84*Land Dee. 683. One*
provision in the regulations said: "No oon-
structlon san be allowed on a reservatioa
until an applieation for right of way has
been regularly filed In accordanoe with the
lawa of the United States and has been
approved by the Departmeiit, or has beett
considered by thia office or the Department,
and permission for such construction haa
been apecificalty given." After filing the
third map the company sought permissioa
from the Forest Office to proceed with the
construction of Its railroad In advance of
the approval of Its map, and to that end ita
authorized representative, Mr, Oeorge B.
Peck, In Ito behalf, signed and filed in the
Forest Office the following memorandum:
"Whereas, the Chicago, Milwaukee, k St
Paul Railway Company of Idaho derirea
inunediato permiaslon from the Forest Serr-
iea to begin constmction of the company's
railroad in the Cceur d'AIena National For-
est, Idaho, I herel>y promise snd agree
on behalf of the company that It will axa-
cuto and shlde ij stipulation and eondl*
tltms to be prescribed by the Forester In
made by direction of the Secretary ot the respect to said railrxiadi taeh stipnlati(»
M SM Mine topic * KST-KUUBBR In all Ktj-Hvabtni OltMts * Indax
A-iOO^IC
Ulft
amCAGO, U. * ST. p. B. 00. T. UmTBD ffTATEB.
ami MmdlUoui to ke m nearly u prmett-
«ibl* Uk« thOM ncecutod by the eompany
<n JM11U17 18, ISOT, In rMpeet to ito
nUrcwd witUa th* Hsleiw KftUonal Tontt,
UoDtaaft."
Tha FoFMtor wroto upon the memoran-
dsm, ABd tigned, ml Indonement, •ajring:
"Approved and edvuice permiMirai given
U oonBtnict, nibject to ntifleation hereof
hy the eompany." At the tame time a tele-
gram waa Mnt to the auperrlior «f the re-
■erve. Baying: "Advance permlaiictt given
to-day St. Paul Railroad Oompaaj to om-
■tmttt railroad through CoBur d'AIene, (Ob-
ject otual atipulation*. Snpervlie clearing
and piling and ecaie all tinber out."
There waa no ezpreea ratification of the
Peck metnorandnm, but ihortly after it waa
made the company entered upon the re-
jjeerre and actively proceeded with ttie aon-
gatruction of Ita road, which it would not
* have beea • permitted to do without the
memoraQdum. Not unUl the work had
IHWMeded for some montha was there any
indication that the memorandum waa not
■atiifactory to the company. It then de-
elined to ezeento the atipulatioa called for
by the memorandum and aaiigned aa a
reaaon that Ur. Peck had aoted upon the
mistaken belief that the Prealdmt'a proola-
mation creating the permanent reaove pre-
eeded the filing of the flrat map, when in
fact the map waa filed before the proclama-
tion waa Isaued, and that the execution of
■nch a itipnlation aa waa called for by
the memoTandum waa indiapenaable, when,
aa the company asaerted. It waa entitled,
trader the Act of March S, 1875, infra, to
a ri^t of way through Uie reserve without
■ntoring into any atipulatioa or asienting
to any conditions. But the ofBcers of the
Foreit Servioa ineiated, with the full aauc-
tion of the Secretary of the Interior and of
the Secretary of Agriculture, that the
atipnlatioD be executed, and that without
it the company waa not a&titled to pro-
Mad, ^ia resulted in a confaranee at
irtiit^ the company particularly requeated
that Ita conatmotion work be not disturbed,
and aasented to an arrangement for further
negotiations, or. If need be, a "friendly
lawsuit." Further n^otiationi failed and
the present suit followed. When it waa be-
gan the road through the reserve was near-
ly completed and was in operation, the oon-
■tmetion being on the line shown on the
thlid map. Approval had not been given
to thia map, but had beai withheld, await-
ing the company's ezeeution of Uie pre-
scribed etipuUtion.
"Dm district court, after eoncluding and
announeing that the company was bound
by the Peck memorandum and that the gov-
anunent was entitled to a decree^ gave tha
partlaa an o^portuni^ to agree upon tha
form of stipulation called for by that memo-
randum, and then poitponed the assessment
of damagat aa a matter which might be.
affected materially by tha terms of tha g
stipulation. Afterward the partiea brought *
into court a form of stipulation, which they
agreed was what was required by the Peck
memorandum, and that form waa adopted
by the oourt, with the addition only of a
paragraph declaring that the stipulation
should be deemed to have been executed as
of Hay 10, 1907, which waa the dato of the
Pack menorasdum, of the permiasion to
proceed with the eonatruction, and of tiia
filing of the map according to which the
road waa coDStructed.
Kighto of way for railroads over lands
of the United States were granted only by
special acU until Uarcb 3, 1875, when Con-
greas enacted a general law upon the sub-
ject and confided its administration to the
Land Department. Ch^. 1G2, IB BUk at
I.. 482, Comp. SUt. 1916, | 4S21. But
that law, by ito 6th aeetion, waa declared
to be inapplicabia to "any military, park, or
Indian reservation, or Other lands specially
reserved from sale." Lands in a forest re-
serve not only are specially leserved from
sale, but, like those in the reservationa par-
ticularly named, are aet apart for a public
purpose. Act June 4, 18B7, chap. 2, 80
SUt. at L. 84-«e, Comp. Stot. 1916, |S
SIZ^SIU. That they eome within the ox-
cepting provision of the Gth section, as do
lands in other public reservations, is plain.
Both Congress and the Land D^artment
have so regarded them. House Beport No.
1212, S4th Cong. Ist Scm.; House Report
No. 1780, SEth C<nig. 3d Bess.; Re Brain-
ard ft N. M. R. Co. 29 I«nd Dec 8S7.
Thua the company neither did nor could
acquire a right of way over theae lands
under the Law of lS7fi. And this is true
notwithstonding the preliminary steps
taken, as before redted, in advance of the
creation of tha pennanent reaerve. The
temporary withdrawal was made several
montha before any of those steps were
taken, — indeed, before the company came
into ezlstonee, — and remained in force until
the permanent reserve waa created. While
the withdrawal was in force It waa as much
of an obstacle to the acquisition of a rall-a
road right of way ow'these lands as was?
the pennanent reserve thereaftor. Ilia
power to eatabliah the reaerve included the
power to make the temporary withdrawal,
and the act of the Secretary of the Interior
in directing the latter was, In legal con-
templation, the act of the President. Unit-
ed BUtes V. Morrison, 840 U. S. IBS, 212,
60 L. ed. 699, 608, 10 Sup. Ct. Rep. 826;
vniooz V. Jackaon, IS Pet 4B8, 512, SU,
S7 SDPBBMB OOUBT BEPOBTES.
Oor. 1
10 L. ed. 2M, 271, 272; WoUay ». Chap-
Bsn, 101 U. S. 705, 7M, 770, 2S U td. BIS,
#20, &21.
We come, then, to the proviaion 1b the
Appropriation Act of Match S, 1809, ehkp.
427, 30 Stat, at L. 1233, Comp. SUt.
JSIO, I 4946, which laji:
"That in the form prorfded bj eiiatlng
law the SacretarjF of the Interior may file
and approve ■urvejv and plata of asj right
of way lor a wagon load, railrcMd,
other highway orer and acroea any foteat
reservation or reeerroir alte when In his
judgment the public Intereata wUl not be
injuriously affected thereby."
Doubtless if this provision were s
rately conaidered, its purpose would Mam
obacuie; but it must be coDaidsred in con-
nection with the Law of 18TS and the rul-
ings thereunder, and when thia ia done it*
purpose Bcema reasonably plain. That law,
by its let section, provides In general terms
for rights of way for railroads over public
Unds. By Its 4th aeeUon it deals with
the identification of the deeired right of
way by a survey and plat, and provides for
filing the plat, and aecuriDg Ita approval
by the Secretary of the Interior. By its
6th section, as haa been seen, It excepts
forest and other reservations from its opera-
tion. Because of this exception the Secre-
tary of the Interior was ruling — properly
wo, aa we think — that his authority did not
extend to receiving and approving surveys
and plate of rights of way in forest re-
serves. And so, to obtain such a ri^t of
way it was necessary to go to Congress.
The requests for special acts came to be
frequent, especially as the reserves were In-
creasing in number. In this situation Con-
gress passed the provision last quoted. It
in is a general and continuing provision, and
% says, in substance, that rights of way
■ railroads* through forest reservea may be
secured when, and only when, the public
interests will not be injuriously afTected,
and it commits the solution of that ques-
tion to the Secretary of the Interior. If
"in his judgment" the public interests will
not be jeopardized, he "may file and ap-
prove" surveys and plats of any such right
of way. In short, he Is invested with a
large measure of discreijon to be exercised
for the conservation of the publie interests,
and only through his approval can the
right of way be acquired without further
action by Congress,
Here the Secretary made it mani
through the regulations before noticed and
otherwise, that, in his judgment, due
gard for the public interests required that
a stipulation, such as was described in
Feeic memorandum, be exscted of the i
pany M a condition to Uie approval sf the
survey and map, — that is, t« securing the
right of way. Rightly understanding that
this was so, Hr. Peck, the company's repre-
sentative, promised on Its behalf that It
would comply with that condition. Tlia
promise was given for tiie purpose of secur>
ing permission to proceed at once with tha
construction of the road, and on the failb
of ths promlaa the permission was given.
While this was said to he subject to the
company's ratlfloation, it must be held upon
this record that there was an implied ratifl-
cation. He company promptly availed it-
self of the permissiou and proceeded with
the worli: of construction. Th» elrcnm*
stances were such that it must have known
how the permission was obtained. It waa
largely benefited thereby and to these bene-
fiU It ever ainca has held fast True, after
■oms months had elapsed it manifested a
purpose to disaSlrm Mr. Feck's promise
but that was after the implied ratification
and after the construction had proceeded
so far that restoration of tht original
situation was ni>t possible.
It follows that tlie company not only la
bound by the Peck memorandum, bnt Is Ing
a position where It must*execute the r«-*
quired stipulation or discontinue ths eon*
struction and operation of its railroad in
the reserve.
It is objected that ths case is not <nw
which is cognizable In a court of equity
and that the bill is multifarious. Both
branches of the objection are without
merit, — so plainly so that a discussion of
them would serve no purpose.
The assessment of the damages is called
in question, but without any good reason.
The stipulation agreed upon as conforming
to the Peck memorandum was rightly re-
garded as decisive of several of the quea-
tions hearing upon the assessment, and iw
reason is perceived for disturbing the con>
curring decisions below upon the others.
The decree unconditionally commands tha
execution and filing of the prescribed stipu-
lation without awarding an alternative In-
junction, and counsel for the government
suggest that It should have enjoined tha
company from the further occupation ol
the reserve unless^ within a prescribed
time, ths stipulation be executed and filed.
The criticism Is not without merit, and
doubtless is prompted by a careful study
of the bill. But, aa the government haa
not appealed and the company is not conk-
plaining of the failure to put the matter
in the alternative, the point may b* pasaad
without further notice.
Decree affirmed.
,A_^OOglC
1918.
0M D. a. t2SJ
XBIE RAIUtOAD OOUPANT, PUT. In
KKIB K. 00. V. PURUCEIB.
Tbul «=>2S3(9}— Rbquxsted Ijtsnvonon
—ASBTJilKD RISK — EinPLOISBS' LlABmiT.
1. A requested cli&rge in ut aotlon
■gainst A railway company to reoovar for
tiia death of % aection man who was run
over bj ui engine while on hi» waj to report
for work, that if, for hia own convenience, he
Toluntaril; went (.long the tracks of the rail-
road, and this railroad waa being at the timg
used and operated as a highway of intor-
atate commerce, be aseumed ths risk and
danger of so using tfae tracks, — was proper-
ly refused, where such request f^led to call
attention to the circumstances under which
the teBtimony tended to show he was using
the tracks at the tima, and the knowledge
of conditions which shoold have been taken
into consideration In order to attribute as-
Bumption of risk to him, and failed to tak*
into account the undisputed testimony thai
the engine ran Into Mm without signal or
Ndta.— For Dth*r e
, as* Trial. 0«at
Mastxb ahd Sebvakt «=>28(H1)— Teux—
RsOTTESTED iNffraucnoiT— AflBHintD Risk.
2, The trial court properly refused a re-
Sieited instruction, in an action against an
terstato railway carrier to recover for th«
death of a section man who was ran over by
an engine on his way to report for work,
thst if, in the getting off from the track on
which he saw a train approaching, he oould,
with safety and reasonable conrenience, have
•tapped away from the tracks, and by hia
•wn choice stepped on » parallel track and
was struck by a train on that track, ha as-
■umed the ri^ of such cholea. Such raqoMt
did not cover the elements of assumed risk,
and vras more properly applicable to tha
defense of contributory negligence.
[Ed. Note.— For olhsr cues, ■•• Master
B^rvant, Cent. Dig. » 11S8, UB», U7».]
[No. 211.]
IN EEROR to the Conrt of Appeals of
Richland County In the State of Ohio to
review a judgment which affirmed a judg-
ment of the Court of Common Pleas of that
county in favor of plaintiff in a personal-
injury action brought by a section man
against an interstate railway company. Af-
The facta are stated in the opinion.
1 Death of Byron B. Marietta, the defend-
ant in error herein, suggested, and the ap-
pearance of Evelyn J. Purucker, adminis-
tratrix, as the party defendant in error
herein, filed and entered October D, IDIO, on
motion of Mr. N. U. Wolfe, in behalf of
counsel for the defendant in error.
Uessrs. O. R. HaBriiI« nAV.iL Wolfi
for plaintiff In error.
Ur. W. S. Kerr tor defendant in error, h
8
Ur. Justice Daj delivered tha oplnloa id*
the court:
Byron B. Marlotta brongfat tUi suit
against the Erie Railroad Company, t« r»
cover damages for injuries allied to have
bem caused to him by the negligeuoe of
the company. He died pending this proceed-
ing In error and the ease was revived in
the name of his administratrix, Itfariettagi
was what Is known as a section man in the^
wnploy of the eompany, and had been such*
for ■ period of about four weeks before the
injury happened. It was his duty to work
on the track of the ««npany whsrsvar di-
rected by the section foreman on the section
extending from Favonia, in Richland coun-
iy, Ohio, westward for a distance of several
miles. The Erie Railroad Company was
engaged fn both interstate and intrastate
commerce. The testimony shows that it
was custwnary for the section foreman to
direct Uarietta where to work and to tell
him on the previous day where to report
for work on the following day. On the day
before the injury was Incurred, he was di-
rected by the foreman to report at a point
on the section about a quarter of a tnilo
east of a certain tower, located upon the
defendant's trade. Sarly on the morning
of the day of the injury, he started from his
reeidenee to report to the foreman accord-
ingly. It appears that at and near th*
place of injury the eompany has a double
track; that the north track is used for
trains going west and the south track for
trains going easti that the plaintiff, in
going to the place designated, went upon
the south track and was walking eastward-
ly, when a passmger train bound east came
upon this track, and to get out of the way
of it he stepped over upon the north or
west-bound track; that while walking on
that track he was struck and run over 1^ an
engine which was srunnlng backward and
in the opposite direction from that in whldl
trains ordinarily ran upon the north track.
This engine had been detached from a train
of ears and after pushing another train up
a grade on the west-bound track was re-
turning to its own train at the time of the
injury. Marietta testified that he had no
warning and did not see the approaching
engine, owing to steam and smoke from the
passenger train, which had just passed up-
on the other track. The engineer and fire-
man of the backing engine testified that
they did not see Marietta until after he was
run over by the engine, and gave no signal
or warning of its approach.
IT Other ca*M les si
IS tople * KBT-KUHBBB in all Ker-Nunbered Dlssala A Index
,A_.OOglC
17 SDPSKISS OOUST RKPOBTER.
Oct. Traic,
• 'nia MM* TCI lironght, aod bj the itate
•ovrt VM tried, onder tliB «Ute Uw. No
•bjection rrrlcwabls In thi< oovat iBToIvea
th* eorrectneM of tka cli&rge of the tri&l
eourt lubmittlng the questiona of n^ligance
•Jid contributory negligence to the jury.
The company brings the cue here because
It contends that It alleged and showed that
It was an interstate railroad, engaged In the
•uriage of freight and passengers between
states, and that ths train of cars from
vrttich the engine which struck Marietta
was detached and to irtileh it was returning
waa engaged In interitate aommerce; that
Inasmuch as he waa a seetlmi man ta track
man, employed to work upon the track of
an interstate railroad, and waa proceeding
to hfs worlc at the time of his Injury, both
partiea were engaged In interstate cominerse
and the Federal BmploTera' liability Act*
applied to the ease, and that tiecanse of the
refusal of the trial court to charge as to
aesiunption of risk, the ctnnpany waa de-
prived ol the benefit of that defense.
The oonrt of appeals treated the case as
one oontrolled l^ the state law, and held
that the Employers' Liability Aot did not
opI^Ti **' i>^ '^ view. Marietta vra* not
engaged at the time of hi* injury in inter-
state commerce, and affirmed the mling of
the trial eourt in reusing the two requests
to charge which are the basis of the assign-
ments of error In thla court, lliese requests
wwe: (1) "If the plaintiff, for his own
conwiienca, Toluntarilj went alMig the
tracks of the railroad, and this railroad
was being at the time nsed and operated as
a highway of interstate conunerce, he as-
snmed the risk and danger of ao using the
tracks; " and (8) "^f the plaintur, In getr
ting off the track on which he saw a train
approaching, could with safe^ and reason-
able oonvenience have stepped to the right
or aouth of such track, and by hla own
^choice stepped on a paralld track and was
g struck t^ a train on aneh parallel track, he
^assumed the risk of inch choice." llie*re-
fusal to give these requests raises the only
Federal question in the case.
Conceding, without deciding, that the
Federal Employers' Liability Act applied
to the circumstances of this case, neverthe-
less the two requests were properly refused.
A request to chaige must be calculated to
give the jury an accurate understanding of
the law having reference to the phase of the
case to which It is applicable. Norfolk &
W. R. Co. V. Earnest, 229 U. S. 115, 119, 67
L. ed. 1008, 1100, Ann. Cas. 1914C, 172, S3
Sup. Ct. Hep. 054. The first request simply
asked a broad charge that if the plaintiff
voluntarily, for his own convenience, went
upon the tracks of the railroad, and the
railroad was at the time being used and
opwatad as a hi^nray of Interstate com-
merce, he assumed the risk and danger of
ao using the tracka This request Moitted
elements essential to make asBumptioo of
risk applicable to the case. It failed to call
attention to the circumstances under which
the testimony tended to show ths plaintiff
was using the tracks at the time, and the
knowledge of conditions which should hav«
been taken into consideration in order to
attribute aasumptlon of risk to him. It
failed to tsike into account the undisputed
testimony that the engine ran into Marietta
without signal or warning to him. Under
such circumstances the injured toan would
not assume the risk attributable to the neg-
ligent operaticMi of the train, if the jury-
found It to be such, unless the consequent
danger was so obvious that an ordinarilj
prudent person in his situation would hava
observed and appreciated it. Chesspeake Jt
O. R. Co. T. De Atley, 241 U. S. 310, 313,
314, SO h. ed. lOie, 1020, 36 Sup. Ct. R^.
SS4; Chesapeake ft O. B. Co. v. Proffltt, 241
U. S, 402, 408, SO L. sd. 1102, 1106, 36 Sup.
Ct. Rep. 620, and eases cited.
The second request pertained to the con-
duct of the plaintiff, in view of the partio-
ular situation, and what he should hava
done to protect his safety, considering hia
danger at the timc^ and is open to the sama ^
objectiona. This request did not cover thaJJ
elementa of assumed risk*and was mora*
properly applicable to the defense of con-
trlbutory negligence, concerning which the
court must be presumed to have given prc^
er instructions to the JUI7,
Affirmed.
(M D. S. OS)
FARMERS IRRIGATION DISTRICT, Wil-
liam Eotden et ai.. Board of Directors <rf
the Farmers Irrigation District, Plffa. In
CoitBTTTCTionAi. Law ^3)290 — Ddx Pbo-
OESS or Law— TAKiNa Pkivatb Pbop-
EBTT WlTHOm COUFXiraATTOH— GOKPUr
una Covarrsaunos or BunaE ovbb la-
iiQATioiT Oaitai..
1. The property of an Irrigation district
incorporated under Neb. Laws 1B05, p. 200,
with the power of eminent domain, was not
taken without compensation, contrary to O.
S. Const. 14th Amend., when the highest
court of the state held that, as one of tha
conditions of this grant of power, it waa
obligated to build a bridge over Ita irriga-
tion canal for the benefit of a purchaser of
the lands on both sides of the canal, al-
though the district had not been obliged t*
exercise the power of eminent domain to
I ownership of •ndi
«S>For other esses aee suna topic A KBT-NUHSKB In sll Kar-Nnmbsred DIgwts * [Ddeiw
•Act April n, DOS, & 1«. K SUt M COomp. at IM. H WW UK). t^iOOQIC
Uia. VABUERS ntBIOAHON DISXaiOT V. HXBRJJSEA IX SMU O'SHKA. eu
MUiftl to A oorpoTation wblak b^ MUMd tho
«uul to be constructed oTsr ukd uiom "''
which It then owned.
rEd. Note.— For otbar cbms, m* Conitltatlonsl
La*. Cant. Dig. t| 8&1. SSI, KS-86Z, BS7-8St.l
OOWBTITDTIOWAI. TjAW «=>243 — WA'
AND WATKX C0DBSE8 «=92ie — BquAL
pBOTzoTioH or TEX Laws— Bbisok ovrs
iRBtaATion Gaitai.
2. On'ner* of irrlgfttion eankli are not
denied the equal pTotMtlon of the Ian*, coo-
tauj to U. 8. Conet. 14th Amoid,, nerelf
beeauee Hiey aie required b* Neb. B«t. Stat.
1D13, g 3438, to build bridge* tor the ben-
eflt of adjacent landownera, white no Buoh
obligation is imposed upon ownere of oanala
oonetructod for other uaea.
[M. Note.— For other cum, m Oonrtitutlonal
Law. Cent. DIs. t 70) : Watara and Watu- Conn-
M. Cant. Dig. i aOG.J
[No. £16.1
IN ERROR to the Supreme Court of tho
State of Nebraslca, to review a judgment
which, reversing a judgment of the Diitriet
Court for Scotte Bluff County, in that itate,
panted a peremptorj writ of mandamua to
Mmpd an Irrigation diitrlet to build a
bridga over it* Irrigation canal for the beu-
«)lt of an adjacent landowner. AfDnned.
ee* eame caae below, 98 Neb. »», L.B^.
U15E, eST, 152 N. W. 372.
The facta are itated in the opinion.
Hr. Fred A. Wright tor pUintlff In er-
• *lfr. Jnatice Day delivered the opinion of
tke court:
Peter O'Shea ftM hto peUtioB In the dia-
trlet court of Scotte Bluff oonn^, Nebraaka,
allefing, among other thingi, that the Farm-
ers Irrigation District U a eorporation or-
gmiMd and existing under and bj virtue of
an act to provide tor the organization and
government of irrigation distriota, and to
provide for acquiring the right of mj to
build irrigation ditchea or canals, and other
property, tor the dividing of eertain por^
tiots of the territory of the state of Nebras-
ka into irrigation districts, and for the pur-
pose of buying irrigating canals already
erastructed, or partially constructed, and
paying for the same; that the Fannera Irri-
gation District is the owner of an irrigation
eanal in Scotts Bluff county, Nebraslca,
which eanal intersects certain described real
Mtate owned by the relator; that tlkat por-
tion of this real estate lying north of the
right ot way of the canal does not abut up-
on^any public highway, nor has the relator
any private way from thla real estate lying
Morth of the canai to any Idghway; that
tho emlj eonveniant way by wlilch the real
estate on the north aide of the canal can be
used with that on tJie south side is to con-
struct a bridge across the caual; that that
portion of the Innd lying south of the canal
abuts upon a public hlghvray, but that por-
tion lying north of the right of way of the
eanal Is completely cut off from any publio
liighway, because of the fact that the canal
forma an impaasable ttarrier unless a bridge^
is constructed over the same; tliat the por-9
tlon of said real estate nortli of aald'canal*
ia a quarter of a mile from the east side of
the same to a public highway, and is also
a distance of a quarter of a mile from the
west side of said real eatate to a publio
highway, and is also a distance of one-half
mile from the north side of the same to a
public highway, without any private way
leading to any highway, and the lands be-
tween the east, west, and north side of said
rsal estate, and the publio highways, are
held in private ownership; that it ia neces-
sary for tlie free and convenient use of the
lands on lx>th sides of the eanal by the own-
er thereof that the owner of tiie eanal erect
a suitable and convenient bridge across the
eanal i that demand has been made upon
the respondents to erect a bridge across the
canal at a point to be Indicated by the re-
lator on these premises, and that respond-
ents have refnsad to erect such bridge; that
the owner of the Remises has no way of
Ingress and egress from that portion of the
proniae* lying north of the right ot way of
the cansl except throng^ the private prop-
erty of others. Wherefore, relator prayed
that an alternative writ of mandamus issns
to the re^Kindents, commanding them forth-
with to erect a suitable and conrenient wag-
on bridge over the canal at a point to be
deaignated by the relator, or to show eaiue
why a peremptory writ of mandamus should
not issue.
The alternative writ of tnandamoa was
issued as prayed for, and ths respondents
thereupon appeared and answered, alleging
that in and prior to tiie year 190B the land
on both aides of the canal waa owned by the
Trt-State Land Company; that said Tri-
State Land Company while the owner of
said land caused an irrigation ditch or canal
to be constructed over and across the sam(^
which irrigation ditch Is the same now
owned by the Farmers Irrigation District,
the Tri-State Land Company originally
being the owner of both the land and tlie
irrigation ditch; that thereafter the Tri-
State Land Company sold and eonv^ed the^
canal together with the right of way to tl
Tiirmera Mutual Canal Company, and "
latter company thereafter aold and cm-
veyed the canal and the right of way to tiia
respondent, the Farmers Irrigation District,
whidi now holds the same; that the Tri-
ithe
0 thei
1 Uie"
■ ■«• aama topic * KBY-NUHBBR In all R«T-Nnmb«r«d Dlcaela * ladsi
A^iOOglC
ST SUFREUB CX)UBT BEFORTSR.
Oct. Tan,
SUta lAad CompABj ttetted Uie parcel of
lajtA lying north ol Um wuJ end tha parcal
Ifiug louth of tha omwI »■ two wpnrate
trkctt ftod paroeU of luids; thftt the Tri-
Gtate Land CMnpany eoiive;^^ theee tractt
at different times and aa eeparate parcela
to the relator, Peter CyShea, and that O'Shea
purchased the landa alter the eonetructton
of the irrigation canal and at different
tlmei as two leparate and diitiaet tracts of
land, divided from, each other \rf the right
of vaj and canal of the Farmeri Mutual
Canal Companj; and that therefore the
righta of the relator, O^hea, are derired
from and through the Tri-State Land Com-
pany, and that he hag no greater or other
right in the premieea than the Tri-SUte
Laud CranpaDy would hare.
The reepondenta for a further defense al-
leged that 1 3438 of the Eevieed Statutes
of the atate of Nebraska for the year 1S13,
which att«npta to confer the right on land-
owners under certain circumstanoea to com-
pel the owners of irrigation canalt to build
bridge! thereover, la -unconstitutional, null,
and void; that said section deprives tha rC'
qiondent, Farmers Irrigation District, of
Its property without due process of law
and deprivea it of equal protection of the
laws, and is class legislation in that it pur-
ports to require the building of certain
bridges only by the owners of irrigation
canals, and does not apply to other canals
of similar nature carrying water, such as
drainage canals and mill races.
The case coming to trial, it was ordered
by the court that a peremptory writ of
mandamus be denied and that the action
be dismissed. Appeal was tali en to the
supreme court of NehraBka, which court re-
versed the judgmcirt and granted a per-
emptory writ of mandamus {68 Neb, 23t),
LJLA.10IGE. 887, 162 N. W. 372), and a
Swrit of error brings the case to this court.
• 'This action was brought under the terms
of S 3438, Revised Statutes of Nebraska,
which reads;
"Any pwBon, company, eorporation, or
association constructing a ditch or canal
through the lauds of any person, cnnpany,
or eorporation having no interest In said
ditch or canal ahall build such ditch or
canal in a substantial manner so as to pre-
vent damage to such land: In all cases
where necessary for the free and conven-
l«it use of lands on both aides of the ditch
or canal by the owner or owners of such
lands, the owner or those in control of
meh ditch shall erect substantial and con-
venient bridges across such canal or ditch,
and they ahall ertct and keep in order auit-
able gates at the point of entrance and axlt
«( pHih ditak through aay tneloMd Add."
It appears from a stipulation bctwem th*
parties to this case that during the year
IQOS the Tri-State Land Company waa the
owner of the lands here involved, and that
during that year it constructed this canal
over ths Isnds; that afterwards, la IMS,
tha canal and right of way were conveyed
to the Farmers Mutual Canal Company,
which company, on the ITth day of Decem-
ber, IS12, conveyed the same to the Farmera
Irrigation District; that on April 25, 1910,
the Tri-State Land Company conveyed to-
O'Shea the parcel of land lying north of
the canal, and on July 14, 1911, tha parcel
of land lying south of tha canal, and that
these are the only conveyances under which
O'Shea claim* title; that at the times off
of these conveyances the canal was fully
completed, and had been in operation k
number of years, tha canal being built M
feet wide on the bottom with a eartying
capacity of at least T feet in depth, and con-
structed by excavating to a depth of about
3 feet in tie ground, and with banks abova
the natural surface of the ground to a
height of about 8 feet, with a slope of }
tol.
The district court of Seotts BIulT conuty.Q
Nebraska, held that the portion of the Und||
occupied by the right ot*way of the irriga-*
tion canal waa never owned by Peter O'^ea,
and for that reason denied his right to ft
writ of mandamus. The supreme court of
Nebraslta held that while the canal wa*
built over the land by the then owner of
the land, nevertheless under the statute it
was tha duty of the present owner of tha
ctinal to build the bridge required by tha
The supreme court of tha state construed
S 3438, Revised Statutes of Nebraska 1913.
as applicable to the situation here presented,
inasmuch as it applies to "all cases," and
held that the fact that the Tri-State Land
Company, when the canal was constructed,
owned the land upon which it was built and
on both ^des of the canal, did not relieve
the Farmers Irrigation District, successor
in title to the Tri-State Land Company in
the ownership of the canal, from the statu*
tory obligation to build the bridge at tba
instance of one who snbsequently purciiaaed
the adjacent lands. There is much diacua-
sion of the meaning of the statute in tha
opinion of the court with which we have
nothing to do upon this wilt of error. ITha
construction of the state statute by tha
Iiighest court of the state la conclusive (■
this court.
The questions here to be decided arlaa
trader the 14th Amendment to the Federal
Constitution, it beliig contended by tlw
plaintiffs in error that the property of tlia
Farmers' IrrigaUen Dlatriot waa takaa Jor
A^iOOglC
MU.
SBIE B. 00. T. SIQNX.
•U
f rivat* tue wltlunit oon^enutlMi, and that
4be statDte, as conatniad hj the atata court,
haa tht affect to deprira It of the equal pro-
teetloii of the law*.
The Farmari Irrigatioa District la Inoor-
parated under a statute (Neb. Lawa 1895,
pp. 2Q0, 277) which give* it the right to
mUrt upon an; land In the diitiiet and to
loeata ilia line for any eanala and necauar;
branchei thereof, and to acquire, either by
puTofaaae or condemnation, all landi and
waters and other property naeeaiary for the
-« eoastniction, use, maintanaace, repair, and
• improvement ot tiie canals and works, land*
for reserroirs lor the storage of water. It
la also given the statutory authority to ae-
qnire by purchase any irrigation ditclie%
canals, or icservoirB already constructed.
Hie supreme court ol Nebraska, conetruiog
this statute a* imposing the obligation to
build bridges for the benefit of adjacent
landowners, and reading the same in con-
nection with the authority conferred upmi
the corporation to ezarelae the right ot
eminent domain, held that the company
nust take the burdens of the legielation
-with its benefits, and that having by ite in-
aorporation accepted the rights conferred
mder the statute of its ereatlon, it must
axerelse them within the limitations and
upon the conditions therein named. In oth-
«r words, it was held that the atate had
aald to the corporation of its own creation;
*^an may have the right to appropriate
ftroperty to the public nse which you are
authorized to serve, hut when the eansls
aonatnicted for that purpose divide land
■o that it is neceasary t« connect the
aeveral portloni thereof by bridges, you
ahall construct them at your own expense."
It is familiar law that a state may impose
conditions, within constitutional limitations,
upon the ezeroise of corporate authority con-
ferred by it The state was not obliged to
eonfer upon this corporation the sovereign
authority to take property by the right of
aminent domain. When it did so, we do
not think it took the property of the cor*
poration without compensation when it alao
bilged the latter to comply with the con-
ditions of this grant of power, one of which
was that it should construct bridges under
the circumatances now presented.
Nor do we think It makei any difference
that the corporation waa not obliged to exer-
«ise the power of eminent domain to obtain
this particular right of way. This right
existed, was conferred by the state, and
migAt be used to construct other portions
^ot the canal for the purposes intended. In
gthla conetruetion and application of the
* hgislatton of the state we are uoable to find
the taking of property without compensa-
tion, as Is contended by the plaintifTs in
As to Uke denial of Iha equal protectim
of the laws, this court has frequently heU
that there is nothing In this provision of
the 14th Amendment to prevent the itates
from reasonable classiflcation of aubjects
for l^islative action. This statute applies
equally to all owners of irrigatitm eanala
Tlia fact that it doea not cmbraoa canals
constmoted for other usea and purpoaes docs
not msJce it ofauoxious to the aqnal pretax
tion clause ot tha 14th Amendment.
It follows that the judgment of the Su-
preme Court of Nebra^ca must be affirmed.
HBNBT U. STONE and CUrk Nobla, Part-
ners Doing Business under the Name of
Stone & Noble.
«=3218(S) — Lnanno Lubo-
ITT— NoTiCK or CLam.
1. A atlpnlatlon in a contract for an
iDteritate Itva-stock shipment conditioning
any liahiltty for damages upon presentation
ol the claim in writing to Uie terminal car-
rier within five days from the time when
the stock was removed from the cars at
destination la, as a matter of law, valid and
reaeonabia
lEM, Note.— For ntbar cseaa; bm Csrrlara Cant
Qts. II m-fiM.]
CaaBTEBs ^=t2180.O) — LnuTiNO IiiAsn^
iTT—AaeBKD Valdk— NoTiCK or Oi.aiit-
FuBusHKD TaaiFn.
2. A shipper of live stock in Interstate
commerce Is bound by atipulatjona in the
bill of lading issued pursuant to the Act
of June SB, IMS (34 BUt. at L. BBS, chap.
3691, Comp. Stat. 1916, S S669), in con-
formity with the carrier's ofBcial tariffs,
class) flcations, and rules duly published and
filed with the Interstate Commerce Commia-
aioD, limiting liability to an agreed value on
which a reduced rate waa baaed, snd con-
ditioning any liftbllity upon the giving of
written notice to the terminal carrier with-
in fire days after the stock was removed
frcm the cars at destination.
[BM. Note.— For otbar rssM. saa CarrUia, Oaat
Dig. 11 G74-SM, HT.1
[No. 8S4.]
Argued May S, 1917.
Deeidad June 4, lfll7.
BForoUiar CI
Crawford County In the atate of Obia
to review a judgment which affirmed a
judgment of the Common Pleas Court of
that county tor the recovery by the shippers
of an interstate shipment of live stock of
the full amount of the damage notwlth>
standing a stipulation in the bill of lading
limiting liability to an agreed value, and
a failure to comply with a provision in anah
bill of lading respecting the preaentation t^ i /->
n SM aam* topic ft KBY-NUHBEIl In all Kar-Numbar«I Dliwta a ladaxw
97 eUPBEUZ COURT BEPORTSB.
Oat. Tmmm,
notlM of elaiiii. Rsrcned ksd roiuuided for
further proceeding*.
The I&cta are atated ia the oplnian.
UeaBTB. Wllllvn E. Caeblns, C. E. Mo-
Bride, And N. M. WoUe for pUlntlif in
•tror.
Ko appearuioe for defendanU In orror.
S
r Mr. Justice Dny delivered tba opinion of
ttie court:
Suit wai brought in the oommiai ploM
oourt of Crawford ooontj, Oiao, bj Stone
and Noble, Jveaent defenduit* in error,
hereinafter designated a« the plain tifts,
agaJTist the Lake Erie & Weatem Bailroad
Company and the present plaintiff in error,
the Erie Bailroad Company, to recover
damages to certain horees abipped under
billa of lading hereinafter referred to.
Plaiutiffa recovered a judgment in the
oourt of original jurlediction, and the same
«aa affirmed b; the court of appeals of
Crawford county, to review which judg-
meot a writ of error brings the case to this
The horses were shipped under a con-
tract designated "Limited-Liability Live-
stock Contract," which was executed in
duplicate on the part of the I«ke Erie &
Western Rsilroad company and the ship-
pers. That contract contained the follow-
ing stipulation:
"That no claim for damages which may
acerue to the said shipper under this con-
tract shall be allowed or paid by the said
carrier, or sued for in any (M)urt by the said
shipper, unless a claim for such loss or
damage shall be made in writing, verified
^by the affidavit of the said shipper or his
jj agent, and delivered to the Erie Rj. agent
■ of satd*carrier at his office in Esst Buffalo,
N. T., within five days from the time said
stock is remored from said car or ears, and
that if any loss or damage occurs upon the
line of a connecting carrier, then such
carrier shall not be liable unless a claim
shall be made in like manner and delivered
In like time to some proper officer or agent
of the carrier on whose lines the loss or io-
jury occurs."
At a trial some four years before ibe one
In which a verdict and judgment were ren-
dered against the Erie Railroad Company,
a verdict and Judgment were rendered In
favor of the Lake Erie ft Western Railroad
Company, and that company is out of the
The suit was tried as to the Erls Rail-
road Company at the February term, IB14,
of the common pleas court of Crawford
county, and ths court charged the jury,
among other things, that It was conceded
that no written claim was filed within five
day* after the shipments respectively ar-
rived at their destinati<m% and submitted
to ths jury the questioa whether this limi-
tation was reasonable. The jury gave »
verdict In favor of ths plaintilfs for a suns
which inclnded the interstate shipments
here involved and ths intrastate shipment
for which » separate causa of action was
stated in ths amended petition. It is this
judgment upon the lump sum which was
affirmed hj ths sourt of appeals of Craw-
ford county.
For a dafusa ths Erie Railroad Com-
pany set up, among other things, that th*
horse* were shippsd under the terms of the
writtsn live-stock contract above referred
to; that this contract contained the re-
quirement of notice already stated and gav*
a ohoiee of two published tariff rates, the
lower one based upon the agreed valuation
of not exceeding $100 for each horse. The
recovery in the case was for the full value
of the horses, and not for the limited-lia-
bility valuation. The answer further set
up that each of the Intarstate shipments ing
question cams into the hands of the Erie^
Railroad 'Company for transportation from*
Ohio to East Buffalo, New Yorki thU iU
ofBcial tariffs, classifications, and rules
applicable to such interstate shipments,
and In print and in force at and during the
t«rm of shipments, were duly filed with tlis
Interstate Commerce Commission, pursuant
to the acts of Congress. At the trial the
Erie Railroad Company put in evidence its
tariff rates, showing the alternative rate
based upon the lower valuation, and the
contract containing the stipulation as to
notice already set forth.
The Federal question here presented Is
whethsr the court was right in leaving to
ths jury the question of the reasonableness
of the requirement that notice should bs
given within five days, and permitting tba
jury. If it found that this limit was nn-
reoHonahle, to give a verdict in excess of
the limited liability contracted for.
His case requires little discussion, as the
principles governing It have been settled by
frequent decisions of this court. We need
not stop to consider whether the require-
ment of the live-stock oontract that a claim
tor damages should be presented within five
days from the tims the stock was removed
from the cars was reasonable or not, for
this question has been answered In favor
of the reasonableness of such stipulation in
ths recent case of Northern P. R. Co. r.
Wall, 241 U. 8. 87, TO L. ed. 905, 80 Sup.
Ot. Rep. 4B3. Bee also St Louis, I. M. ft
8. R. Co. V. Starbird, decided by this court
iw April 80, IBIT [213 IT. S. 6^ 61 L. ed.
917, S7 Sup. Ct. Rep. 482].
In the case under consideration U ap-
pears that the reduced rates under which
A^iOOglC
1S16.
ATCHISON, T. ft S. r. B. 00. v, VSTTSD STATIB.
th«M karaM were thlpped uid the limited
liafcllitjr uiaiag from ahlppiiic onder lucli
Mdneed ratei vrere fixed hj the tariff
■ehedulei and the form ol limited-liability
Bontraet duly pobliihed and filed witk the
Interatate Commerce Commlwion, aa re-
fuired bj lav. IhoM latoa and that ao&-
trae^ which aantained the notice rvqnlre-
^aent, thus became bisding upon tho partlea
Moatil changed bj order of the Commiation.
• Thlc ii too velI*Kttled to need discuuion.
The rulea and regulations, duly publiahed
■ad filed, which in any wIm aSect the latu
or the Talue of the lerTica to be rendered,
are controlling upon both partiei to the
■hipping contract. Act of June 20, IBOS,
34 SUt. at L. f 2, p. fiSS, chap. 36B1, Comp.
Stat. leiB, g ee09. The binding force of
thcM contract* and r^ulatlona baa been
aJBrmed In many eaiee; among them :
Kanaaa City Southern B. Co. r. Carl, 227
U. S. 639, 052, 67 U ed. «83, S8B, 33 Sup.
Ct Rep. 8B1; Boston ft M. R. Co. v. Ho<^-
•r, 239 U. 8. 07, 112, B8 L. ed. SOB, 876,
J..ILA.1916B, 460, 34 Sup. Ct Rap. «26,
Ann. Caa. 1915D, 69S; Louisrllle ft H. R.
Co. v. Maxwell, 237 U. S. 94, 9S, 69 L. ed.
8S3, 8S5, L.R.A.191GE, 666, P.U.R.1916C,
SOO, 3£ Sup. Ct. Rep. 404; Great Northern
R. Co. T. O'Connor, 232 U. S. COS, S16, 66
L. ed. 703, 706, S4 Sup. Ct. Rep. SBO, 8 N.
C. C. A. 63; Georgt N. Fierce Co. v. Wella
F. ft Co. 23B U. S. 278, 286, 69 L. ed. S76,
S82, 35 Sup. Ct. Rep. 361; Boutbem R. Co.
Y. Freacott, 240 U. 8. B32, 638, 60 L. ed.
836, 839, 36 Sup. Ct Rep. 469 ; Cineinnatl,
N. 0. ft T. P. R. Co. r. Raskin, 241 U. B.
S19, «0 L. ed. 1022, L.R.A.1B17A, 266, 3S
Bop. Ct Rep. S6S; Norfolk Sonthem R. Co,
T. Ohatmaa [244 U. S. 276, 61 L. ed. — ,S7
Sup. Ct Rep. 489], decided b; thla court on
Mo; 21, 191T.
It follow* that the judgment of the
Court of Appeals of Crawford County must
be revereed and tJie cause remanded to that
eourt for further proceedings not inconsist-
ent with this opinion.
Reversed.
[244 U. B. m)
ATCHISON, TOPEKA, ft SANTA TE RAIL-
WAY COMPANY, Petitioner,
UNITED STATES.
Mastek and SiBTAnr ^slS— HouM or
SsBvicK — Dkavoidablc - Dslat,
Unavoidable accidoita causing delay
do not excuse a carrier, under the proviso
ia the Hours of Service Act of March 4,
1907 (34 Stat at L. 1416, chap. 2030, Comp.
Stat. leie, % 8679), | 3, "that the provisions
of this act ahall not apply in any ease of
casualty or unavoidable accident or the aot
0-;
<rf Qod; nor where the delay was ike raaolt
of a cause not known to the catrriN' or tta
officer or agent in cliarge of sueh employ**
at the time said employee laft a terminal,
and which eould not have bees foreaeen,"
In keeping a train crew on duty beyond the
prescribed period in ord«r to eomptete the
regulsx run after the train bmd arrived at
an intermediate point (a division terminal
but not the terminal for the train crew)
at which the company conid readily have
substituted a relief crew for the men who
bad then already been on duty for mora
than the prescribed period.
[Bd. Nou,-Por oth»r caws, s«* Hastar and
Bervant, Cent, Die i 14.]
tNo. 267.]
Argued May 4, 1917. Decided June 4, 1B17.
N WRIT of Certiorari t* the United
8tat«s Circuit Court of Appeals for the
Ninth Circuit to review a judgment whlck
affirmed a judgment of the District Court
for the Southern District of Calif otdIb, m-
forcing pmialties for violations by a carrier
of the Hours of Service Act Affirmed.
See same caM below, 136 C, C. A. 3G4, 220
Fed. 748.
The facts are stated In the oplnt<».
Mesara. Paul Bnrka, B. W. Camp, Rob-
ert Dunlap, sad Gardiner Lathrop for petl-
Assistant Attorney General Underwood
end Mr. Alex Koplia for respondent f
*Mr. Justloe Day delivered the opinion a(>
the court:
The United State* brought an action la
the district court of the United States for
the southern district of California, southera
division, against the Atchison, Topeka, ft
Santa Fe Railway C^nnpany to recovw Uu
sum of «I,BOe for three alleged violation*
of the Hour* of Service Act of March 4,
1907 {34 Stat at U 1416, 141B, chap. 2939,
Comp. SUt 1916, g| 8678, SS79), the rd*-
vant parts of which are aa follows:
"S«e. X. That it shall be unlawful for aay
common earner. Its officers or agents, sub-
ject to thla aet to require or permit any
employe* subjeet to this aet to be or r»
main on duty for a longer period than alx-
teen conaecutive hours, and whenever any
such employee of auch common earrier aball
have been continuously on duty for sixteen
hours he shall be relieved and not required^
or permitted again to go on duty until haM
has had at leaet ten consecutive 'hours off*
duty; and no such employee who has been
on duty sixteen hours In the aggregate in
any twenty-four-hour period shall ba t*-
quired or permitted to continue or again
go on duty without having had at least
eight conaecutive hours off duty: ...
"Sec. 3. . . . Provided, That th* pi»
^ — .Var other caiw sea same tople ft KBY-
NUICBBB U aU Ker-NaBberea Dlcerts
*«Wt)gle
n SUPBBHX OOUBT UFOKTBB.
Oct. TuUf
Tisloiu of HA uA ahmll not ffiij la vij
Moa of casualty or luULToidAUa accident or
th« art •! Qod; uor when tbe Mnj wm the
r«milt of a cauM Dot^^owm to tha mrrier
•r tta officer or agent In diargo of euch am-
plojee at the time uid employee left a ter'
tninal, and which could not have bem fore-
From the stipulated taeta the following
appears: That the Atchison, Tt^eka, k
SantA Fb Railway Company is a corpora-
tion duly organised and crlating under the
laws of Kanaas, and was at the times men-
tioned in the complaint a eommon carrier
engaged in interstate commerce hj rail.
That at the times mentioned In the petition
this railway company operated a certain
interstate passenger train from Los An-
geles, California, to Phtsnix, Arizona, known
as train No. IS, and a similar train from
PhiBnix to Los Angeles, known as train No.
17. That this latter train customarily, and
on the dates in question, moved from Phmnii
to Parker, Arizona, in charge of train and
engine crews, which crews were changed at
Parker, where there was attached to the
train an engine in charge of a crew which
ran from Parker to Barstow, California, a
distance of 183. S miles. That at Parker
train No. 17 was taken in charge of and
handled from that point to Los Angeles, a
distance of 335.3 miles, by a passenger train
crew, consisting of k conductor and two
brakemen, nho were the employees of the
railroad company mentioned in the eom-
That tlie terminals for the passmger
train crews engaged in the operation of
g, trains Noa. 17 and 18 are Los Angeles and
g Parker. That tbe employees described in
* tbe complaint resided and had their homes
tn Loa Angeles, from which point they cus-
tomarily left for Parker in charge of train
No. IB, which arrived at Parker at or about
1:16 o'clock A. H., whereupon tliey were re-
lieved until 10:40 o'clock p. v., on tile same
day. That during the interval they were
permitted to enjoy the aeeommodations for
rest at Parker, which was their "away-from-
home terminal." That at 10:40 o'clock p.
K. they reported for the return trip to Los
Angeles on train No. 17, and customarily
reached Los Angeles at or about 10:15
o'clock ^ H. on the next day, from which
time until 10:30 o'clock 7. u. on the follow-
ing day they were not on duty, and during
Uiat time they were permitted to repair to
vid remain at their respective homes In
Los Angelea, which was their "home t«T-
That on Oetotier Sd and 3d, 1012, passen-
ger train No. 17 was operated between Par-
ker and Los Angeles by the employees named
in the c(nq)lalut, and that tli^ were com-
pelled t« be and remain on liaty in connec-
tion with tbe movement of that train fr«m
10:40 o'clock P. U. on October Ed, until
8:2fi o'clodE r. K. on October 3d, under th«
circumstancea hereinafter set forth.
That the employees named reported far
duty at Parker, at 10:40 o'clock p. u. on
October 2d, and at Hi 10 o'clock p. k. do-
parted from Parker In charge of train No.
17, which arrived at Barstow, California,
at 7:10 o'clock a. k. on October 3d, having
been delayed for a period of two hours and
thirty minutes on account of washouta, th«
cause of this delay not being known to Um
defendant, or to an; of its officers or agenta
in charge of the employee* at tiie time thej
left Parker, and incapable of hting foreseen.
That train No. 17 was scheduled to leave
Barstow, at 4:45 o'clock a. h. on October
3d, but by reason of the delay in reaching
Barstow it actually left that point at 7:46
o'clock A. n., with ample time then remain- _
ing to reach Los Angeles within less thanj*
sixteen hours afterthe conductor and brake-*
men altered upon their service, but at 8:30
o'clock, and while the train was being
operated between Barstow and San Bernar-
dino, California, an axle broke under th»
tank of the engine wherriiy the movement
of the train was neceSBarily and unavoid-
ably delayed for a period of six hours and
ten minutes, with the result that instead
of reaching San Bernardino at 7:35 o'clodE
A. v., according to its usual schedule, or at
10:35 o'clock A. K., as it would have don«
but for the delays In resching and leaving
Barstow, it actually arrived at San Ber-
nardino at lt:30 o'clock p. it,, and that in-
stead of reaching Loe Angelee at 10:15
o'clock A. U., in accordanoe with its usual
schedule, or at 1 : 10 o'clock p. ic., sa it would
have done but for the delays in reaohing
and leaving Barstow had there been no
further delays, it aetully reached Loa An-
geles at 8:2S o'clock p. if. on October 3d.
Uie employees having been on duty for twen-
ty-one hours and forty-five minutes. That
tbe breaking of the axle whereby the train
was delayed for six hours and ten minutes
was a casualty and an unavoidable accident,
and the delay to the train caused thereto
was the result of causes not known to d«-
feodant, or to any of its officers or agenta
in charge at the time the employees left
Parker, and which could not have ben
foreseen.
That train No. 17, after having been de-
layed in reaching and leaving Barstow, And
after having been delayed six hours and
ten minutes by the broken axle, proceeded
to Los Angeles in charge of the employee*
who were in charge when it left Parker, and
that In going to Las Angeles the bain and
employees passed through the station af San
,A_.OOglC
Ul«.
ATCHISON, T. 4 a F. B. CO. T, UKITED STATBS.
•n
Bemftrdliio, CaUfomtm, wUeh ta » point
known and dengnated ks m. diTision tar-
minal, and which was a place appolntad and
Kutom&rllf lued aa a terminal from and
to which cnwB of certAln other pauen^r
Mid fraight tralni of the delendjat brought
^thelT traina, but whieh w»a not a tarminAl
Jftoi tr&in crewa In charge of traini Noi. IT
■ and ]8,**r of an;- othar tr&ina opera.tlng
between Parker and Loa Angelea. ILat at
and previou* to the time the employee* in
charge of train No. 17 had been continue
oiul; on duty tor a period of sixteen honra,
defendant had in its employ at Los Angeles
and alao at San Bernai'dino passenger train
ereWB which were eustomarily aaiigned to
ether pasEtenger trains, and crews which
were subject to call which ware enstomarily
naed In operating freight trtuna, who ware
qnalifled, abould necessity require, to op-
arata passenger traina between San Bernar-
dino and Los Angeles. That the employee*
in charge of train No. IT could have been
reliered at San Bernardino and the train
placed in charge of one of such other freight
ar passenger train crews at a time which
would have permitted the employees In
eliarge of train No. IT to "deadhead" from
San Bernardino to Loa Angeles on that
train without performing any aarrice.
That before tha delay of six hour* and
tan minute* which rwulted from the broken
axle had expired, and before the damage
which had caused inch delay had been re-
paired, and before tha train iritt Uie point
where the damage occurred, it was known
to the defendant and it* officers and agenU
that such employees would have been an
duty in excess of sixteen honra bf the time
they reached San Bernardino, but that no
effort was made to reliera them before they
had been on duty continuously In excess of
sixteen hour*, either prerioua to or at the
time of their arrival at San Bernardino, er
at any time before they reached Los An-
geles.
That It Is commonly understood by rail-
road men with a knowledge of tlie practical
operation of trains that the word "terminal"
has reference to certain train or trsins or
•ertaJn crew or crews, and meane the be-
ginning OT tha end of tlia employee's run,
ar tbe point at which, in the regular course
a el business, he would go on duty as a mem-
2 bar of a particular crew, or at which, in
•the regular course'of business, he would
cease to be a memlier of such crew of a
particular train and be relieved from duty.
Judgment was rendered in the aum of $100
apon each cause of action against the rai)-
soad company. Upon proceedings in error,
die judgment was alTirmed fay the United
States cireuit court of appeals for the ninth
circuit (136 C. C. A. 3S4, 220 Fed. 74S), and
a writ of certiorari brings the case here.
It la the eontention of the railroad com-
pany that the detention in service beyond
the period preaeribed by tha statute being
due to an unavoidaU* accident, tho limits
tlon of the statute for that trip waa at an
and and the company was not liable for the
penalty Imposed because of the extra serrlca
required upon that trip. On the other hand,
the government insists that, in view of the
prime porpoaa of the statute to limit
the hours of servloe so a* to keep within tlia
time prescribed, and not to aubject the men
to service beyond these hours, it was tbe
compony'a duty to relieve the crew at Saa
Bernardino by supplying their places witli
others instead of keeping them on duty la
Los Angeles, tbei^>y requiring service in
excess of that permitted by the statute.
Couelderlng theae opposing contentions, It
must be remmnbared that tbe purpose of
the aet was to prevent the danger* which
must necessarily arise to the employee and
to the public from continuing men In a dan-
gerouB and hasardoua buainesi for period*
BO long as to render them unfit to give that
service which Is essential to the protection
of themselve* and those intrusted to their
care. It is conunon knowledge that the en-
actment of this legislation was induced by
reason of the many caaualtie* in railroad
transportation which resulted from requir-
ing the discharge of arduous duties by tired
and exhausted men whose power of servica
and energy had been ao weakened by over-
work as to render them inattentive to duty,
or incapable of discharging tha responsible—
labors of their positions. J
* To promote the end In view, so eaeential •
to public and private welfare, Coogress, In
this Hour* of Service Act, provided the
limitations named upon the hours of servica.
The act is remedial and In the public in-
terest, and should be construed in the light
of Us humane purpose. Congress also rea-
lUed that it might be ImpracUcable In all
cases to keep tii« employment within the
hours fixed in the act, and added a proviso
to relieve from the general application of
the requirements of the law so that it might
not apply when the employment beyond tha
periods named was caused by csBUalty or
unavoidable accident or the act of God, or
where the delay waa the result of a causa
not known to the carrier or its orTicer or
agent at the time the employee left a ter-
minal, and which could not have been fora-
It was not the Intention of the proviso, aa
wa read it, to relieve the carrier from the
exercise of diligence to caniply with tha
general provisions of the net, tiut only to re-
lieve it from accidents arising from un-
known causes which necessarily entailed
overtime employment and service. United
SUtea V. Dickson, 16 Pet. 141, 10 L. ad.
A^iOOglC
S7 SUPBXHB OOUBT BEFOBTEB.
Out, Tbic,
ess. It b itni tli« dntj ol tlM wnier to
do all touonablj within it« pow^ to limit
thB hours of serviw in McordMJoe with tlie
raquiremeDts of the Uw.
Applying this view to tha pncent mm.
It wa« tho duty ol tha company, After tha
breakdown between Baratow and San Bar-
nftrdino, to lue all reasonable diligence to
aroid tha eoneequencas of tha iuiaiToid»b]e
accident) which had delayed tiia movement
of the train and to reliara tha craw by the
maaai practically at band. Thia tha emn'
pany might have dona by putting on a re-
lief crew at San Bernardino instead of per-
mitting an already exhausted crew, when
their condition ia judged by the aeiTiaa per-
formed, to hazard their own lirea and aafety
^ as well as the safety of othera by continuing
^ the journey to Loa Angeles.
■ * The requirement of continued aerrlea aftw
the train reached San Bernardino waa not
occasioned by the unforeseen accidenta, but
was the direct eonsequeuca of tha failure of
the company to relieve tha amployeea by
the aubetitution of a fresh crew, as tha rec-
ord shows could readily have been don&
It is contended by the company that this
construction of tha atatuta Is apposed to
that given by the Interstate Commerce
Commiasion, the body Intrusted by Congr^a
with Uie enforcement <rf the act, and is
against the understanding of tiie law which
the CommtsaioQ had given tha company to
believe would be enforoed.
It appears that two constructions of the
act have been given by tiie Interetata Com-
merce Commlaaion ; «na on Mar^ 10, 1908,
■a follows:
"The icBtances in which the act will not
apply include only such oecnrreneea aa eould
not be guarded against; thoae which in-
volved no n^lect or lack of precaution on
tha part ol tha carrier, its agents or ofSeers ;
and they serve to waive the application of
the law to employees on trains only until
such employees, so delayed, resdi a terminal
or relay point-"
Thia construction would plainly require
the railroad company to have tubstitutied a
new crew at Ban Bernardino and not to re-
quire the further aervice to Los Angeles.
The other coTtstruetlon, and the one which
the company contends should be controlling,
was given later, on May 24, ISOB, and la as
"Section 3 of the law provides that the
provisions of thia act shall not apply in any
case of casualty or unavoidable accident or
act of God; nor where the delay was the
result of a cause not known to the carrier
or >Ib officer or agent in charge of such em-
pioype at tha time said employee left a
terminal, and which could not have been
foreeeen.'
"Any employee so delayed may therefore
oontinue on dnty to the terminal or Kid of
that mn. The proviso removes the applica-
tion of tha law to that trip. (See Bule
287.)"
These possibly diverse rulings of the Com*
mission were reacinded on April Q, 19IT,
fay tha following order of the Commlaaion:
"Conferenea Bulings SS (b) and 287 (i),
relating to the Hours of Service I«w, re-
scinded, for the reason that they were Issued
as informal expressions of the Commission's
views to act as guides until the questions
could be judicially interpreted, and they
having Iwen Judicially interpreted and are
now before the oourt on appeal, there ia no
further occasion for Uiesa fomm views of
the Commisaion."
If the constructtoB contended for by tha
oompany be adopted, it would follow that
the employees mif^t be kept in service for
indeflnite periods, until the termination or
end of the run ahould be reached, which it is
not difScult to suppose might require many
hours of service beyond the limitations pr»
scribed in the body of the acL This oon-
struction would defeat tfae purpose of the
aat by permitting tfae employeea to endan-
ger themaelves and the publte t^ the com'
tinned service of tired and ezhaosted men.
We reach the coDcluslon that in keeping tha
crew in eerviea faqrond San Bernardino
the company waa guilty of a violation of
the statute.
We And no error in the judgmat ot th«
Oirenit Court of Appeals, and tha suns is
afflrmed.
DANIEL SHAW and tha Board of Drainage
Commissioners ot the Bayon Tarre-Anx-
Bcnifs Drainage District.
OoNBTTrnnoRAi. Iiaw «s^80(3)— Dm P»>>
CIS5 or Law— OppOBTuniTT to Pbesemt
Dbikkbc
1. A suit to enjoin the collection of a
drainage tax, in which the fa'ial court had
hence without the due proceas of law gnar-
anted by U. 8. Const. 14th AaiHid., wher«
the highest state court, upon the mnnd
that plaintiff's land was low and marshy and
had not been bencAted or drained, and eould
not be drained under the drainage systent,
reversed the judemont below dlsmiSBUig the
suit and granted an Injunction against tha
Ic * KBT-NUHBER In sU Kar-
"fJfWglC
1*18.
UCBDEBS T. SHAW.
«3»
■MMmmt, iliiea nieli tntarrenn wu sot
bound to g» on and offer aridoiM upon the
trial aa to Um physical condition of the
land wUeh lia eontended waa InadmiBalble,
In ordw to rabnt teatinonj alrtadj ruled
to ba inadnuHibh in aooordanet with hia
Tie*.
[Ed. Kota.— Tor other aana. ■•• ConHltatlonal
I«w. Cut. Dls. II S71, m.]
OoDBTS ^>>8g6(6)— Dbbob to Statb Cdtixt
— Fkdku^ QuxmoM— When Runts nr
Tno.
2. Tha claim that a ault to enjoin tfaa
eollcctioD of a drainage tax, in which the
trial court had ruled that it waa not open
to plaintiff to ahow that hii land waa not
baneflted bj the drainage improTement, waa
decided a^net an Interveoiag holder of
bondi payable oat of anch tax without giv-
ing Uffl tka proper opportunity to preeeni
'-'- 'afenae, and henoe without the due
froceat of law guaranteed by U. B. Conat.
4th Amend., when the highest ttate court,
apon the ground that plaintlS'a land waa
not and could not bo drained under the
drainaj^ q'atem, rerereed the judgment he-
low, diamtaBlng the lult, and granted an in-
r«tion Bgainat the aseeBunent, waa ralawl
time to aerre aa the basla ol a writ of
error from the Federal Bupreme Court, al-
though It waa first made in the aaeignment
of errore filed with the chief justice of the
■tate eourt shortly after that court bad re-
fnaed to eoneider an application for rehear-
ing, since a party la not bound to contem-
plate a decision of the eace before his
evidence is heard, and therefore waa not
bound to aak a ruling or take other pr»-
Cftutions in advance.
>, see Courts, CeilL
dSi
_ NoI«.-~raT otlksr c
IU80.]
[No. 472.]
Argued Hay S, 1917. Decided Jnne 4, 1017.
IN ERROR to the Supreme Court of the
State of Louisiana to review a decree
wbieh, reversing a decree of the District
Court of the Parish of St. Bernard, in that
■tate, granted an injunction against the col-
lection of a drainage tax. Reversed.
See same case below, 138 Ia. ftlB, TO Bo.
»10.
Tlie facta are stated In the opinion.
Ifr. William Wlnana WaU for plaintiff
1b error.
Measrs. Frank Zk lUchardaoa and
KWanJc Boule for defendanta in error.
* *Ur.JniUc*Ho1in«a delivered the opinion
•f the courti
Tbia Is a aidt for an injunction against
the collection of a drainage tax. The drain-
age district had Itaued bonds payable out
of tha tax, and the plaintiff In error, who
held some of these bonda, was allowed to
Intervene in defense. At the trial the plain-
tiff offered evidence to show that the land
taxed waa outside of the levee system that
the drainage wmmlssloners were building;
that it would receive no benefit, and really
was an island or islands in tha Oulf of
Mexico. The defendant objected and the
evidence waa excluded as inadmiaalbla un-
der the pleadings, but it waa s^ead upon
the record and completed in order to carry
the case to the supreme court. The defend-
ant then put In teatlmony that the land
waa not in the Gulf of Mexico, and Uiat the
map* produced could not be relied upon
for the depth of the water when water waa
indicated, but croae-exam in ation to show
the phyaleal eondltion of the property waa
objected to — tha dafendonta' position being
tl^t the fUBstion waa not open, and that^
being the ruling of the court. Judgment^
waa entered for the defendant* and Inter-*
vener and waa afflnoed on appeal by the
supreme eourt A rehearing waa granted,
however, and the eourt, observing that tha
aoawer and testimony showed that the land
waa low and marshy, had not been benefited
or drained and could not be drained under
the present system, held that the case waa
governed by Uyles Salt Co. v. Iberia t St.
M. Drainage Dist S39 U. S. 4T3, 60 L. ed.
392, LJLA.— , — , 30 Sup. Ct Rep. 204, de-
cided after the first decision in the present
caae; reversed the Judgment and granted
an Injunction against the assessment upoB
this land.
The intervoitng defendant thereupon »^
plied for a rehearing, but the court dfr
cllned to consider the application under Its
mle that only one rehearing should ba
granted. Ha now brings this writ of error
and says that he haa been deprived of due
prooeaa of law, eontrarj to the 14tii Amend-
ment, because the case haa been decided
against him without his aver having had
the proper opportunity to present his evi-
dence. Technically this Is true, tor when
the trial court ruled that It was not open
to the plaintiff to show that his land waa
not benefited, the defendant was not bound
to go on and offer evidence that he eon-
tended was inadmissible, in order to rebufe
the testimony already ruled to be Inad-
miuible in accordance with his view. The
chief jusUoe and Ur. Justice O'Nlell were of
opinion that the ease should be remanded
to the trial court, we presume upon the
ground just stated. Probably Uie major-
ity of the supreme court thought that it
was so plain on the uncontroverted tacts
that the case was within the principle of
the Mylea Salt Co. Case that to remand it
would be an empty form, — a mere conces-
sion to technicality. It may turn out S0|
but we do not see In the record an abso-
lute warrant tor the aaaumption, and there-
fore eannot be sure thet the defendant's
name topic « KBT-KDM BBX In all Ker-Namberad Dltsats A lodcsM
.gic
37 SUPREME COUBT BEPORTIsn.
^righta are protected without giring Um >
jjcbanca to put hia evidence in.
• 'The queetion remainH whether the writ of
•nor can be maintaiined. The record di»-
eloaea the facta but does not disclose the
elaim of right under the 14th Amendment
until the assignment of errori filed the dij
before the dilef justice of the state granted
this writ. Of courae ordinarily that would
not be enough. But when the act com-
plained ot is the act of the lupreiue court,
done unexpectediy at the end of the pro-
CMding, when the plaintiff In error no
longer had anj right to add to the reoord,
it would leave a eerioua gap in the remedj
for infraction of eonatitntional rlghta if the
partj aggrieved in euch a waj could not
eome here. The defendant wai not bound
to contemplate a deeiaion af the eaae ha-
fore hla evidence was heard, and tiierefore
was not bound to aak a ruling or to take
•ther precaution! In adTanee. The dmial
of rights given by the 14th Amendment
need not be bj legielation. Home Taleph.
ft Teteg. Co. r. Los Angeles, 227 U. S. 278,
87 L, ed. 610, 33 Sup. Ct Rep. 312. It ap-
pears that shortly alter the supreme oourt
Itad declined to entertain the petition for
rehearing ths plaintiff in error brought the
daim of constitutional right to the atten-
ttoo of the chief justice of the state by hia
Hsignment of errors. We do not we what
■u>re he could have dono.
Judgment leversed.
(Z4I V. 8. tlO)
SEABOARD AIR LINB RAILWAY COM-
PANY, Plff. in Err..
ELIZABETH BLACKWELL.
OoHUCBCE ft=>CS8 — Statv Rsodlatioh'—
Slowing Dowk tob Qkadx Oumbins—
Blow-Pobt LiW.
The requirement ot Oa. Civ. Code,
I 2016, that the ennueer of a railway train
shall begin to chedc the speed of his train
when 400 yards from each public road cross-
ing at grade, and shall keep checking the
■peed so as to stop in time should any per-
son or thing be erosaing the track on the
road, is Invalid under U. B. Const, art. 1, |
B, as a direct burden en interstate commerce,
when applied to an interatate passenger
train which, under the facts aa admitted by
demurrer, crosses 124 highways at grade bo-
tween Atlanta and the South Carolina line,
—a distance of 123 miles, — none of which
croBsings present conditions makinr them
pemliarly dangerous, but at each oi which
inch train would be compelled by the law to
■low down practically to a full stop, thereby
•onsuming not leas than three minutes at
Mdi OMuiag which would mare than doubl*
the running tine of the train
aforesaid pointa.
[Ed. Nota.— For other ciiM^ i
Cent Die. 11 T7-3«, 100.]
N ERROR to the Court of Appeab ot th*
Stata of Georgia to review a judgment
entered pursuant to the opinion of the Su-
preme Court of Uie state, affirming a judg-
' of the City Court of Elberton In favor
(rf plaintiff in an action againat a railwaj
company for a wrongful death involving th»
validity, as ^pliod to interstate trains, of
the Georgia blow-post lav. Rnerasd and
remanded for further proceedings.
me case lielow, in supreme courts
143 Oa. 237, 84 S. E 472, Ann. Caa. 101TA.
in court of appeals, IS Oa. App. fiO^
8S 6. X. 686.
Hie facta are stated In tiie opinion.
Messrs. Idunar O. Rocker, Andrew J.
Cobb, Howell C Erwii^ and W. L. ErwlK
for plaintiff in error.
No appearance for defendant in error.
Ur. Justice HoKennA delivered the opl»
Ion of the court:
This writ of error ia directed to a judf-
ment entered upon a verdict for the sum il
41,000 In the city court of Elberton,
Georgia, for the death of a son of defend- ^
ant in error, alleged to have been causedJa
t^ the railway company. 'The judgment waa*
^rmed by the court of appeals of Georgia.
The facto aa charged are: Ihot the d*-
eeased was driving a horse and bu^^
along a public road in the oounty of Elbert
and while crossing the railroad track of
the railway company at a pub lie crossing
outside of the dty of Elberton, he was
struck by the engine of one of the com-
pany's passenger trains and received in-
juries from which he died three days later.
' llat the empl<^eea of the company !■
charge of the train failed to blow the
engine whistle at the blow post 400 yards
south of the crossing, failed to keep blow-
log it until the b«in arrived at the croaa-
!ng, and failed to check the speed of the
train at such blow post and keep it checked
until the train reached the crossing, and,
so failing the company was guilty of ne^
That the employees of the ecanpany
failed to keep the train under control, and
approached the crossing at a high and dan-
gerous rato of speed, so that they could
not stop the same in time to save the Ufa
of the deceased, and that such conduct was
negligenea. And that "sudh conduct wan
^sFor Mliar ci
IS bvlo * KBT-NUKBSa la i
U Kej-Numbered DiMta *,^«^. p
I. kill. ■,■ 1 ^
uia.
SSABOAED AIB LIKE B.' 00. T. BLACB.WXLiU
•a
MigligenM if thej Mw Mtid daOMMd va tiia
flrcMsing, and it wu aegligenes if the; did
Mt tM Uin, and it iraa n^liganee under
_thi Uow-poBt Iaw,i and it waa oegUgence
2 ngftrdleu of ths blow-post law."
■ ^b» eomp&ny bj its ausner denied tha
Tmrioiu acU of negligenoa charged agalnat
It and ita emplofeea and denied "that tha
bilnre to complj with m^ blow-post law
vaa negligence on ita part nlatlTel; ta th*
tiraasaction in questiwi.''
The compan/ sst oat tha a^UeaUa aee-
tions of the Uw and alUgti that iU train
vaa running in interitata eommarea between
tlie states, and a^aolalfy batwestt Georgia
and South Carolina. That betwaoi the
ei^ of Atlanta, Qeorgia, and ths Sarannah
river, a distance of 1£3 miles, where the
same is the boundarT- Una ol Georgia, there
are 124 point* where the Una of the rail-
load eroasea pnblie roads of the different
•onnties of the states astabUahed pnrauant
to law, and that all of suoh eroasinga ara
tHiat In order t» wmply with the law
tiie speed of a train would havs to be ao
■lackeaed that there would be pra«tleallj a
fuU stop at each of tha road erossings;
that the time required fen' such purpoa*
would depend upon Tarlons conditions,
whioh might or mi^t not exist at the time
and at the erosaings; among others, tha
•tat* of the weather and the percentage
•f grade; but it would not be leas than
three minutes for a train eomposed of an
engine and three ears, and for a train of
a greater number of ears the time would
to greater, — for an averaga freight train,
■at less than five minutea.
Hat the train allied to haTS eauaed
the death of the deceased was composed of
M aa engine, a mail oar, and two coaches, and
JJthat if tiie blow-post law had been eom-
■ plied *with on the day In question at least
three minutes would have be«o eonsumed
at each eroBsing, — more than six hours be-
tween Atlanta and the Savannah rivtet.
nat tiie running time between those points
aeoordlng t* tha adopted Mhedala waa torn
houre and thirty minntea. That if the law
had been complied with tha tima "*»""»*^
between those points would ha m been mora
than ten and one-half hours.
^kat for freight trains the d oa eonsumsd
would be more than aixteen tmtn, tha maxl>
mum speed of such treina oa &m eompany'a
road being 80 miles an hour,
Iliat tha eroaaiuga are tha nsnal and
ordinarj grade oroeainga and there are na
conditions which maka anj onu of Uw
peculiarly dangerous other Uian sub dan-
ger as m^ raanlt from tha eroiiing of ft
pubUe road by a railroad track at grade.
That bstwasa the ei^ ri AU nta and
tha Savannah rtrer the Hm «f tha eom-
panj's railroad eroseae tha tra^i af two
other railroads, and Uiat under the laws of
the state a train is required ta eoMa to a
full stop W feat from tha srossin^ and
tikat tha time to eonsumad would ineisaaa
the tins required ta operata between the
points ref«Trd to.
That tha hw as applied ta the tr^a la
question la an unreasonabla ragnlatioa of
interstate aommeroe and a riolaboa
of t S, S S. articU I., of the Qmatltntiav of
the United SUtea, and that therefore tha
oompanj Is not gull^ of tha various aata
of nsgligeno* eharged ag^iwt It.
Upon damurrar to the answw ol tha
eampany the aTsrments in regard to the law
ware stmek out except the denial that tba
failure to eomplj with the taw was negll-
fence oa tha oompuij's part "relativelr
to tha transaction in question."
Tha caae eo went to Uie Jury, Inelndtng
the defense that the deoeaaed failed to axar- m
dee ordlnar; ears and dlligenaefor his own*
■aJetj. The jurj ratoracd a verdict for
the sum of fl.OOO.
A motion for a new trial waa denied.
Tha railway aompany thra took the eaas
to the court of appeals of ths state, and
that court Invoked the Inatmetion of the
supreme court upon tha question whether
that part of the law (CMl Coda of the
1 "See. ESTS. A post to be erected.— There
moat be fixed on the line of eaid roade, and
at the dJEtance of 400 yards from the center
of each of such road eroaalngn, and on each
aide tiiereof, a post, and the engineer shall
to required, whenever he shall arrive at
elthec of said poste, to blow the wUstIa of
the locomotive until it arrives at the public
road, and to simultaneously cbeck and keep
checking the speed thereof, ho as to stop in
time should any peraoii or thing to crossing
•aid trade on said road.
"Sec, 2678. Neglecting to arect such porta.
—Should any company fail or neglect to put
M said posts, the superintandent thereof
■mU to guiMr of a misdemeanor.
"See. 2077. Falling to blow whUtla^U
S7 B. 0^-41.
any enofneer neglect* to Mow aaid nhlstla
aa required, and to check the speed required,
he is guilty of a mlsdemeanori Provided,
that within the corporate limits of the
dtles, towns, and villages of this state, tha
several railroad companies shall not be re-
quired to blow the whistle of their locomo.
uvea on approaching eroBslngs or pnbllo
roads in said corporate limits, but in lien
thereof the engineer of said loeomoUves shall
to required to signal the approach of their
trains to aueh erMsings and public roade in
said corporate limits, t^ tolling the toU <rf
said locomotive; and on failure to do ao^ tfca
penalties of this secUon shall wplr ta aadl
affssiaaL- [Ga. Cade 1S14.]
A^^OOglC
17 SUP BBMS OOUBX SEPUUTKR,
Oof; ItaH,
■M% I MTS) wUdi MfuirM tb« nglBMr
to chMk tlu apaed of tb« tnln on kpproMli-
big & pnblk eroMing, w u ta atop In tima
■honld anj paraoa or thing ba eroaaing the
rftilrcwd track on ita road, b viMaatltB-
tional ao fu M an intent«ta train ia aon-
aatnad, nodar tha eonditioita aet forth in
tha anaww «f tha oompanj, for tht reaaon
that, aa thua applied, tha atatuta la a regu-
lation of interatKta aonuneraa and repug-
nant to tht cammBTM elatiae of tha Conati-
totiou of tha United SUtM.
He auprame eonrt ajuwarad the qneation
in Uie negativ*. Hm opinioB of tha eoort
la Tery elabwate, bat the baaia of it la
tiiat the Iftw ia a valid exardae of the police
power of tha atAte, that there waa no dla-
plnoeni^it of It* BXandae by eongreaaion*!
action, and that bj ita exereiaa In tha Uw
in qneation it did not directly bordan inter-
•tate eonuneree.
The court of ^peala acoeptad Beoeaa*riIj
Hm Tlewa of the lupreme court and ana-
tnined the ruliug of the tritJ court upon
the demurrer to the plek of the eompuij
that the Iftw violated the oottunerea elkuae
•t the Conatitution.
To t^a contention erf tht eonpanj that
the deceaaed had not obaarred omlinary
aare for hit own aaiety, and eould htrt
aroided the injury which re«nlt«d In hla
death, the court asawered Uint it waa a jury
fneation, and laid: "la riew of the eridenoe
aa to the defendant'a failure to oomply
with the proTialona of the "blow-port Ia.w'
fiiere ia euffieient teatlmony aa a whole to
•npport the Jury*! tindingt in favor of
the plaintiff." The ccrart henea afflrmed the
_ Judgment
S It will t)e obterred, therefore, from this
" CtAtement, that*the Iftw of the ttftta waa an
dement In the declaicma of the atate tri-
bvnaJi and Ita oonatltutionality waa siu-
talned againat tht attaeka of the railway
•ompany. The queation ia therefore pre-
■ented for our conaideration. In ita eon-
aideration we need not deaeant upon tha
eitent of the police power of 1^ atata and
tha limltatlona upon it when It eneountera
the powers conferred upon the national
goreminent. There la pertinent axpoaition
of theae in Southern R. Oo. t. King, 217
U. S. 624, M L. ed. 808, 30 Sup. Ct Bap.
SV4, in which the law now under reriew waa
paaead upon. The caae ia clearer aa to the
relation of the power* and that the power
of the atate cannot be eieTciaed to direct-
^ burden interitate commerce. It waa
reoogniied that there might be eiotalnga
tha approach to which the atate coald regu-
late. But, on the other hand, it waa said
there might tie others ao nnmeroua and
BO near together that to require the slaeken-
Ing of apaad would be praetically deatme-
tff« oi tlM anoeaaahtl operation of Utar-
aUte paaaanger txaina; and thecefwra "atkt-
utaa wlikh require the apeed ol luch tniis
to ba eheeked at all croaaingi ao aitoatad
might not only ba a regulation bvt alao a
direct burden upon interitate eonuneice, and
therefore beyond tht power at tha atate to
Tliat aaaa went ^ on a queation of
pleading. An antwar waa filed that did not
invoke the Federal Coutitution. Thia waa
attempted to Im done by an amended anawer
which WM vary general and to which a
demurrv waa anatainad. At the trial of the
aetion there waa an offer of evidaioe of tlia
■peeiAe rifect of the law upon the oper^
tlon of tralna aa ihcwing tha impediment
of tha law to interstate oonuuerca. Tha
evldenee waa azduded. Iliia eourt ana-
tainad tha ruling on the ground that the eri-
dene* wm not admieslble under the plead-
ings. The ruling upon the demurrer to tha
answer iraa auatalned on tha ground tliat
tha answer contained only general arer-^
mentt conatituting "mere ooncluaiona." ItjJ
waa aald that tha>aTanaenta "let forth no*
facta which would make the operation of
the atatute unoonstltutional. They do BOt
show the number or location of the croaa
inga at which tha railway company would
be required to check the speed of ita traina
to aa to Interfere with their lucoaaafnl
operation. For aught that appeara aa
allegatioDB of fact in this anawer the eroaa-
ing at which thli Injury bappezied may
hara bean to located and of such dangerout
character aa to make the ilackening of
tralna at Uiat point neceaaary to tha aafet;
of thoee uaing the publo highway, and a
statute making tueh requirement only a
reaaonafale police K^ulation, and not an
unlawful attempt to regulate or hinder in-
terstate oouunerca. In the abaenoe of facta
setting up a aituation ahowing the unraa-
tonabla character of the ttatuta aa applied
to the defendant under the clrcumstaiKe^
we think Qtm amended answer aet up n*
l^al defenae, and that the demurrer there-
to waa properly lustained."
He facts so epecifled, and which it waa
decided would give illqial operation to the
statute, are allied In the present caae^
and, assuming them to ba true, — and wa
must so assume, — compel the conclusioa
that the statute is a direct burden npoa
interstate commerce, and, being such, ia to-
lawful. The demurrer to the answer aver-
ring thsm waa therefore Improperly aa»'
Uined.
We expreaa no opinion on tha third do-
fente of the company.
Reverted and caae remanded for furtlker
proceedings not insondstent with Uda
opinion.
,A_.OOglC
Ult.
CITTAHOaA VirXR FOWBK 00. t. VfORSSCVBX BKALTT CO.
Th« CBixr JvwncK, llr. JncUea PUaer,
•nd Ur. Jnitice DraiMI«la diwent on the
ground that the regulation In quMtkn was
within the cUh whldt tha itat* i* entiUed
to CBAct In the sbseaee of eopgrewloni] •»■
tlon, and until such actioik. Tbtn having
bean no acUon bj Congreu, there ii there-
lore no ground lor holding the state action
vtid u ft legnlatien of interitat* conutMrM.
OH 0. S. W>)
CmrAHOGA RIVBK POWER OOMPAHT,
PUT. In Eft.,
KOBTH^niN REALTT COUPAKT and the
Northern Ohio Traction 4 Light C<an-
CoTTBTfl ^=>382— Brkok to Biaib Gouip-
HlOHKBT St>ts Coubt.
1. The court of appeali of the itato of
Ohio ii the highest court of the state in
which a decision conld be had, within Oit
■neanioE of the Judidal Code, | 237,* govern-
ing write ol error to state court*, where tha
Ohio mpreme court denied an application
to direct the court of appeals to Mrtiff the
noord for review, and diemlaaad for want of
jnrisdiotlon a writ of error proieautad to
we court of appeals from the lupremo oonrt.
[Bd. Note.— V^r othar wee, eaa ConrU, Cut.
Die. H IW IMT.]
CouRTB ^98(»1(4HBbbi>b to Statx Codbt
— DEcmoR ON Non-B'KDXBUi GKOTmn.
2. The Ohio court of appeals muat Im
Xrded as having rested it* judgraoit dik-
ing condemnation proceeding! on It*
4aeiiion of the prelitnlnuj' question* raised,
1 e., tha exiitence of the petitioning oor-
E ration, its right to male* the appropria-
•n, iU inability to agrea a* to '*^- ~
broad enough to niatain the Judgment ir-
Teapeetiva of the merit* of the Fcdernl qneo-
ilon involved in the defena* concerning the
public eharaetar of tha uie to which the
owner of the property sought to be eon-
Aomned had applied it, and the conBcquent
want of authority to take It for the benefit
•f the petitioning corporation, — vliere ibe
■npreme court of the Btate, In diimisitng,
lor want of jurisdiction, a writ of error
to the court of appesls, declared that there
was no question under tha stata or Federal
Constitution Involved.
rSd. Note.— For otbar csMS. see Oonrt*. Cant
Dlk. I 109!.]
CouKTB ^=>386(1)— Ebbob to Statk Coubt
—Deoibior on NoN-FxDEBAi. Gbouitd.
S. Tie Federal Suprana Court will not
taks Jurisdiction of a writ of error to a
•tata court where the absence of an opinion
hy the court below msliea it impossible to
■ay whether Ita judgment rested upon state
IBMtioB* adaquata to autaia it Indepandent
of tlM Fodenl qurtloa. both bofav (a flM
~ [Bd. Nats.— Tor otlisr oases, sse Oooit*. Oaat
Dfg. H UM-UKT.]
[No. 342.]
IN ERSOR to the Court of Appeal*,
Eighth District, of the Stata of Ohio,
to review a Judgment wbidi affirmed a judg-
ment of tha Common Flea* Court of Summit
County, in that state, dismissing the petl-
Uon in oondMonation proeeedioga. Dia-
mitaed for want of jurisdiction, i
The facta are stated in tha opinion.
Messrs. Carroll O. Walter, John L.
Wells, and WUliam Z. Davia lor plaintiff ta
Uesars. Joaepli S. Clark, John 0. Wear
dodc, and T. H. Hogiett for defendant! in
*Mr. Chief Jnstioa Wlilt* ddlverod the*
opinion of tha conrti
The Cuyahoga Rivsr Power C«npany,
plaintiff in error, was oliartered under tha
laws of Obio to build and maintain a *y»-
tam ol dams, canal*, and lodu in the Big
Cuyahoga river for the generation of eleo-
tricity for light, heat, and other purposes.
The corporation was grantad authority ta
acqulrs by oondemnation or purchase pro^
arty necessary for the conduct of ita bn^
ness. In July, 1911, tha Power Company
commenced this action against the North-
em Realty Company, one of the defendanta
in error, to condemn a larga tract of land
owned by it adjacent to the river. After
the *uit waa bron^t this land wa* aold
by tha defendant ccospany and was ultl'
mately acquired by tha Northern Ohio
Traction A Light Company, chartered by
the etata to operata an intemrban eleetria
railway, and upon the land thus bought b)
it aftar the commanoament of tha mlt that
company, for ita eharter purposes, built
and was operating two large power planta.
Upon ita own motion tha Traction Com*
pany was made a party to the pending suit
for expropriation. In conformity with the
Ohio statutes r^ulating the procedure in
eminent domain, four preliminary quea-
tione were required to be passed upon by
the court without a jury, and, if decided
in favor of the plaintiff, a jury was thai
required to detarmine the question of com-
pensation. The four preliminary ques-
tions were these; (a) the existence of the
1 Leave granted on June 11, 1917, to pr^
sent petition for rehearing within laxtf
days, on motion of Hr. Wade H. Ellis, la
behalf of counssl for tha plaintiff la amr.
:gle
«T SDPBSia OODBI KSFOBTES.
OOT. Ikut
patiUoning oorp^mUoB, (b) Ita right to
makfl tha appropriation, (o) ita inabilttj
to igTM fta to the ecmpeiiifttioD to be paid
for tha property, and (d) the neMoaity for
tbe appropriatloD. Tha dafendanta not only
railed upon theee fonr preliminuy propoai-
tloB^ but alao reaistad the taking cm tha
5 ground that a condemnation ol tha land
under the petition of tha Power Company
* would belneonsiatent witb and destructiTe
of the public uae to which the land had
been applied by the Traction Company. The
court did not eome to a jury blal on the
question of compenaation because, after
hearing aridence on the preliminary iuues,
on motion of the defendanta it entered
order dismisaing the petition, no rcaeon
■uch deoiaion having l>een expressed.
Hie case was talten to the court of ap-
peals, it beii^ eiaigned aa error that the
trial court had erred in its ruling! on the
(our preliminary questions, and it was fur-
thar alleged that tha refusal of the court
to order the condemnation of tha land upon
tha theory that it was not subject to be
condemned because, after the suit had been
brought, it had been acquired by the Trac-
tion Company and by it dedicated to a pul>-
lie use, constituted an impairment of the
contract rights of the plaintilT and a taking
of ita property without due process of law,
in rlolation of the Constitution of the
United States. Following a judgment of
affirmance without a written opinion, the
Power Company applied to the supreme
court of the state to direct the court of
appeals to certify the record for reriew,
which waa denied, and a writ of error which
was prosecuted to the court of appeals from
the supreme court waa dismissed for want
of Jurisdiction for the stated ground that
the case did not "involTC any question aris-
ing under the Constitution of the United
States OT the state of Ohio." Because of
the asserted denial of the alleged Federal
rights referred to the case is here, the writ
of error being directed to tha court of ap-
peals.
Our jurisdiction to review is challenged
by a motion to dismiss, based upon two
grounds which we consider separately.
1. It is contended that as, under f 23T
•f the Judicial Code [36 Stat, at L. 1150,
chap. 231, Comp. Stat. 1916, g 1214], we
hare jurisdiction to review only flnal Judg-
ements of the highest court of the state in
g which a decision could be had, the writ of
■ error should have been prosecuted to'ths
supreme court of Olilo. In view, however,
of the dental by that court of the applica-
tion to direct tlie court of appeals to certify
the record for review, and its order dis-
nlMlng tha writ of error lor want of jnria-
dietion, tha contention ii without merit
Stratton v. Stratton, 230 U. B. S6, 00 L. ed.
142, 311 Sup. Ct. Bap. 20; Valley 8. S. Ce.
T. Wattawa, 341 U. 8. 042, 60 I^ ed. 1217,
SO Sup. Ct. Bap. 447; Second Nat. Bank
V. First Nat Bank, 242 U. 8. 600, SL U
ed. 618, 87 Sup. Ot Bep. 286.
2. It is contended tliat, cmoeding tha
azisteuee of Federal questions in the case,
nevertheless as there were independenl
state grounds broad enough to sustain tha
jddgment, there is no jurisdiction. We
think the contention is sound. Despite scKne
suggestion to the contrary it is certain that
tha four preliminary propositions concerned
purely local law, and if decided adversely
to the plalntifl, were broad enough to sua-
tain tha judgment irrespective of the merits
of the Federal queetlon whieli, it is insisted,
was involved in the particular defease made
by the Traction Company concerning the
public character of tha use to which it had
applied tha property and the consequent
wont of authority to take it for th* benefit
of tha Power Company, which was submit-
ted to the oourt along with the preliminary
questions. Leaving aside any inference sus-
taining the view that the supreme court
treated the preliminary questions as having
t>een adversely decided and the constitu-
tional questions as having bean eliminated
wlien it refused to order up the record lor
review, that conclusion is sustained by ita
express declaration, made in refuung the
writ of error, that there was no question
under tha state or Federal Constitution
involved, — a conclusion which. It it had not
been in so many words declared, would hf
necessary implication have resulted from
the dismiasal of the writ of error for want
of jurisdiction, ^ce, under the Constitn*
tion and laws of Ohio, if a question under
the Constitution ot the United States or
the state Constitution had existed, the du^
to take jurisdiction would have been^
obvious. 9
'But assuming that we are not controlled*
by the statement of the supreme court of
Ohio on this subject, and must determine it
upon our own conception as to what was
done by the court whose judgment Is under
review, tlie result would tw the same. W*
so conclude because, looked at from the
point of view of the action of tlie trial court
and of the court ot appeals, the case pre-
its the single question of what principle
to be applied where, from an absence of
opinion expressed by the court l>eIow, It
impossible to say whether its judgmmt
M rested upon state questions adequate
to sustain It Independent of the Federal
questions, or upon such Federal questI<Mi%
both being in the case. But the rule whidi
controls sudi a situation has long pre-
vailed and was dearly exprsasti in iJIan
A^^OOglC
Ul*.
DOZPEL T. J0NS8.
T. ArgaimtMn, 198 U. S. 149, 154, 160, 49
L. ed. 990, 993, £6 Sup. Ct Rep. 822, where
K writ of error to the eupreme court of
Florida waa diuniBsed, u lollowa: "The
flopreme court of Florida gave no opinion,
and, therefor^ we are left to conjecture ae
to Ui« groundi on which the pleaa were
k«ld to be bad; but U the judgment rested
OD two ground^ one lavolTing a Federal
queatiOQ and the other not, or If It doei not
appear on which of two gronuda the jud^
ment wai baaed, and the ground Independ-
■at of a Federal qneBtion is sufflcUnt In It-
■elf to nutain It, thla court will not take
jnilsdietlon. Dibble t. Bellingham Baj
Und Co. IBS U. 8. OS, 41 L. ed. 72, 16 Sup.
Ct Xep. 939; Ellncer T. Uiwonrl, 13 WalL
2ST, 20 L. ed. eSC; Jobnson t. JUbIc, 13T V.
8. 300, 34 L. ed. 083, 11 Sap. Ot. Rep. Ill;"
Bachtel t. Wllaon, 204 U. 8. 30, 61 L. ed.
SOT, 27 Sup. Ct Rep. 243; Adanu t. Rub-
•ell, 229 U. 6. 353, ST L. ed. 1224, 33 Sup.
Ct. Rep. 840.
Dismissed for want of Jruisdlatloii.
Ur. Jiuttee Ds7 and Hr. Jnatlce OInrke
iook na part in the conalderatlon and ded-
atui of this case.
OUir. S. ME)
KHMA F. DOEFEL et a1., Heira at Law of
Hollen H. Fearnow, Deceased, FUIa. in
LDTTIK B. JONFS, Rimer Jones, and the
Phimix Mutual Life Inaurance Company.
POBUO Lards «s»3C(IQ — Hohebtkad — -
FRfUDtJLKnT SnTLDIKHT — CoMTirnoN
or BktTBT BT Bbibb or Entbthak.
1. A homestead entryman who, contraiy
to the Act of May 2. 1890 (20 Stat, at L. SI,
chap. 182, Comp. Stat 1910, f 6025), ) 24,
{irohibitin? fraudulent settlement on publts
ande in Oklahoma, agreed with his mother,
loT a promised consideration, that he would
make the entry, comply ""i^ the homestead
laws, and pay rent for the use of the land
In the meanwhile, end that when the patent
was issued it would be for bed:, and not for
B account, and he would deed the land to
tiiem with no right after his death to com-
plete the entry.
rSd. Not*.— Tot other osm*. ws Publle I^ndi,
C«nL Die I n.1
Public Lands 4=9l28 — Hokestead —
Fbaudule^t SETTLEUEnr -~ Cancella-
tion OF Entbt — Bquitabix Bioht ot
Hbibb of juntstuah.
2. No equitable right to hold the pat-
ontee as trustee could posalbly ariBO In faror
of the heirs of the nomcBtead entryman,
where his entry had been canceled and pat-
ent Issued to another, because of the for-
mer's agreement, contrary to the Act of May
t. 1890 (20 Stat at L. 81, chap. 182, Corap.
Stat 1910, i 6026], S 24, prohibiting fraudu-
lent settlement of public lands in Oklahoma,
that he would make the homestead eotry lor
the benefit of another.
Argued Ifay B, 191T. Decided June 4. lOlT.
IN ERROR ta the Supreme Court ot the
State of Oklahoma to review » judff-
ment which rerersed a judgment of the Dis-
trlet Court ot Kay County, In that state, in
favor ot plaintiSs in a suit to eatablish a
resulting trust Affirmed.
See same case below, — Okla, — , 156 Faa,
Statement by Hr. Chief Justice Wblte:
It is sought npon this writ ot error tm
reverse a judgment which sustained the
validity of a patent issued by the United
States to tha defmdant in error, Luttie
B. Jones, under the homestead laws. Th*
controversy originated in a suit broug^it by
the plaintiffs in error, eharging that tlw
Land Department had, without warrant ot
law, overruled contests which they had Iliad
against the right of the defendant In error
to take the land under the homestead law,
and that therefore she held the patent tor
the same in trust for their benefit
Hie facts stipulated or shown by dooii-_
mentary evidence, as to which there is B«g
dispnte, are these: Hollen *H. Fearnow,*
being qualified to make a homestead entry,
applied in 180Q to make such entry in his
own name. Before making tha application
he had agreed with his mother, for a prom*
ised consideration, that he would make tha
entry, comply with the homestead laws,
and pay rent for the use of the land In the
meanwhile, and that when the patent was
Issued it would 1m tor her, and not for his
account, and he would deed the land to her.
About two years after the entry was mads
a marriage ceremony was performed be-
tween the applicant and Luttie B. Fear-
now and they lived together as husband and
wife and resided on the land. Some years
later after the marriage ceremony and be-
fore final proof or patent, Lena Barnes In-
stituted in the local land office a contest
against the right of Feamow to make the
homestead entry. This contest was based
upon the fact that the agreement which ws
have stated had been made, and npon the
charge that, under the law of the United
States, it absolutely disqualified him from
making the entry. In December, 1B03, after
a hearing in the local land office the con-
test was sustained, the application by Fear-
now was canceled, and an entry by Bamsa
M Mt ume (i«io A KET-NUUBBR In all Ksj-NumbarXI DiiMts A Iad«x«
iglc
37 SUPBBME COUBT BXPOBTBB.
Oat. TDK,
under tha boroeste«d law was flowed. Ilila
order wai tsJcen tot reviev to the Com-
tnuaioner of the General Land OfBee, and ta
January, 1S06, on the ground of an irr^u-
Uritf or defleienej' of notice in the oonteat
procMiding the order vu TeTeraad and the
local land office waa directed "to appoint a
d*7 for the hearing ol this couteat, of which
both partiea shall have at least thirtj daTs'
notice. Upon the final determination of the
osae, should plaintiff be held to hare estab-
lished the truth ol the averments of her
affidsvit of contest, said H. E. No. 13,S90
[the Barnes entry] vhich Is hereby sus-
pended, will remain intact; Otherwise It
will be eauoeled and said H. B. 10,171 [the
Feamow entry] reinstated."
^ Ten months after this order the entry-
gman, Fearnow, died, it not appearing that
• in the Intervening time auy*further steps
were taken concerning the reinstatement of
kis homeste&d entry, and after the elapsing
of more than a year from his death the
•ntrfwoman, Barnes, dismissed ber contest
and relinquished her homestead entry. On
the same day, November 28, 190B, Luttie
B. Fearnow, as the widow of Fearnow, filed
« relinquishment of his homestead entry,
and on that day also made her own applica-
tion to enter in her own Individual right
the land as a homestead, and this applica-
tion was allowed. He following month
the plaintiffs in error, asserting themselves
to be the heirs of Hollen E. Fearnow, and
•■ anch entitled, under the law, to the bene-
Ati of his homestead entry and to com-
plete the same, contested the application
«( Luttie B. Fearnow on the ground that
■he was not his widow and not entitled to
the land as such, because she bore sueh a
relation of consanguinity to her allied de-
oeaoed husband ai to cause the pretended
marriage relation between them to be in-
cestuous under the laws of Oklahoma, where
the land was situated, as welt as under the
laws of Kansas, where the marriage be-
tween them purported to have been eele-
fcrated. He local land office rejeoted the
oontest, following previous decisions of the
I«nd Department holding Uiat the ques-
tion of the existence of a marriage waa one
for judicial cognizance, and until its nullity
was declared or found t^ a competent court
the msrrit^ was binding on the Land De-
partment. The Commissianer of the Gen-
eral l4Uid Office, in reviewing, recited the
previous facts as to Uie Barnes contest,
the action taken upon It, the cancelation of
the Fearnow homestead entry, the setting
aside of the contest proceeding and the
der made In it, and affirmed the action
the authorities which the local land office
hod relied upon. In rsrlewing and sustain-
ing thli action on appeal the Secretary of
tlie Interior decided that the nibject-mati«r
of the marriage and its nullity was not pri-
marily cognisable in the Interior Depart- «
ment. Independently of this, however, hiag
lotion was placed, in addition, on dlittnct*
and different grounds, as follows:
'But, independent of this, contestants
have presented no grounds upon which tlieir
contest can be sustained. They do not al-
lege a priority of right to msJce entry, or
that the entrymon has not complied with
the law. Their claim rests upon thdr re-
lationship to EoUen E, Fearnow, and U
they have any right whatever by virtue of
their heirship to EoUen H. Fearnow it is »
right to perfect his entry, not to moke
entry In their own right. To avail them-
selves of this right it would be neceeaary
to reinstate that entry and to show that
it was improperly canceled, not by reason
of any technical objection in the procedure,
but upon its merits. Furthermore, tbeir
delay in not presenting their claim, even U
valid, is a sufficient reason for rejecting
their application to contest tiiis entry."
The consequence was to definitely reject
the contest and affirm the right to enter of
Luttie B. Jones, she having in the mean-
time remarried, and, on the making of final
proof and compliance with the legal re-
quirements a patent for the land to hear
Issued in Uarch, 1909. Thia suit, aa we
have said, was then begun for the purpoae
previously stated, the basis of the relief
being aubstantlally the claim which had
been pressed In the controversy in the Da-
partment.
Meesrs. Samael Herrlok, Ifilton Brown,
L. A. Marls, and Cody Fowlet for pbuntift
Hr. Chief Justice Wtalt«, after making
the foregoing statement, delivered tbs ojMn-
ion of the court;
It cannot be seriously disputed that lfs>
the agreement was made by Fearnow, then
original applioant, that beVonld make tte*
homestead entry not for himself, but fur
the benefit of another, would, dortag
the time that he was apparently taking the
steps to complete the entry, pay rent for
the land to such other person, and iriiei
the patent was issued deed the land to HNfe
person, such agreement caused that entry
to be absolutely void for repugnancy to
§ 24 of the Act of Congreas of May S, ISM
(26 Stat, at L. SI, chap. 188, Comp. Stat
19ia, 9 6026). But as it was expressly
stipulated that the facts a* to sneh agree>
ment were true. It must follow neceaaarily
that the entrTmon dsrlvad no right from
A-iOO^IC
19U.
DOEPEL V. JONES.
W
hia entrj ftnd trtnsitiitted none to his hairs,
and vested them with no right kttei hi*
death to complete that which was not sus-
ceptible of being completed.
Moreover, as it is not disputable that the
l4Uid Department in it* final ruling againit
the conteatants placed iti actitm upon the
prior eaDcalation of the homeatead antr;
beeause of the particular agreemont re-
ferred to which was the basis of the Bamei
contest. It must nacesaarily result that
there la an abscooe of the eaaential founda-
tion upon which alone the aswrted ligbta
of the plaintiffs in error oould poasiblj rest.
But, patting this Utter Tiew aside, we are
at opinion that t^a court below waa clcarlf
f]^t in holding that, u tha iMta ware ad-
mitted which absolutely destroyed the effect
of the original Fearaow homestead entry,
and therefore caused it to be impouible for
that entry to be the generating source of
rights in favor of the plaintiff* in error, no
equitable rights arose In their favor grow-
ing out of the canoelation of thAt entry and
the issue of the patent to the defendant In
error. It seems auperfluoui to rsajon to
demonitrate that no equitable ri^t to bold
the patentee aa a tmataa oould possibly
arlae in favor of the plaintiffs in amr slnca
the a[^lieat)oB to enter upon which they
raly was in l«fsl contamplatton non«i1«t<nt,
and hokea aonld afford no basis tn a^taUa
ri^ta of aaj dunstsr*
>v Google
■jGoogle
FOUJOWmO ABE MEMOBAHDA
CASES DBFOSES OF AT OCIOBEB TEBH, 1916,
Iz rAXTit IiT THi Uattb or Club D.
Vjuucm ftnd AUrad B. Qninton, Patl-
UouaTB. [No. — , Orlgiukl.]
Petition for a luMing on motion for Imlts
to file bill of complsint in tha n«iiM «f tha
United State* t. State of Florida.
MewrB. Alfred B. Qninton and CUIr D.
Talletta for patitionara.
Odtober 10, ISIO. Denied.
} or CraA, Plaintur, t. Bits* <a
NoBTH Cauuka. [No. — , OrlgliuU.]
notion for leaTe to file declaration.
Uaaara. Marciu H. Bumatine, Frederic R.
Oondert, and Howard Thayer Eingebury for
plaintiff.
Heura. T. W. Biokett, J. S. Uannlng, and
William W. Kitchln for defendant.
January 8, 1S17. Withdrawn on motion
tl eounael for tlie plaintiK
S. H. Ham, Plaintiff In Brror, t. B. W.
Rkoord. INo. ass.]
In ErniT to the Supreme Court of tha
State of Oklahoma.
Ueaera. Watson £. Coleman and Fredarlck
a Stitt for plaintiff in error.
No eounael appeared for defaidant in n-
JIosM D. BiXB, Plaintiff in Error, T. Aiaxi-
OAIt EXFBESS COMPAKT. [No. S43.]
In Error to tite Supreme Court of til*
State of Miaaiaaippi.
Heaaia. Lawrence Maxwell and Joaefih B.
Qtaydon fen- pl^ntiff in error.
Bnreh & Minor, for defendant In error,
Uaye, 1917. Dlamlaaed with coat* on me-
Uaa at aoimaal for the plaintiff In error.
DAiuao AfDUDO at aL, Plalntiffa la Brrav
and Appellaata, t. Xbsibia Baooi at aL
[No. 265.]
In KiTor to and Appeal from tha Snprama
Court of the Philippine lalanda.
Ueaara. C. Z^ Bout« and W, E. Slobardaoa
for plaintiffa in error and appellanta.
Mr. C. W. O'Brien for defendant* in error
and appelleea.
May 2, igiT. Diamlaaed with eoata, pu-
auant to the Teotb Kula.
Fkaitcts C. Welor at al, Truataea, eta,
Plaintiffa in Error, v. Citt or Bosroir.
[No. ses,]
In E^ror to the Superior Court ot tha
State of Maasachuaetta.
Mr. Barton Corneau for plaiutUTa In ar-
No counsel appeared for defendant in er^
tlniTED Gtatbi, Appellant, ▼. Boais or
CooNTT CoiuusBioniBs or OsAaK Cotm<
TT, OsiAHOKA, et aL [No. S70.]
Appeal from the United Statea Cirimlt
Court of Appeals for the Eighth Circuit,
The Attorney General for appellant.
No eounael appeared for appellees.
May 3, 1917. Diamisoed on motion of
eounael for the appellant
H. N. JoHNBOir et at.. Appellants, V. Wn^
LIAM O. MoAdoo, Secretary of the Dnitad
Btatee Treasury Department. [No. 897.]
Appeal from the Court of Appeala of tha
District of Columbia.
Mr. Comeliua J. Jone* for qtpellant*.
Mr. Solicitor General Davis tor appallM.
May 7, 191T. Par Curiam: ^ndfrnnt «f-
A^^OOglC
87 SUPRBME CODBT EBFOBTEB.
On. 1
flrmad wltb eoiti upon tli*
Bellciuqi f. Scbild, 161 U. B. 10, 40 L.
e09, 18 Sup. Ct. Rep. MS; Intematioiua
PoBtal Supply Co. v. Bruce, 1S4 U. 5. 801,
48 L. ed. 1134, 24 Sup. Ct. Rep.
SUt« ex lel. GoldbAi^ t. Danieli, 231 U. a
£18, C8 L. ed. 191, Si Sup. Ck Bap. 04;
Loobiuia t. UcAdoo, 234 U. & <27, S8 L.
•d. 16W, 84 Sup. Ct. Bep. 089.
Joseph Fuzdiuh, Plaintiff In Error,
UHnvD Statxb. [No. SSO.]
In Error to the United Statea Ctraait
Court of Appeal* for the Firrt Clr«oit
Mesare. WiUiajn H. Taylor ud Chulea T.
Gallagher for plalotlfT in error.
Mr. Solicitor Qeneral Di,Tii for defendant
■ May 7, 1917. Per Curiam! IMimlswd for
want of jurisdictian upon the authority of
Ithefadden t. United SUtea, US U. S. 888,
n L. ad. 801, 29 Sup. CL Rep. 490.
Omo 0. Baud, FeUtlcua-, t. Oauhbu
Chxxtoal CfotsxsT. [No. C80.]
PeUtion for a Writ of CerUorui to tba
United SUtea Circuit Court ol i^peala for
the Sixth Circuit.
Ifr. Charles E. Smoyer (or peUUoner.
Mr. W. T. Holllday for
May T, 1917. Denied.
tfupina Lmmi or thb Woaut, Lotal Ob-
deb Or Mooai, Petitioner, t. Thoicaa P.
Ekhhet, aa Administrator, et«. [No.
1033.]
Petition for a Writ of Certiorari to the
Supreme Court of the Btata of Alabama.
Hr. E. J. Hannlng for petitioner.
No eonnael appeared for retpondoit.
Maj 7, 1917. Denied.
V. J. U. SantK, Petitioner, t. Bisnn W.
WiOTEB. [No. 1077.]
Petition for a Writ of Certiorari to the
United Statea Circuit Court of Appeals for
the Iliird CircuiL
Mr. J. S. Freemann for petitioner.
Meaara. Thomas Stolcea and Oeurga Wbar-
ioa Pq)per for respondent.
May 7, U17. Denied.
OoBAK Bnaicamr Coxfaht, I^iotb), Peti-
tioner, T. UxiTtD Statbs Sikbl Pbootkri
Coaajjrr. [Noa. 1080, lOBl, 1082, ud
1083.]
Petition tor Writs of Certiorari to tfa*
United SUtee Circuit Court of Appeals for
the Second Circuit
Mr. Charles 8. Haif^t for petitioner,
Mr. J. Parker Elrlln for respondenL
Msy 7, 1917. Denied.
BmroBD N, "Mtmi. «t al., Petltdoners, ▼. L.
B. Szinn^ MAmrrAoruuna CoxrjLjrt,
[No. 1087.]
Petition for a Writ of Certioimrl t» ths
United Statea Circuit Court of Appeals tot
the Fifth Circuit.
Meeiri. V. M. Durrance and Goorgs OL
Bedell for petlUoom.
Mr. T. Hart Anderson for respondank
May 7, 1917. Denisd.
Raipk H. Caxebok, Appellant, v
F. Wezdiit, Register of tlie United States
Land Offlo^ Phisnlx, Ariaono, at aL [N«.
1118.1
Appeal from the DUtrlot Court of the
Unttad StatM for the Diatriet of / '
No counsel appsarsd for appellant.
The Attorney Qraeral for appellees
Mi^ 7, 1917. Doeketed ■ ' " '
with costs, oit motion of tlie Aaslatant to tha
Attorney Oeoeml Todd, In behalf of eauMsl
f or the appeUoM.
Dkawabb, Laokawahha, & WMmit BaiL-
aoAD CouPANT, Plaintift in Error, t. Ijif
UAH WiLLiT^ AdministmtTix, etc [No.
lOOS.]
In Error to the Court of Errori and ^■
peals of the State of New Jersey.
Ur. Frederlo B. Scott for plaintiff in «•
No counsel appeared for defendant la er-
ror.
May 8. 1017. Dlamlaaed with coats, ea
moticm of counsel for Uie plaintiff in anor.
HntBKDin IwATA, Appellant, t. CEAKUpi T,
CoBmzx, as Immisration Inqieetor Ib
Charge. [No. E53.]
Appe«l from the District Court of the
UniUd States for the Southern Distrlet e(
California.
Mr. Lewis H. Smith for appellant
Hr. Solicitor General DaTla (or appeOsa.
Uaj 81, 1917. Per Cnrlomt ~ '
A^iOOglc
191S.
MEMORANDA CASEa
•n
affirined with costs upon tlie authority of:
<1) BugajewiU v. Ainrat, 228 U. S, BBS,
690, GOl, S7 L. ed. STB-980, 33 Sup. Ct. Sep.
. «07i (2) ZakonalU v. Wolf, 226 U, S. 272,
ST L. ed. £18, 3S Sup. Ct. Hep. 31; Lewis
V. Friclc, 226 V. B. 899, 66 L. ad. 1263, S2
Bnp. Ct Kep. S3Si (3) United States ▼.
Jn Toy, ISS n. B. 263, 49 L. «d. 1040, 26
Sup. Ct. Rep. 644; Chin Tow v. United
Statea, 20B U. B. 3, 62 L. ed. 369, SS Snp.
Ct. Sep. 201; Tang Tun T. Edsell, S23 U. 8.
673, 66 L. ed. 606, 32 Sup. Ct S^. 869;
Low Wah Suej *. Backus, 226 U. B. 460, SO
L. «d. lies, 32 Bnp. Ct Rep. 734.
FHii.uiKLPHtA ft B&unna Railway Cok-
nurr, PlAiutlff In Error, t, Umitb)
Statbs. [Noi. B78 and 879.]
In Bitot to the District Court of tite
United StAte* for tlie Baiten District of
PsBniylTBnlA.
Heurs. William Clarke Uason and
Chnrles Heebner for plaintiff in error.
'Rt» Attorney Qeneral for defendant
Ha; 21, 1017. Per Curiam: Dlsmlsaed
for want of jurisdiction upon tlie auUtori^
of UcLish T. Roff, 141 U. B. Ml, 665, 86
U ed. 803, fiH, 12 Sup. Ct Rop. 128; Cov-
ington r. First Nat. BanV, 186 U. S. 870,
277, 4S L. ed. BOO, 90T, 22 Sap. Ct Rep. 046 ;
Brike T. United States, 217 U. & 428, 64
L. ed. 821, 80 Sup. Ct Rep. 630.
BmcA Tatlob, 1 AdminUtratrix of Frank
niylor. Deceased, and John F. Kirl^,
PliUntlffs Id I^Tor, t. DxAHf aqb Dibtbict
NOMBB Fdtt-Suc or Eitun Countt,
Iowa, at aL r^^tr. 178.}
In 'Bnoi to tlie Supreme Court of the
State of Iowa.
Mr. Edgar A. Horllng for plAlntlfTs in er-
ror.
Hessrs. Hugh H. Obear, Cliarlea A. Dong-
laa, Thomas RulSn, and James W. Morse
for defendants in error.
May 21, 1917. Per Curiam; Judgment
affirmed with costs upon the authority of
Hnling T. Kaw Valley R. k ImproT. Co.
130 U. S. GS9, 32 L. ed. 104B, 0 Sup. Ct
Rep. 603; Wincma ft St P. Land Co. t.
MiDDesota. 16S U. S. 640, 40 L. ed. 262, 16
Sup. Ct. Rep. 68; Leigh r. Green, 1S3 U.
8. TO, 48 L. ed. 623, 24 Snp. Ct Rep. 300;
Ballard t. Hunter, 204 U. S. 241, 201, 262,
61 L. ed. 401, 474, 476, 27 Sup. Ct Rep.
861; American Land Co. t. Zeiss, 219 U. B.
47, 66 L. ed. 82, 31 Sup. Ct. Rep. 200.
1 Death of FraJik Taylor, one of the plain-
tiffs in error herein, auggeated, and the
AppearAuce of Emma TkjIot, administra-
trix, as a party plaintiff in error, filed and
entered Novanher 18, 1016, on moiion ot
Mr. Hugh H, Obear, In belnU of eonaeel for
tte plahitlSs In vrer.
Uatbo Eajaxdo Cabdoha, Plaintiff In Bi^
ror, T. Pbofle or Pobpo Rico. [Noa,
632, S33, and 834.]
In Error to the Supreme Cottrt of Porto
Rico.
Hr. Willis Sweet for plaintiff tn error.
Mr. Samuel T. Auell for defendant in
error.
May 21, 1617. Per Curiam: DismJssad
for want of Jurisdiction upon the authority
of Deining t. Carlisle Packing Co. 220 U.
6. 102, 106, 67 L. ed. 140, 142, 33 Sup. Ct
Rep. 80; Overton t. Oklahoma, 836 U. S. 31,
SB L. ad. 112, 36 Sup. Ct Rep. 14; Stewart
T. Kansas Ci^. 239 U. S. 14, 60 L. ed. 120,
30 Sup. Ct B^. IS.
Stati of NsBBAiSKA EZ sn. HxraT 0.
BiTTERBEMDfB AAD AdA M. BlTTEHBUfDn,
Plidntifls In Error, t. Exoisk Boabo or
TBS Cut of Lraoour, N^oabea. [No.
260]
In Error to the Bnprema Court ot tbo
State of Nebraska.
Ada M. Bittenbender for plaintiffs In «r-
ror.
HessTA Qeorge W. Berge and C. Petrua
Peterson for defendant in error.
May 81, 1917. Per Curiam: Dismissed
for want of Jurisdiction npoii the authority
of: (1) Eustis T. BoUes, 150 U. B. 361, 37
L. ed. 1111, 14 Sup. Ct Rep. 131; I^the
T. Thomas, 207 U. 8. 03, 62 L. ad. 118, 28
Siqi. Ct Rep. 30; Mellon Co. t. McCaffer^,
280 U. 8. 134, 60 L. ed. 181, 36 Sup. Ct Rep.
04; (2) Jones v. Montague, 104 U. S. 147,
48 L. ed. 018, 24 Sup. Ct Rep. 611; Rich-
ardson r. McChesney, 218 U. a 487, 64 L.
ed. 1121, 31 Sup. Ct Rep. 43; Steama t.
Wood, 230 U. B. 76, 60 L. ad. 4TS, SS 8up.
Ct Rap. 820.
QKAifD RApma ft ImHAifA Railway Cok-
PAKT, Plaintiff in Error, v. Uihtid
States. [No. 206.]
In Error to the United States Circuit
Court of Appeals for the Sixth Circuit
Messrs. J&mes H. Campbell, Elvert M.
Davia, and Frederic O. MoEenney for plain-
tiff In error.
Mr. Assistant Attorney Qanaral Under-
wood and Mr. S. Milton Blmpaon for do-
fen dant in error.
Ma; 21, 1017. Par Curiam: Dismissed
for want of Jurisdiction upon the authori^
of Hollander t. Fechheimer, 162 U. 8. 326,
40 L. ed. 086, 10 Sup. Ct Rep. 706; Call-
fomia Nat Bank t. Btateler, 171 U. B. 447,
43 L. ed. 233, 19 Sup. Ct. Rep. 6; Mar-
tinez J. IntemAtional Bkg. Corp. 220 U. B.
£14, 822, 223, SS L. ad. 488, 443, 81 S19.
Ct Rep. 408.
A^^OOglC
17 SUPREME COUBT BKPORTER.
Puixix Oil & Ou Coupaht, Senca W.
AdUkhij, uid ChArlM Antlumj, PlftlntiS*
U Enw, T. Annn Cum. [No. U9.]
Ib Error to the Supreme Court «( tha
8UU of Oklahoma.
Mewra. Joaepb W. Bailor, Georga S. Bun-
a«T, and Till&rd Uortin for plalntiffa In ar-
Hr. S. W. Eayea tor ddendant In arror.
May 21, 1SI7. Per Curiam: Dinuiaaed
for want of juriadiction upon tte author!^
of ) 237, Judicial Cod^ h amended by tha
Act of Congresa of September 0, IQIS. See
Prairie DU ft Gai Co. v. Carter, 244 U. 8.
046, 61 L. ed. — ,87 Sap. Ot Bap. 402.
OloaOE SOHWIDI T. Zk(
[No. 372.]
On CertiQeate from and Writ of Car-
Uorari to tbe United Statea Circuit Court
of Appeal* for the Sistb Circuit.
Uasiri. IL B. Newcomb and Frank M.
Cobb for petlUoner.
Jdeairs. Luther Di^ and Earray D. Qould-
«r for reapondent.
May S], 1B17. Per Curiam: Judgment
of Diftrict Court ol tha United SUtea for
the Nortbem Diatrict of Ohio afBrmed with
ooata by an equally divided court, aod oauae
ramanded to tbe aald Diatrlet Court. (Mr.
Jnatice Day took no part In tha conaidera-
tlon or daeiaion of tUa caaa.)
JoHit Kkunt, Petidoner, T. Laxan Uiua
at al., Admn., etc. [No. 1093.]
Petition for Writ of Certiorari to the
Supreme Court of tbe State ot Oklahoma.
Mr. Charlea J. Eappler for petitltmer.
Meaara Charlea E. MerllUt and H. F.
Wblte for reBpondenti.
May 21, 1917. Granted.
KifAKUKL J. DoTLE, Collector of Internal
Berenue, Petitioner, y. MitOhuj. Bboth-
EBA CoUFAin. [No. 1103.]
Petition for Writ of Certiorari to tbe
United States Circuit Court of Appeal* for
tbe Sixth Circuit.
Mr. Solicitor General Davie for petl-
Hr. Mark Norria for respondent.
May 21, 1B17. Granted.
IiTODSTsiai. AcoiDcnT Coxmisiox aw the
State ot Caufobitu, Petitioner, t.
SocTHERH Pacifio Compaht. [No. lOCC]
Petition for Writ ot Certiorari to the
Supreme Court of the State of California.
Ur. Cbriatopher M. Bradley for peU-
Meanrs. Hanlay C. Booth and William F.
Herrin for reapondent.
May 21, 1917. Daniad.
W. C. Bub at aL, PeUttonera, r. Mw. H.
A. GmoB. [No. 1034.]
PetlUon for Writ of Cartltvail to tb*
Supreme Court of tba State of Florida.
Mr. George I^lmer Garrett for petittoK-
No counaal appeared for respondeat.
MayZl, 1S17. Denied.
NiOHOLas F. Baasx et al, aa Blseaitton,
etc., Petltlonera, t. Chabije» W. ANnaa-
■OH, Late Collector of Intamal Rmmoa,
•to. [No. loss.]
Petition for Writ of Certiorari to tha
United Statea Circuit Court of Appeals for
the Seoond Circuit
Mr, John M. Perry for patitiouera
Ur. Solloitor General Davia foe r
MaySlrUlT. IHaiad.
SOVTHSBH BaiLVAT CoicpaiiT, PatlHoBW,
T. Tnania IfoQoiii, Admlnlatratrix, ata.
[No. 1090.1
PeUUon for Writ of Certiorari to tlM
United State* Cirenit Court of Appeals lar
tha Fourth Cireuit.
Mr. a. Walton Moore for pettttonar.
Mr. Leo P. Harlow for Tespoad*afc
May 21,1017. Denied.
VFnjKm D. Wnra, Petittoner, r. Csablsb
DnjJHDHiAM, BaoelTer, ete, at al. [Nou
1105.]
Petition for Writ of Certiorari to the
United States arcuit Conrt of Appeals for
tbe Fifth Circuit.
Mesara. Henry C. Coke and Weldon Bailej
for petitioner.
Mr. John M. Kennerly for respondent*.
M^ 21, 1017. Denied.
J. M. SHiunw et al., Petltlonera, v. Gas
Bdcubitieb Couriju. [No. 1107.]
Petition for Writ of Certiorari to tha
United Btatae CHrcutt Court ot Appeals for
the Ei^tb Circuit.
Mr. Irving B. Melville for peUtioneia.
Meaara. Plait Sogera and Jamea Q. Ba^
era for reapondent.
Maj U, 1S17. Dealod.
L'.aliz.dbyGoOgle
uie.
MEMORANDA CASES.
Cmit Hina, Petitioner, *. ExNar M. Whtti,
Bi CommUiioner of ImmigratiOD, eU.
[No. 1111.]
Petition for Writ of Ccrtfomi to the
United States Circuit Court of Appeali for
tlie Nintli Circuit.
Mr. Cbarie* R. Pierce for petitioner.
Mr. Solicitor Gcnerkl Davie tar reload-
•nt.
Ua7 21,1017. Dulad.
SEuina at n]., *
Special CommlttM, ete., Fetitionera. [No.
21, Orlginel.]
Meaers. Bernard B, Selling, Hrairj M.
Campbell, Otto Klrehner, Clarence A. Light-
ner, and Sidney T. Miller for petitionen.
Meaera. T. A. E. Weadock and Harrieoa
Geer for reepondent.
May 81, 1917. Case etrlcliai from the
docket on motion of Solicitor Qeneral Davl^
in behalf of eonnael for petitiooer^
■jGoogle
OODBTS ^a>S88 — BSKOB TO DlSTMOT OF
CoLUUsiA. CoVKt or Appeals— Fedebax
QuranoH— Emplotebb' Lubility.
1. Tha Federal Supreme Court hu
Jnrledictioa of a writ of error to the court
of appeals of tjia District of Columbia ii
• case In which the construction of thi
Federal Employers' Liabilitj Act of April
22, 1908 (36 StAt. at L. 06, chap. 140), as
amended by the Act of April 6, 1910 (30-
Stat, at L. 2B1, chap. 143, Comp. Stat. ISIO,
3 9602), la drawn in question.
Note.— FV>r "
I lOSS-lMO.l
GomniRCE «=»2T(d)— Buflotebs' Liabil-
nr— Who Abe "Couwon Cabbibbb by
Bailwat"— EixeiHio Sailwat.
2. A corporation incorporated as a
nilwaj company with full power of emi-
D«nt domain, owning and operating an In-
terstate Una of clecb'lc railway eonatmeted
largely on a private right of way, and en-
gaged in carrying pasaengers for hire tw-
tween ita termini, is a "common carrlei
by railway" within the meaning of the Act
of April 22, ISOS (36 Stat, at L. EG, chap.
140), ae amended by the Act of April 6,
1010 (36 SUt. at L. 201, chap. 143, Conm.
Stat. 1016, I 8062), goreralng the liablll^
of interstate railway carriers for the deau
or Injury of their employees when emplf^red
in interstate commerce.
[Ed. NoU^For other deflnltloDS, MS Word*
and PhrsHS, Pint and Second Serlei, Commoi
LiuiTATioif or AonoTTS «=127a5)— Sirs-
PEitaioiT BT Suit — Auendmbnt— New
Caube or Actio IT -BuPLoiERs' Liabil-
ITT.
3. The smendnient of the cotrnti in tha
complaint In an action for death brought
under the Employers' Liability Act of April
£2, lOOS (35 SUt. at L. 06, ch^. 140), as
amended by the Art of April 6, IBIO (36
Stat, at L. 281, chap. 143, Comp. Stat 1B16,
g 3662), whicli allied that the injuries re-
ceived caused the deceased to Enffer intense
pain, by adding an allegation that auch in-
juries caused him "conscioui pain and suf-
fering," did not Introduce a new cause of ac-
tion which would be barred, because the two
years' limitation prescribed by the act had
then elapsed.
(Hd. Note.— For sthar oasts, aw Limitation of
AcUons. C«it. D!b. | Stf.]
Pleahinq *=24B(4)— AmnDMBBT — Elb-
KENTa or Damaqes.
4. The trial court could permit the
eounts in the complaint in an action for
death under the Emplovers' Liability Act
of April 22, ISOS (35 Stat, at L. fly, chap.
140), as amended by the Act of April 5,
1010 (38 Stat, at L, 391, chap. 143, Comp.
Stat. 1B18, S 8662), which alleged that tfie
Injuries received caused the dec eased to
■nffet intense pain, to be amended after
(K>4 ST SUPREUB GOUKI REFORTEfi. Ooc. Tbm,
(lUD. B. em
WASmNQTON RAILWAY * KLECTRIO i the evidence wa« aH in by adding an alloga-
COUPANY, PUT. in Err., tion that SDch Injuries bad caused him "con*
T. j scious pain and suffering," where, under
ANN CATHERINE SCALA, Adminlstiatrli **•" counta aa they stood before the amend-
of tha Estate of Alvin Joseph Scala, Do- n"°t>, .testimony had been admitted with-
out objection, tending to prove that the de-
ceased suffered pain during the comparativs-
ly short interral between the time he waa
injured and when he lapsed Into the period
ol unconsciousnesH which preceded bis death.
[Ed. Nats. — Far etber DM**, ■•■ Pleadlnf.
Cent. DiB. II «aa, SH-tW.]
Mastbb and Sbbvamt «=3286(16)— Ques-
tion pob Jobt— Neouoenci.
G. The mainteuanee by an electric rail-
way company of a pole so close to the track
that a conductor on one of its cars cannot
safely dischar^ tlie duties required of him
is sufficient evidence of negligence to justify
the Bubmisaion to the jury of the question
of tiie liabili^ of such company for his
death as tha result of a collision with such
pole while he waa standing or moring along
the running board of an open summer ear
In the evening, after dark.
[Bid. Note.— ^r other oaaa^ bm Ifaatar and
SerTSM, Cent. Dig. I U11.1
INo. B2fl.]
District of Columbia to review a Judg-
at which affirmed a judgment of the
Snpreme Court of the District in favor of
plaintiff In an action for death, brought
under the Federal Employers' Llablli^
Act. Affirmed.
See same case below, 46 App. D. C. 484.
The facts are stated in the opinion.
Mr. John 8. Barbour for plaintiff in
*Mr. Justice Clarke delirered the opinion?
of the eourt:
is ease is before ns on writ of error to
the court of appeals for the District of
Columbia, and we ehall refer to the parties
aa they appeared in the trial court, tha
defendant in error as plaintiff and tho
plaintilT in error as defendant.
On July 8, 1013, the plaintiff's decedent
as a conductor in the employ of the de-
fendant, a common carrier of passengers by
1 electric railroad, with termini as here-
I after described, and when standing or
moving along tha "running or stepping
board" of an open summer car, in the even-
after dark, his body in some manner
struck against one of the poles supporting
the overhead wires and he was so injured
that he died within an hour.
The negligence charged In the third and
fourth counts of the declaration on which
the case was tried la the placing of tha
IS t«pl« * KKT-NUMBIBS In all KsT-NombersA Dlcasts *
tWogic
uie.
WABHINaiON RAILWAT fc ELECTRIC CO. T. 8CALA.
»>polu ao dote to the trmek thkt the daoedent
84id not hava a wionably lafe place in
* which to dUehftrga'the dutiat reqi]!red ol
him, and the ktlegAtiona of theae counti
bring tha c&se within the Federal Emplojr-
ers' Liabilitj Act, approved April 22, 1908
[3S Stat, at L. 65, chap. 14S), as amended
April 5, 1010 (36 SUt. at L. 201, ehap.
143, Comp. SUL 1010, S SOBZ).
A motion by the defendant in error to
diemiee the writ of error for want of jurla-
ilietion and a petition filed by the plain-
tiff in error for a writ of certiorari, !>oth
•f which were postponed to the beariDg on
the merita, are denied.
Coming to tlie merita of the caM we are
•onfronted with eighteen claims of error,
which, however, reaolve themaelves into but
tbrce of aubetance lufflcient to nil for at-
tention, viz.:
(I] Ihat the defendant at the time of
the accident wae not a "common carrier by
railroad" witiiin the meaning of tlie Fed-
aral Employers' Liability Act of April 22,
1B08.
(2) That the trial court erred In permit-
ting the plaintiff to amend her declaration
«n the trial, after all the testimony had
been introduced, and at a time more than
two years after the accident had occnrred,
bf inserting a claim tor "eonacloua pain
and suffering" of the deceased.
Tbia amendment, it is claimed. In effect
allowed a recovery on a second and new
eauae of action after It was barred by the
two years' limitation of the act.
(3) That the court erred In aubmlttii^
the case to the jury, for the reason that no
substantial evidence ol negligence was in-
troduced on the trial
Four acts of Congress, the first providing
for the incorporation of the defendant oom-
pany and the other three amending the
first, were introduced in evidence on the
theory that they were private acts and
otherwise would not be before this court.
With these acts and the evidence and ad-
miaaioni shown in the record before us. It
is clear that the defendant was Incorporated
^as, and at the time of the accident com-
gplained of was, a railway company, not a
"street railway •company; that it bad full
powers of eminent domain; that at the
time of the accident complained of it owned
and operated a line ot electric railway ex-
tending from a terminus within the Dis-
trict of Columbia to a terminos at Cabin
John creek, in tbe state nf Maryland, a
large part of the line being conatructed on
» private right ot way, and that it wan at
that time a common carrier of passengers
for hire between its terminL
It is argued that under the decision fa)
Omaha ft C. B. Street R. Co. r. Intorstata
Commeroa Commission, 230 U. S. 924, ST
L. ad. UOl, 40 LR.A.(N.S.) SSS, 33 Sup.
Ct Rep. 800, tbe railway of the defendant
waa a street railroad, and that therefor*
the defendant was not a "common carrier
by railroad" within tbe terms ol the Act
of 1008 as amended. That case dealt with
a purely street railway In tho atresti of
two cities, and the decision was that it wa>
not a "railroad" such aa was Intended to
be placed under the Jurisdiction of the In-
terstate Commerce Commtseion by the In'
teratate Commprce Act of 1887 [24 SUt. at
L. 370, chap. 104, Comp. SUt. 1010, S 8663].
The ease la of negligible value in deUrmia-
Ing either the eonstruotion of tho act ws
are oonsldcring in tbia cue, or the claasifl-
cation of the defendant, which clearly
enough is a suburban railroad common ca^
rier of passengers within the scope of tht
Federal Employers' Liability Act, as !•
sufficiently decided by United SUtei T.
Baltimore 4 0. B. W. R. Co. 226 U. a
14, ST L. ed. 104, 33 Sup. Ct. Rep. G; Eas-
aas City WeaUrn R. Co. v. McAdow, 240 V.
8. 61, 00 L. sd. SZO, 30 Snp. Ct Rep. 252,
U N. C. C. A 857: Spokane i L E. R. Co.
V. United SUUs, 241 U. S. 844, 00 L. ed.
1037, 30 Sup. Ct. Rep. SOS; and Spokana
a I. B. R. Co. V. Campbell, 241 U. B. 407,
00 L. ed. 1125, 30 Sup. Ct. Rep. 683, 12
N. C. C. A. 1083.
His first claim of error of the defendant
must Im denied.
Seven days before the ease eame on for
trial, tbe court granted leave to the plain-
tiff, no objection being noted, to amend tba
fourth count of her declaration by adding
the allegation that the Injnries received by
the deceased caused bim to "suffer Intense^
pain." After all of the evidence had beeBg
introduced on the trial, the*eonrt, immodi-*
ately before charging the Jnry, permitted
the plaintiff to further amend tbe third
and fourth eounU of her declaration by
adding to each the allegation that tbe n^
ligence of tbe defendant resulted in "con-
scious pain and suffering" to the deceased.
To tbe allowing of tbia last amendment ths
defendant objected, and, the objection be-
ing overruled, excepted, and it thereupon
answered the declaration as thus amended,
pleading "not guilty and the sUtute of
limitations of two years."
The death of plaintlff'a decedent oo-
cnrred on July 8, 1013. T^is amendment
was allowed on October 20, lOJB, and It is
urged that the effect of it was to allow tho
plaintiff to recover upon a claim that the
deceaeed endured "oonscioua pain and suf-
fering," which would not have tMsn allowed
without the amendment, and that such
claim was barred by tbs provision of the
Bmployera* UshiU^ Ast, that no aetliia
A^^OO^IC
•H
tt 8UPEEHE COIJBI BEFOaiSB.
Oct. :
■h&ll be maintftined under it unleBs com-
menced within two years from the time the
cause of acUon accrued. Before this last
amendment the third and fourth counta of
the declaration stated a case of u^ligence
plainly within the terms of the Employ-
ers' Liability Act, and claimed damages for
the death of deceased from injuries which
the prior amendment alleged caused him
to "suffer intenae pain." Under these two
counts as they then stood, testimony
admitted, without objection, tending to
prore thst the deceased suffered pain dur-
ing the comparatively short interval ba-
tween the time he was Injared and when he
lapsed into the period of ODConjadoaaness
which preceded his death.
As we have seen, the fourth count, before
the amendment objected to, allied that
ihe injuries received caused the deceased
to suffer "intense pain," and the added alle-
gation is that the injuries caused him "con-
scious pain and aulTering." The difference
between the two, if there Is any difference
at all, is too elusive for application in the
J practical administration of justice, sad the
■ claim that 'tliia amendment added a new
cause of action to the declaration Is too
fanciful for discussion. At moat it was a
slight elaboration of a probably suFGciently
claimed element of damage, and the allow-
ance of the amendment was welt within the
authority and the effect of Missouri, K. k
T. R. Co- T. Wulf, 22a U. S. 570, 57 L- ed.
8SS, 33 Sup. Ct Bep. 135, Ann. Cas. 1014B,
134; Illinois Surety Co. v. United States,
S40 U. S. 214, <S0 L. ed. 600, 36 Sup. Ct.
Bep. 321; and Seaboard Air Line K- Co.
T. Renn, 241 U. 8. 290, SO L. ed. 1006, 36
Sup. Ct- Rep. 667.
A word will suffice for the claim remain-
ing. The trolley pole against which plain-
tiff's decedent struck was shown to be eon-
■iderably closer to the trade than the other
poles on the line, and It is sufficient to say
that the trial and appellate courts boQi
found that the maintaining ol such pole
to close to the track that a conductor could
not safely discharge the duties required of
him constituted evidence of negligence suffi-
cient to justify submitting the ease to the
jury, and with this conclusion we cordially
agree.
The record shows that the case was sub-
mitted to the jury in a comprehensive
charge sufficiently favorable to the defend-
ant, and the judgment of the Court of Ap-
peals of the District of Columbia is affirmed.
Tie Cthev Juanoi did not -take part In
the consideration or decision of, this case.
(U4 U. a OT)
AMERICAN EXPRESS CCmPAITY, Oeois*
C. Taylor, Individually and as President
of the American Eipress Company, and
Wells Fargo & Company, PIffs. in Err.,
STATE OF SOUTH DAKOTA EX REU
CLARENCE G. CALDWELL, as Attor^
ney General of the StaU of South Dakota,
OanniERa ^s26 -~ Intebstatb OoiocEacE
COHUIBBIOH — AnTHOBIZIIta EiCFBKSS
CoMPAHIEB TO B&iax IlTTBASiaTK EAISS.
1. Implied authority both to maintain
interstate express rates and to raise t«
their level the Intrastate rates involved waa
given to express companies by an order of
the Interstate Commerce Commission direct-
lug such companies to remove an existing
discriminatioa against Interstate commcrca
by ceasing to charge higher rates between
Sioux City, Iowa, and South Dakota pointa
than for substantially equal distances be-
tween such South Dakota pointa and fiva
named South Dakota cities, where the re-
port of the Commission, which was made a
part of the order, eontsins a finding that
the interetat« rates, which had been pr*-
•cribed by the Commission, were not shown
to be unreasonable.
[GO. Nola.—F'or otber oases, ses Csnlers,
Cest. Dig. fl ST-B2.]
CaKKIERS ^=328 — IltTEBSTATB CoKlCERCE
CouuiBsioH — FiNDiNoa — DiacmMiNA-
TioTT — Reasonableness or Intebstate
AND IirTaASTATE Bates.
Z. A finding of the Interstate Com-
merce Commission that interstate express
rates between Sioux City, Iowa, and South
Dakota points are reasonable, made when
ordering the express companies to remove
an existing discriminatitni against inter-
stata commerce by ceaaing to charge higher
rates between such points than for sub-
stantially equal distances between such
South Dakota points and five named cities
In that Btate,--doeB not ueeessarily imply
that the intrastate rat«s are unreasonable.
[Ed. Nate.— Far other ossm, see Carriera,
Ceul. Dig. 11 ei'tl.1
CoMUEBCE <e=>S5 — Fedesai. Powbb oveb
Intbastate Rates — AuTHOBrrr o» Iji-
TEBSTATE COHMKRCB COUVISSION.
3. Congress could and did invest th«
Interstate Commerce Commission with au-
thority to remove an existing discrimination
against interstate commerce by directing a
change of an Intrastate rate prescribed by
stat« authority.
[Gd. Note.— For otLer cues, ase Coromere*.
Cent. Dlj. i IM.]
CaBBJBBS «=>32{1)— IhTEBSTATK OoiflOBCE
Commission— PowKBa — HBonj:,ATiHa Ih-
TaASIATB Ratks.
4. An order of the Interstate Commerce
Commission directing express companies to
remove an existing discrimination sgainst
Interstate commeroe by ceasing to diarge
higher rates between Sioux City, Iowa, and
South. Dak9ta pointa than for aubstantiallf
le * KBT-NUUBBR In all Kef-Numbered Olcesta * ladai
D,at,z.d-,.'^-.00'^IC
MIS. AMBRICAN EXPRESS CO. r. 80TJTH DAKOTA EX BEL. CAXOWELL. 057
•qaal dUtance* b«twMii mch South DiJcobt
poitita uid Ave named SouUi Dakota citiM
u not invalid becauae it leaTea to tha ax-
Ereas companie* a discretioii to determine
ow the disc rim iri at ion Bhall be removed,
whether by lowering the interstate rate*,
which the CommlaBioa found were not un-
reasonable, or by r&iHing the Intrastate
rates, or hy doing both.
[Ed. Nota.—Tor other oaue, see Canian,
Cent. Sic. I n.]
CouUEBCE 4=3SnS) — CoitFUcrnna State
AMD FCDEKAL &Eam.ATJons — Raibiko
Local Exfbess Rates tjndbb Sanction
OF IltTBRSTATC OOHUIXCS ComiiBsioit—
S. The requirement of 9. D, Laws ISll,
chap. 207, § 10, as amended by Laws IBIS,
chap. 304, that no adTanee in intrastate
rates may Ik made except after thirty days'
notice to the Board of Railroad CommiHsion-
eri by the filing of schedules, and to the
public by publication and posting la erery
office of the carrier In the state, may be dis-
regarded by exprees companies when raising
Intrastate rates conformably to an order
of tJie Interstate Commerce Commissloii,
which directed such companies to remove
an existing discrimination against inter-
state commerce by ceasing to charge highei
rates between Sioux City, Iowa, and South
Dakota points than for subBtsntially etjual
distances between such South Dakota points
and five named South Dakota citic
Cakribbs ^=>32(1)— Intebstate Comuerce
GOUCIHSTOlt — HBQULATINO Ikteabtatk
Ratbb— Soopx or Obdee.
a. The intrastate rates involved In
order of the Interstate Commerce Cnnm
■ion directing express companies to remove
•B existing discrimination against inte~
state commerce by ceasing to charge highi
rates between Sioux City, Iowa, snd South
Dakota points than for substantially equal
distances between such South Dakota points
and five named South Dakota cities must
be deemed to bo those only between the fivs
named cities and points in competitive ter-
ritory, i, e., those commercially tributary
both to the five cities and to Sioux City,
Iowa, In view of the qualification of the
general words of such order by the clause,
^hidi said relation of rates has been found
by the Commission to be unjustly discrimi'
natory," and of the report of the Commis-
sion, made a part of the order, which makes
tt clear that the order applied only to com-
petitive territory in the southeaatem seo-
tion of South Dakota.
"EM. Not*.— for otbsr cues, ss* Csirlers,
OMit Dig. I S3.]
ComxRCE «=8<15) — CoNrucTiNO State
AND FEDEKAL REGUIJ.TION — Fedebai.
Beovlation or Iktbabtate Rates— Ih-
DEPIHITENESS Or OBUES Or iHTEMTATE
GOltHXBOE COUUBBIOK.
7. An order of the Interstate Commerce
Commission directing express companies to
remoTS an existing dlflcrimination against
Interstata comm0c« by ceasing to charge
hicber rates between Sioux Clt3:..Iaws, and
South Dakota point* than for substantially
equal distances between such South Dakota
points and five named South Dakota cities
IS not BO indefinite a* not to serve the ex>
press companies aa a justification for failure
to observe the regulations and orders im-
posed by state authority respecting such
Intrastate rates, since the necessary data for
adjusting the rates in controversy is fur-
nished by the limitation in such order to
the relation of rates to and from Sioux
City, and to and from the five South Dakota
citie* "under substantially similar circum-
stances and conditions and for substantial-
ly equal distances," and by the statement in
Uie Commission's report, which is mads a
part of the order, that one of auch express
companies operates over the lines of the Chi-
cago i, Korthwesteru and Chicago, St. Paul,
Minneapolis, & Omaha Railway Companies,
and the other over the line of the Chicago,
Milwaukee, ft St. Paul Railway Company.
CouETS «=3489(9)— CoKrucnNQ State ai»b
ES:dEBAI. JlTElBDIOTION— EJNJOININO Ob-
EB or iNTEBaTATB ComuBcs Couaa-
8. A state court has jurisdiction, not*
ithstanding the exclusiveness of Federal
jurisdiction under the Acts of June 13, IBIO
(3(t Sut at L, 630, chap. SOS, Comp. Stat.
lOia, § 993), and October 22, 1913 (38 Stat,
at L. S19, chap. 32), of suits "to enjoin,
set aside, annul, or suspend in whole or in
part any order of the Interstate Commerc*
suit to enjoin express
tarin's increasing intrastate rates, although
the answer sets up aa a justification an or-
der of the Interstate Commerce Commis-
sion directing such express companies to
remove an existing discrimination against
interstate commerce by ceasing to charga
higher rates between Sioux City, Iowa, and
South Dakota points than for substantially
equal distances between such South Dakota
points and five named South Dakota cities,
where such answer does not allege that alt
the Intrastate rates to and from the five
cities, which had been advanced, were so
advanced in compliance with the order of
the CommisBiou, but merely alleges that tb*
rates applied were those prescribed "for in-
terstate trafiio between points within and
points without the state of South Dakota,"
and such special tariffs include advances of
rates between the five cities and many
points in the state to which the Commis-
sion's order did not apply.
[Ed. Note.— For otlur cams, sm Courts, CsdL
Dls. f 13K.1
[No. S02.]
IN ERROR to the Supreme Court of tha
State of South Dakota to review a d*-
one which anjoined express companiea from
M topic A KBY-NUUBStt In all Kar-Ntuibsred DlgeSU * Indm
A^^OOglC
87 BUPBEME COUBT BBPOBTEH.
Ooc Tebm,
ftdvaaclng Intrastate rat«a wbich tiit ex-
press eompuiiag stteinpl;ed to justify by
an order of the Interstata Commeroe Com-
mission directing them to remove an ex-
isting dUcritnination against interstata
commerce by cessing to charge higher rates
between Siouz Cily, Iowa, and South Da-
kota points than for aubatantially equal dis-
tances between aueb South Dakota points
and five named South Dakota cities. Modi-
fied bj diasolviag injunction bo tar as it
extends to rates in the competitive territory,
and &s modified aCBrmed.
See same case below, — 8. D. — , P.UJl.
1017C, 471, 181 N. W, 332,
The facts ars stated in the opinion.
Messrs. C. O. Bailey, Branch P. Ker-
foot, T. B. Harrison, J. H. Voorheea, and
C. W. Stockton for plaintiff* in error.
Messrs. John Barton Payne, B. B. Scott,
■nd A. P. Hiunburg, Eia amici curiie, on be-
half of Illinois Central Railroad Company.
Messrs. Oliver E. 6w«et, Byron 8.
Payne, P. W. Dougherty, and Claxenoe C
Caldwell for defendants in error.
Messrs. Cbarlea W. Necdham and Joseph
W. Folk, as amici curi«, on behalf of the
^luterBtate Commerce Commission.
* *Mr. Jnltics Brandeis delivered ib* opin-
ion of the court ;
a In 1912 th« Interstata Commerce Com-
g mission entered npon a comprehensive in-
• Testigation of express rates, (practiees, ac-
counts, and revenues. Its report^ rssulted
in the establishment, on February 1, lfil4,
throughout the United States, of the ao-
ealled uniform lOne and faloek system of
rates in interstate transportation, and the
prompt adoption, in forty stat«s, of the
same systfin in intrastate transportaUon. '
South Dakota did not adopt the national
system. It adheres to a sohedula of maxi-
mum express charges, known as Distance
Tariff No. 2, whkh was promulgated by its
Board of Bailroad Commissioners in 1911,
which, on weighted avBrage, is about
40 par cent lower than the Zone and blocic
system. Shij^era of Sioux City, Iowa, oom*
plained that the differences between these
interstate and IntraitAte scales of rates re-
sulted In unjust discrimination against
them, to the advantage of their South Da-
kota competitors. FroceedingE to secure re-
lief were brought by them before the Inter-
state Commerce Commission; and on May
23, ISie, its report and order were filed.
Traffic Bureau T. American Exp. Co. 30 In-
ters. Com. Bep. 703. 9
This order,* couched In general terms, ^
prohibited •charging aft^ August IS, 1016 *
(later extended to September IS, IBld),
"higher rates for the transportation ol
shipments by express between Sioux City,
Iowa, and points in the state of South Da-
kota, than are contempoianeously . . .
demanded , , , for transportation under
substantially similar circumstances and
oonditions for Bubstantlally equal distances
between Sioux Falls, Mitchell, Aberdeen,
Watertown, and Yankton, South Dakota, on
the one hand, and mid points in the state
of South Dakota, on the other, which said
relation of rates has been found by the
Commission to l)e unjustly discriminatory."
The order made "the report containing its
findings of tact and oou elusions therecm"
a part thereof; and the report makes elear
that the order applied only to competitivs
territory, and that this is the southeastern
section of South Dakota. The report also
declared "that the South Dakota rates are
too low to l>e made the measure of inter<
state rates between Sioux City and South
Dakota points;" that the existing interstate
rates "have not been shown to b« unreason-
able;" that no reason has been presented
for modifying them; and that the Commis-
sion ts "under no doubt ss to how the un-
just discrimination found to exist should
be corrected;" but the report did not ex-
pressly state that the intrastate rates
1 Be Express Rates, Practices, Accounts,
ft Revenues, 24 Inters. Com. Bep. 380; 2S
Inters. Com. Rep. 132. The order was modi-
fied in some respects in 1016, 36 Inters.
Com. Htp. 3.
■ 28 Ann. Rep. of Interstate Commeroe
Commission, p. 20.
S "This case being at issue upon com-
Slaint and answers on file, and having been
uly heard and submitted by the parties,
and full investigation of the matters and
things involved having been had, and the
Commission having, on the date hereof,
made and filed a report containing its find-
ings of fact and conclusions thereon, which
said report is hereby referred to and made a
part hereof:
'^t is ordered. That the above-named de-
fandaata, aeeordli^ as they participate in '
the transportation, be, and they are hereby,
notified and required to cease and desist, on
or before August 15, lOlfi, and thereafter
to abstain, from publishing, demanding, or
collecting higher rates for the transporta-
tion of shipmenta by eipreca between Sioux
City, Iowa, and points in the state of South
Dakota, than are contemporaneously pub-
lished, demanded, or collected for transpor-
tation under substantially similar circum-
stances and etmditions for substantially
anal distances between Sioux Fklls, Mitch-
, Aberdeen, Watertown, and Yankton.
South Dakota, on the one hand, and said
points in the state of South Dakota, on the
other, which said relation of rates has been
found by the Conuulssioii t9 be unjustly di»-
crlmtnatMy."
DigitizPdbyGoO^le
lOlS. AMBRICAM XXFKBBS CO. v. SOUTH DAKOTA EZ BEL CALDWSUl 8SB
■honld b« rateed, nor did It annmerat* th»
eompetitiva point* in South Dakot* to
which the nto Adjustment should applj.
In July, 1Q16, the ezpreiB cumpaoiw con-
ferred informollr wltii the Board of Rall-
tOKd Commissioneri about Introducing in
South Dakota complete intrastate tariffs
eorreeponding with the zone and block
?** Bjstem acale, and also about introducing
■pecial tarifla on that baals eovBrLng*Tatea
between the cities of Sioux Falls, Mitchell,
Aberdeen, Watertown, and Yankton and all
other points in the state. On August & the
Board issued an order for a general InTestl-
gatlon of express ratesi and set for hear-
ing on December 4, 1918, that investiga-
tion as well as the applications to put into
•ffect these special or general tariffs,
an opinion then filed, it sud:
"The rates which shall be put Into effect
to remove the discrimination found hj the
Interstate Commerce Commission to eziet
In favor of jobbers at Aberdeen, Watertown,
Sioux Falls, Mitchell, and Tanlcton, and
against Sioux City snd its jobbers, have
not jet been determined. As these rates
»re to apply on intrastate traffic and be-
tween statifmi and over lines wholly with-
in this state, this commission [Board] is
the proper tribunal to fix t^eee rates. To
permit the putting Into effect of two sys-
tems of rates, one from the cities named
and another from all other cities in the
state, would create an Intolerable situa-
tion."
On August 25, the express companies
formally presented to the Board the special
tariffs, to become effective September IB.
And on September 12, the Board formally
refused to allow the same to be filed, and
rejected them, among other reasons, be-
cause the
"achednles have not been printed and pub-
lished, and thirty days' notice of the time
when the said proposed classifloatious,
tariffs, tables, and schedules shall go into
effect has not been given to the Board of
Railroad Commissioners of the State of
South Dakota, and to the public, as re-
quired by the provisions of 9 10 of chapter
207 of the Laws of 1011."
On the same day the attorney general
*The answer also alleged that shippers
and organizations representing the mer-
chants of the five South Dakota cities had
brought suit aj^inst these and other express
companies in the district court of the Unit-
ed States for the northern district of Iowa
to enjoin the enforcement of the order of
the Interstate Commerce CommUsiou and
ttie putting into effect of the special tariffs
above referred to; that on filing the bill
aa order of notice issued; that the United
States and the Interstate Oonunerce Cora-
mitsion appeared specially to object to the
of South Dakota and the Board of Railroad
Commissioners brought an origiual proceed-
ing in the supreme court of the state
against the American Express Company
and Wells Fargo k Company to enjoin them
from putting into effect the special tariffs —
covering all their rate* within the etatag
to^d from the five cities named; and a re-*
straining order was Issued. The defendants
complied with the restraining order; but
filed an answer in which they set up the
order of the Interstate Commerce Commis-
sion, and alleged that about August IB they
published certain express rate tables, but
that
"all rates for the carriage of express mat-
ter Intrastate throughout the state of
South Dakota were left the same as pro-
vided in the South Dakota Express Dia-
ance Tariff No. 2, Exhibit A hereto, except-
ing the rates to and from the cities of Sioux
Falls, Ahwdeen, Watertown, Mitchell, and
Yankton, and other South Dakota points;
that to the business between said cities
. . and other South Dakota points
there were applied the rates prescribed by
the Interstate Commerce Commission, as
hereinbefore set forth, for Interstate traf-
fic, between points within and points with-
out the state of South Dakotk; that ex-
cepting for the application oE the Inter-
state Commerce Commission rates to traffia
to and from said cities ... no changes
were mads In the express tariffs through-
out the state of South Dakota, as the sama
had previously existed under the provisions
of the South Dakota DisUnce Tariff So.
Here was in the answer no explicit all»'
gatlon that no change in rates had been
made except as required by the Comnua-^
sion's order.* n
* The plaintiffs demurred to the answer*
upon the grmind that It did not state facta
sufficient to constitute a defense to the suiL
The demurrer was sustained, and defend-
ant* having elected to stand on their an-
, a perpetual injnncticm was granted
on December 0, which enjoined the express
companies from putting into effect the spe-
cial tariffs presented on August 26,
'or any of Uie rates, fares, or eharges sped-
jurisdiction of the court; and that on Aug-
ust 2a, three judges sitting, an order was
entered as follows:
"the plaintiffs, with leave of court, offer
their evidence in support of the application
for a temporary writ of injunction, and the
court finds that upon the showing made
the plaintiffs would not be entitled to a
temporary writ of injunction, and therefore
declines to pass on the plea to the jurisdic-
tion . . . ." See also Brown Drug Co.
T. United States, eSS Fed. 003.
A^iOOgle
600
37 SUPKEUE COUSI BEPOBTEB.
Ooi. Im^'
fled io said tables between the cltie* of
Aberdeen, Mitchell, Siouz Falls, Water-
town, or Yankton in tbe etate of South Da-
kota and other etationa of aaid exprew
companie* in eaid Btat« . . . or . . .
charges greater , , , than the maiimum
rates . , , of . . . Diitanoe Tariff
Ko. 2 . . . unleea or until a schedule
of eiLpress rates shall have Srat been sub-
mitted to the Board of Railroad ComioiB-
sionere of the State of South Dakota and
have been regularly approved and allowed
b; said board in conformitf to the laws of
the aUU of South DokoU."!
A petition for writ of error to tliis court
was allowed December 11, 1910. He record
was filed here January 27, 1917, and in-
eluded in it is the opinion of the supreme
court of South Dakota, filed in the cause
January 20, 1917. The reasons there given
for holding that the order of the Interstate
Commerce CommiBsion is no justification
for disregarding the order ol the Board of
Railroad Commissioners of South Dakota
•f embody, In substance, the argument made
8 here on behalf of the state's officials.
* *1. The nature of the Interetate Commerce
ComraieBion's order.
In its specific direction the order merely
prohibits charging higher rates to and
from Sioux City than to and from the five
Bouth Dakota cities. It could be complied
with |a| by reducing the Interetate ratee
to the South Dakota scale, or (b) by rais-
ing the South Dakota rates to the interstate
scale, or (c) by reducing one and raising
the other until equality is reached in an
tnteroiediate scale. The report (which is
made a part of the order] contains, among
other things, a finding that the interstate
rate which was prescribed by the Commis-
sion was not shown to be nnreaaonable.
This finding gives Implied authority to the
eiprees companies both to maintain its
Interstate rates and to raise to their level
the intrasfste rates involved. The Bhreve'
port Case (HoUBton, E. ft W. T. R. Co. t.
United States) 234 U. S. 342, CS L. ed.
1341, 34 Sup. Ct. Rep. 833. For, if the
Interstate rates are maintained, the dis-
orimination can be removed only by raising
the intrsBtdte rates.
But the finding that discrimination exists
KQn December 5, 1910, the defendants
liad also applied for diBBolution of the re-
straining order, alleging, among other
things, that the United States had Insti-
tuted suit against them in the district court
of the United States for the southern dis-
trict of New York to recover the penalties
Srescribcd by Congress, to wit, $6,000 a
ay for failure to comply with the order of
the Interstate Commerce Commission; and
that t^ey were liable to further suits.
and that the Interstate rates ore rcaacmabla
does not neceasarily imply a finding thai
the intrastate rates are unreasonable. Both
rates may lie within the zone of reasonable-
ness and yet involve unjust discrimination.
Interstate Commerce Commission v. Balti-
more A, O. R. Co. 146 U. S. 263, 277, 38
L. ed. BBQ, 703, 4 Inters. Com. Rep. iZ, 12
Sup. Ct Rep. S44. Proceedings to remove
unjust discrimination are aimed directly
only at the reUttto* of ratet. If in such a
proceeding on unreasonable rate is uncov*
•red and that rate made reasonable, it U
done as a means to the end of removing
discrimination, ^e correction is an inci-
dent merely.
2. The power of the Interstate Commeroa
Commisaion.
Tlie supreme court of South Dakota de-
"If the purported order of the Commi*-^
slon does, la any respect, regulate intrarg
state oommerce. It is to that extent* void,*
owing to the Commission's want of juri*>
diction over the subject-matter." [ — 8.
D. — , P.U.R.1817C, 475, 181 N. W, 132.]
That court denies not only the intent of
Congress to confer upon the Commisaicm
authority to remove an existing discrimiuk-
tion against interstate commerce by direct-
ing a change of an intrastate rate pre-
scribed by state authority, but denies also
the power of Congress under the Constitu-
titm to confer such power upon tha Com-
mission or to exercise it directly, nie
existence of such power and authority
should not have been questioned since tba
deciaion of this court in the Shreveport
Case.
It is also urged, that even if the Commfa-
sion had power, under the circumstancea,
to order a change of the intrastate rates,
the order in question was invalid, t>ecause
the Commission, instead of specifically di-
recting the change, undertook to giva to
the carrier a discretion as to bow It should
be done and as to the territory to which ife
should apply. The order properly left ta
the carrier's discretion to determine how
the discrimination should be removed; thftt
is, whether by lowering the interstate rotee
or by raising the Intrastate rates, or by
doing both. In it« general form the ordw
is identical with that under consideration
in the Shreveport Case. Where a proceed-
ing to remove unjust discrimination pre-
sents solely the question whether the car-
rier has improperly exercised its authority
to initiate rates, the Commisaion may legal-
ly order, in general terms, the removal of
the discrimination shown, leaving upon the
carrier the burden of determining also the
points to and from which ratea must b«
changed, in ordsr to effect a ranoval of the
,A_.OOglC
UM. IIOERICAN EXFSXSS Ca T. BOOTH DAKOTA EX EEL. CALDWELL. eU
diMTmiDBtion. But wher«i u hsrt, than
1b a conflict between the Federal Mid the
etkte authorities, the CominiiBiim'i order
cannot serve as a juetiflcation for disregard-
ing a re^ilation or order iMued under etate
authority, unless, and except ao far a^ it
_iB definite ai to the territory or points to
^wliicli it applies. For the power of the
• CkiniinisBion is dominant *Mil7 to the extent
that the exercise is found by it to be neces-
sary to remove the exiating dieeriniination
againat interstate traffic. Still, "certum est
4)uod oertum reddi potest." Whether the
order here involved is definite presents a
question of construction which will be eoa-
sidered Iat«r.
3. The requirements of tha state law.
The South DakoU statute (1911, chap.
M7, I 10, as amended 1018, ehap. ZOi)
provides that no advance in intrastate rates
maj be made except after thirty days'
notice to the Board of Railroad Commis-
sioners by filing of schedules, and to the
public by publication and posting in everj
office of the carrier in the state. The special
tariff here in question, which was presented
to the Board informally at conferences in
July, was not formally offered for filing
until August 26. It was, by its terms, to
take effect September 16; and notice to the
public was not made as provided In the
statute. But these provisions cannot be
held to apply to changei in Intrastate rates
over which the Board has no control. The
proper conduct of business would suggest
the giving of scone notice (as was done by
the express companies in the instant esse) ;
but a valid order of the Commission is,
when applicable, a legal Justification for
disregarding a conflicting regulation of the
state law— because the Federal authori^ is
dominant.
4. The eeope of the order.
If the general words of the order are read
alone, they might perhaps be understood as
applying to rates between the five named
South Dakota cities and oU other "points"
in South Dakota. But the order explicitly
makes the report which is filed therewith a
part thereof; and the order itself alao quali-
fies the general words used, by the clause:
"Which said relation of rates has been
found by the Commission to be unjustly
discriminatory." Ilie report makes it thus
^ perfectly clear that the order affiles only
g to the "points" in competitive territory,
■ or,*as the supreme court expresses it, those
"ooramerciftlly tributary" both to the five
cities and to Sioux Ci^. That terrrltory,
as the report also shows. Is the southeast-
ail part of South Dakota; and aa to this
alone, the discrimination waa found to exist.
Tie express companies wars not warranted
by ai^thinc in tha ordsr ia -'-"-- "-
spedal tariffs of rata to and from the flva
cities to include "points" in every part of
the state. As to all rate advances other
than those in the competitive territory,
their action waa unauthorized.
It ts urged on behalf of the state offielala
that the order does not show with the neces-
sary precision to what "points" It applies;
and that if not wholly rotd for indeflnit*-
nees. It at least cannot serve as a justifi-
cation for failure to observe the regulations
and orders imposed by authority of ths
state. In cases of this nature, where the
dominant Federal authority i* exerted to
affect intrastate rates, it is desirable that
the orders of the Interstate Commerce Com-
mission should be eo definite as to the ratea
and territory to be affected as to preclude
misapprehension. If an order Is believed
to lack deflniteneaa an application should
be made to the Commission for further
specifications. But the order, although less
explicit than desirable. Is, when read in eon-
nection with the railroad map, not lacking
in the requisite definiteness. As the order
Is limited to the relation of rates to and
from Sioux City and to and from the five
South DakoU cities "under substantially
similar eircuniatances and conditions and
for substantially equal distances," and the
report states that the American Express
Company operate* "over the lines of the
Chicago k Northwestern Railway Company
and the Chicago, St. Paul, Minneapolis, ft
Omaha Railway Company," and that the
Wells Fargo t Company operates "over the
Chicago, Milwaukee, ft St. Paul Railway
Company," it furniahes the necessary data«
for adjusting ths ratea in controversy. g
*&. The Jurisdiction of the state court *
It Is urged that the supreme court of
South Dakota erroneously assumed Juris-
diction, because this proceeding is an
attack upon an order of the Interstate Com-
merce Commission; that by the Act of Con-
gress (36 Stat, at L. 630, 640, 643, chap.
309, Ccmp. Stat. IBIS, | 003) sxclnsive
power "to enjoin, set aside, annul, or sus-
pend in whole or in part any order of this
Interatate Commerce Commission" was
vested In ths conuueres court; and that by
the Act of October S2, 1013, abolishing
that court (38 Stat, at L. 219, chap. 32),
the exclusive power waa transferred to the
several district courts. If this were a pro-
ceeding professedly "to oijoin, set aside,
annul, or suspend" an ordsr of the Com-
mission "In whole or in part," a state court
would obviously have no jurisdiction, ^e
bill does not purport to attack, nor does It
even refer to, any such order. It allegea
only that the express companies propose
"increases and advances" In charges for in-
tnstatt traniportatiu, hgr
v.A^^OOglC
37 SDFREMB COUfil BEPOBTER.
"existing interatkU imtM." It ia th« an-
awer vUch leta up the order of the Com-
tniuion aa a justiScatloD ; and plaintiffs
den; that It is such. Whetlier or not the
■tate court baa jariBdiction cannot, of
eoune, depend upon tbe profeaeed purpow
of tlie proceeding noi apmi the mere lorm
of pleading. An order maj be as elTectiTelj
annulled bj miaeonstruction aa hj ayowed-
ij setting It aside. But we have no oo-
BasioiL to determine in the instant case
under what drcunutances and ia what ex-
tent the effect of ordera of the Commieeion
may be questioned In state courts. The
answer does not allege that alt the intra-
state rates to and from the five cities which
hare been advanced were advanced in com-
pliance with the order of the Commisaion.
It alleges merelj that the rates ^plied
were those prescribed "for interstate traffic
^between points witbis and points without
gthe eUte of South DakoU;"* and it is
• dear that the*q>ecial tariffs here in ques-
tion include advances of rates between the
Dve cities and mauj "points'* In the state
to which the Commission's order did not
apply. It eould not, therefore, afford a
justification for putting into effect those
intrastate rates without first mailing the
publication required bj the state law and
securing the approval of the state board.
These rates the supreme court of South Da-
Icota had jurisdiction to enjoin, and the
decree must be affirmed to tliat extent. It
Is also clear that the decree of the supreme
court, in so far as it enjoined the express
companies from advancing ans intrastate
nt« to and from the five cities until the
same shall have been approved by the South
Dalcota Board of Bailroad Commissioners,
was erroneous. 80 far as it extends to
rates in the competitive territory as to
which discrimination was found to exist, it
must be modified and the injunction dis-
solved. With this modification the decree
of the state court is affirmed and the cause
remanded for further proceedings not in-
consistent with tills opinion.
It is so ordered.
Mr. Justice McKeno* dissents.
■ The claim titat the express compsjiies
attempted to males only those changes which
were required to comply with the order of
the Commission was first explicitly made
in the petition for writ of error to this
court. Tlipre was, however, in the motion
filed December 5, to dissolve the reetraining
order, a general allegation that the oqiTeBS
companies "were ordered to put into effect
the rates restzained" by the stftte court.
Oof, Tsui,
(Ml O. 8. «W>
JOB ADAUS et al., Appta,
W. V. TANNER, Attorney General of th»
State of Washington, and George H.
Crandall, Prosecuting Attorney of Spo-
kane County, State of Washington,
iHJvncnoiT «=3l05<2>— Bestraihivo Gbik-
— AI. PnOCEXDINOS.
1. The enforcement by the attorney gen-
eral and county nrosecuting attorney of
the prorlslons of tke Washington Employ-
ment Agency Law (Wash. Laws 1915, chap.
1), mailing it criminal to collect feee from
worliers for furnishing them with employ-
ment or with information leading thereby
may be restrained by a court of equity at
the instance of persons conducting employ-
ment agencies under municipal licenses who
assert that their business will l» destroyed,
contrary to U. S. Const. 14th Amend., by
the enforcement of such statute.
[Bd. Note.— For other cases, see lajnocUon,
Cant DlK. I 171.]
MaSTKB and SSBVAItr ^=>J0^^BUPLOT-
KEKT Aaxitox— PsoHiBinoir os Kkoui.a-
TtOlT.
2. Prohibition, not r^ulatlon, is what
is accomplished by the provisions of the
Washington Employment Agenoy Law
(Wash. Laws 1615, chap. 1), making ib
criminal to collect fees from workers for
furnishing them with employment or in-
formation leading to such employment, al-
though fees may still be collected from
those seelting workers.
CoBffTiTUTioNAL Law ♦»27(K1)— I>oi Pw>-
CEBB OF Law — Pbohibittho Bhplot-
IfBNT Aqencies.
3. The right of the individual under
U. 8. Const. 14th Amend, to engage in •
useful and lawful Iiusineea is unwarrant>
ably infringed by the provisione of the
Washington Smploymuit Agency Law
(Wash- Laws 1915, chap. 1), enacted in
the purported exercise of the police power,
which make it criminal to demand or re-
ceive, either directly or indirectly, from
any person aeeking employment, or from
any person on his or her behalf, any re-
muneration or fee for furaisbiog such per-
son with employmoit or with ioformatioa
leading tliereto.
[Hd, Rote.-Tor olhiir cssm, mee " "
IjSW. CsBt. Dis. If B30. 899. S4S,1
[No. 278.]
APPEAL from the Dbtrlct Court of the
United States for the Eastern District
of Washington to review a decree dismis-
sing the bill in a suit to enjoin the enforce-
ment of the Employment Agency Iaw of
that state. Beversed and remanded for
further proceedings.
See same case below, on motion for tem-
porary injunction, 221 Fed. 694.
The facts are stated in the opinicM.
k KBT-NOHBBB In all Sey-Kvmbsred DIsesia * taimm
' UlS.
ASAUS T. lANBKE.
«3
Uefwra. DftUas T. Halrenudt, Qmigt
Ferris, Edwud J. Cannon, and Sajnuel H.
Pilea for appellonU.
Mr. L. L. Thompson and Mr. W. T.
Tauner, Attorney General of Washington,
^ lor appellees.
s
■ *Mr. Jnatice BfcReynoIda delivered tha
opinion of tlie court:
Initiative Measure Number 8 — popularly
known as "The Employment Agency Law" —
having been submitted to tlie people of
Washington at the general election, re-
ceived a majority vot« and was thereafter
declared a law, effective December 3, 1B14,
as provided by the state Constitution.
Wash Laws 1015, chap. 1. It follows:
"Be it enacted by the people of the state
«f Washington:
"Section 1. The welfare of the state of
Washington depends on the welfare of its
workers and demands that they be pro-
tected from conditions that result in their
being liable to imposition and extortion.
"The state of Washington therefore ezer-
elsing herein its police and sovereign power
declares that the system of collecting fees
from the workers for furnishing them with
employment, or with information leading
thereto, reaultt frequently in their becoming
the victims of imposition and extortion and
is therefore detrimental to tha welfare of
the sUte.
"Section 2. It shall be unlawful for any
employment agent, his representative, or
any other person to demand or receive either
directly or indirectly from any person seek-
ing employment, or from any person on his
or her behalf, any remuneration or fee what-
■oever for furnishing him or ber with em-
ployment or with information leading
thereto.
"Section 3. For each and every vlola-
Uon of any of the provisions of this act
the penalty shall be a fine or [of] not more
than $100 and imprisonment for not more
than thirty daya."
In Huntwortli v. Tanner, 87 Wash. 070,
162 Fac. 523, the supreme court held school-
teachers were not "workers" within the
^quoted measure, and that it did not apply
g to one conducting an agency patronized
■ only by such teachers*and their employers.
And in St»te v. Bowman, 93 Wash. fiSO.
I..ILA.1S1TB, 1270, 161 Fae. 340, tlie same
court declared it did not In fact prohibit
employment agencies, since they might
charge fees against persons wishing to hire
lalwrers; that it was a valid exercise of
state power; that a stenographer and book-
keepei is a "worker;" and that one who
diarged him a fee for furnishing informa-
tloB laadiug in mploymBBt violated the
As members of eoparbwrshlps and under
municipal licensee, during the year 1914
and before, appellants were carrying on In
the city of Spolcane well established agen-
ciea for securing employment for patrons
who paid fees therefor. November 25, 1914,
in the United States district court, tliey
filed their original bill against W. V. Tan-
ner, attorney general of the state, and
George H. Crandall, prosecuting attorney
for Spokane county, asking tliat Initiative
Measure Number 8 be decl&red void because
in conflict with the 14th Amendment, Fed-
eral Constitution, and that the defendants
be perpetually enjoined from undertaking
to enforce it. On the same day they pre-
sented a motion for preliminary injunction,
supported by affidavits which were eubse*
quently met by countervailing ones. Ap*
pellees thereafter entered motions to dis-
miss the original bill because (1) "said bill
of complaint does not state facts sufBcient
to warrant this court in granting any re-
lief to the plaintiffs; (2) that plaintiffs
have a plain, speedy, and adequate remedy
at law; (3) this court haa no jurisdiction
over the persons of these defendants or
either of them, or the subject-mattM' of this
action." A temporary injunction was de-
nied. TbB motions to dismisa were sus-
tained and a final decrca to that effect fol-
Considering the doctrine afBrmed In
Truax v. Raioh, 239 U. 8. 33, 60 L. ed. 131,
L.IL&.1B1BD, S45, 3S Sup. Ot Bep. 7, and
cases there cited, the record presents no
serious question in respect of jurisdiction.^
^e bill alleges "that the employment*
business 'consists in securing places for per-*
sons desiring to work," and unless permit-
ted to collect fees from those asking assist-
ance to such end the business conducted by
appellants cannot succeed and must 1m
abandoned. We think this conclusion Is
obviously true. As paid agents their duty
is to find places for their principals. To
act In behalf of those seeking workers is
another and different service, although, of
course, the same individual may be engaged
In both. Appellants* occupation as agent
for workers cannot exist unless the latter
pay for what they receive. To say it is not
prohibited because fees may be collected tor
something done In behalf of other principals
b not good reasoning. Tlia statute is one
of prohibition, not regulation. "Yon take
my house when you do take the prop that
doth sustain my house; you take my lite
when you do take the means whereby I
Uvo."
We have held ouployment agencies are
subject to police r^ulation and control.
"His general nature of the bvrineas is
Bach that, anless rsfnlated, maay pareens
A^^OO^IC
87 SUPREME CODBT REPORTEB.
Oct. 1
may be exposed to miBfoTtuoe* ngalnat
wliich the legislature can properly protect
them." Brazee v. Michigan, Z41 U. S. 340,
343, SO L. ed. 1034, 1036, 36 Sup. Ct. Rep.
661. But we think It plain that there is
nothing Inherently immoral or dangeroug to
public welfare in acting as paid representa-
tive of another to ftod a position in which
he can earn an honest living. On the con-
trary, such service ia useful, commendable,
and in great demand. In Spokane v. Macho,
61 Wash. 322, 324, 2t L.RJV.(N.S.) 263,
130 Am. St. Rep. 1100, 98 Pac 755, the
supreme court of Washington said: "It
cannot be denied that the business of the
employment agent is a legitimate business ;
as much so as is tbat of the banker, broker,
or mcrchaDt; and under the methods pre-
vailing in the modern biuineaa world it may
be said to be a necessary adjunct in the
prosecution of business enterprises." Con-
cerning the same subject. Ex parte Dickey,
144 Cal. 234, 23S, 68 L.R.A. 928, 103 Am.
St. Rep. 82, 77 Pac. 924, 1 Ann. Cas. 428,
the supreme court of California saidi "The
4 business in which this defendant is engaged
• is not only innocent and (innocuous, but is
highly beuellcial, as tending the mare quick-
ly to secure labor for the unemployed.
There is nothing in the nature of the buei-
ness, therefore, that in any way threatens or
endangers the public health, safety, or
morals." And this conclusion is fortified
fay the action of many states In establish-
ing free employment agencies charged witb
the duty to find occupation for workers.
It is alleged: "That plaintiffs have fur-
nished positions for approximately ninety
thousand persons during the last year, and
have received applications for employment
from at least two hundred thousand labor-
ers, for whom tbey have been unable to
furnish employment. . . That such
agencies have been established and conduct-
ed for BO long a time that they are now
one of the necessary means whereby persons
seeking employment are able to secure the
same." A suggestion in behalf of the state,
that while a pursuit of this kind "may be
beneficial to some particular individuals or
in specific cases, economic si ly it is cer-
tainly nonuaeful, if not vicious, because it
compels the needy and unfortunate to pay
for that which they are entitled to without
fee or price, that is, the right to work,"
while possibly indicative of the purpose held
by those who originated the legislation, in
reason, gives it no support.
Because abuses may, and probably do,
grow up in connection with this business, i
is adequate reason for hedging it about by I
proper regulations. But this is not enough I
to justify destruction of one's right to fol- [
low a distinctly useful ealling in an up-
right way. Certainly there is no profession,
possibly no business, which does not offer
peculiar opportunities for reprehensibie
practices; and as to every one of tliem, no
doubt, some can be found quite ready earn-
estly to maintain that its suppression would
he in the public interest. Skilfully directed
agitation might also bring about apparent^
condemnation of any one of them liy theg
public. Happily for all, the'fundamental*
guaranties of the Constitution cannot be
freely submerged if and whenever some os-
tensible justi^ cation is advanced and tbs
police power invoked.
The general principles by which the va-
lidity of the challenged measure must be
determined have been expressed many times
in OUT former opinions. It will aulGce to
quote from a few.
In Allgeyer v. Louisiana, 165 U. S. 578,
589, 41 L. ed. 832, 835, 17 Sup. Ct. Rep.
427, we held invalid a statute of Louisiana
which undertook to prohibit a citizen from
contracting outside tlie state for insurance
on his property lying therein because it
violated the liberty guaranteed to him by
the 14th Amendment. "The liberty men-
tioned iu that Amendment means not only
the right of the citizen to be free from the
mere physical restraint of his person, as by
incarceration, but the term is deemed to
embrace the right of the citizen to be free
in the enjoyment of all his faculties; to be
free to use them in all lawful ways ; to live
and work where he will; to earn his liveli-
hood by any lawful calling; to pursue any
livelihood or avocation, and for that purpose
to enter into all contracts which may be
proper, necessary, and essential to his carry-
ing out to a successful conclusion the pur-
poses above mentioned."
"If, looking at all the circumstances that
attend, or which may ordinarily attend, the
pursuit of a particular calling, the state
thinks that certain admitted evils cannot be
successfully reached unless that calling be
actually prohibited, the courts cannot inter-
fere, unless, looking through mere forms
and at the substance of the matter, they
can say that the statute enacted professedly
to protect the public morals has no real or
substantial relation to that object, but it
a clear, unmistakable infringement of
rights secured by the fundamental law."
Booth V. Illinois, 184 U. S. 425. 420, 46 I*
ed. 623, 820, 22 Sup. Ct. Rep. 42j.
"It is also true that the police power of
the state is not unlimited, and ia subjects
to judicial review, and when'exerted in an*
arbitrary or oppressive manner such laws
may be annulled as violative of rights pro-
tected by the Constitution. While lh«
courts can set aside legislative enactment*
upon this ground, the principles upon which
,A_.OOglC
■nch Iiit«rferenett la wuranted an as well
■ettled IS is the right of judicial interfer-
«nee itself. The legislature, being familiar
with local condition!, is, piimarily, the
judge ot the neceasity of such enactmentB.
The mere fact that a court may differ with
the l^alature in its views of publio policjr,
«r that judges may hold views ineonsiBtent
with the propriety of the legislation In
question, aSords no ground for judicial in-
terference, unless the aet in question is un-
mittakablj and palpably in excesa of legis-
lative power. ... If there existed a
«onditioii of affairs concerning which the
legislature of the state, exercising its con-
ceded right to enact laws for the protection
of the health, safety, or welfare of the
people, might paes the law, it must be sus-
tained; if such action waa arbitrary inter-
ference with the right to contract or carry
on business, and having no just relation to
the protection of the public within the
•cope of legislative power, the act must
<ai]." McLean v. Arkansas, 211 U. S. G3D,
647, 648, G3 L. ed. 316, 219, 820, 2B Sup.
Ct. Rep. 206.
"The 14th Amendment protects tha eitt-
sens in his right to engage in any lawful
bueineas, but it does not prevent legisla-
tion intended to regulate nseful occupa-
tions which, because of their nature or loca-
tion, nay prove injurious or offensive to the
public. Neither does it prevent a tnunici-
pality from prohibiting any business which
is inherently vicious and harmful. But, be-
tween the useful business which may be
regulated and the vicious business which
can be prohibited lie many nonuseful occu-
pations which may, or may not be harm-
ful to the publio, according to local condi-
tions, or the manner In which they are
conducted." Murphy v. California, 225 U. S.
423, 628, S6 L. ed. 1229, 1232, 41 L.R.A.
(N.S.) 153, 32 Sup. Ct Rep. SOT.
I "An Act to Prohibit the Collection of
Fees for the Securing of Employment, or '
Furnishing Information Leading Thereto,
and Fixing a Penalty for Violation Iliere-
of.
"Be it enacted by the people of the state
«f Wasliington:
"Section 1. The welfare of the state of
Washington depends on the welfare of ite
workers and demnnds that they be pro-
tected from conditions that result In their
beinf; liable to imposition and extortion.
"The state of Washington therefore
from the workers for furnishing them with
employment, or with information leading
thereto, results frequently in their becom-
ing the victims of imposition and extortion
and is therefore detrimental to the wdfare
td the state.
"Section Z. It shall ba unlawful to any
MS
We are of opinion that Initiative Measure^
Number 8, as* constructed by the supreme*
court of Washington, is arbitrary and op-
pressive, and that tt unduly restricts the
liberty of appellants, guaranteed by the
14th Amendment, to engage in a useful
business. It may not therefore be enforced
against them.
The judgment of t^e Bourt below Is re-
versed and the cause remanded for further
proceedings in conformity with this opinion.
Reversed.
Mr. Justice HcKenna dissenta upon tlia
ground that, under the decisions of this
court, — some of them so late as to require
no citstion or review, — the law in question
is a valid exercise of the police power of
the atata, directed against a demonstrated
Mr. JusUce Brandeta, dissenting)
To declare the statute of a state, enacted
In the exercise of the police power, invalid
under the 14th Amendment, is a matter of
such seriousneai that I sta.te the reasons
for my dissent tnm the opinion of tba
The statute of the state of Washington,
commonly known as the "Abolishing Em-
ployment Offices Measure," was proposed by
Initiative Petition No. 8, filed July 3,
1914, and was adopted November 3, 1Q14, at
the general election; 162,054 votes being
cast for the measure and 144,644 against it.
In terms the act merely prohibits the taking^
of fees from those seeking employment. 1 g
'Plaintiffs, who are proprietors of privata*
employment agencies in the city of Spokane,
assert that this statute, if enforced, would
compel them to discontinue business and
would thus, in violation of the 14th Amend-
ment, deprive them of their liberty and
property without due process of law. The
employment agent, his representative, or
any other person to demand or receiv*
either directly or indirectly from any per-
son seeking employment, or from any per-
son in his or her behalf, any remuneratioD
or fee whatsoever for furnishing him or
her with employment or with information
leading thereto.
"Section 3. For each and every viola-
tion of any of the provi^ons of this act the
penalty shall be a fine or [of] not more
than jlOO and imprisonment for not more
than thir^ days."
The supreme court of Washington haa
twice passed upon the scope of the aet;
holding in Huntsworth t. Tanner, 87 Wash,
670, 152 Pao. 523, that It is not applicable
to tea^eia, and In State t. Romman, 93
Wash. 630, LJLi. 1917B, 1276, 161 Pac
849, that it Is applicable to atenofraphera
and bookkeepers^
,A_.OOglC
n BOPSXUX COUBT REPORTEB.
Oor. TiBit,
act le&vei flia pUJntiffa free to eoHect fee*
from employer* ; and it appesirt that private
employment offices thui restricted are still
carrying on business. ■ But even it it
5 should prove, as plaintiffs allege, tliat their
business eould not live without collecting
• fees *fron) employeei, that fact would not
neceessTily render the act invalid. Private
•mployment agencies are a business properly
subject to police regulation and control.
Braiee v. Michigsn, 241 U. S. 340, 00 L. ed.
1034, Se Sup. Ct. Rep. 661. And this court '
has made it dear Uiat a statute enacted
to promote health, safety, morals, or the
pnblie welfare may be valid, although it
will compel discontinuance of existing busi-
nesses in whole or in part. Statutes pro-
hibiting the manufacttire and sale of liquor
present the most familiar example of such
ft prohibition. But where, as here, no
question of interstate commerce is involved,
Uiis court has siutained also statutes ur
municipal ordinances which compelled dis-
coatinusnce of such business as (a) of
manufacturing and selling oleomargarin
(Powell T. Pennsylvania, 127 U. S. 078, 32
L. ed. 263, 8 Sup. Ct. Rep. 902, 1267);
(b) of selling eigsrettes (Austin v. Tennes-
see, ITO U. S. 343, 46 L. ed. 224, 21 Sup. Ct.
Rep. 132); (o) ot selling futures in grain
or other commodities (Booth t. Illlnais,
184 U. S. 426, 46 L. ed. 623. 22 Sup, Ct.
Bep. 426) ; (d) of selling stocks on margin
(Wis T. Parker, 187 U. S. 606, 47 L. ed.
823, S3 Sup. Ct. Rep. IBS) ; (e) of keeping
billiard halls (Murphy v. California, 225
U. a 623, 66 L. ed. 122B, 41 I..R.A.(N.S.)
163, 32 Sup. Ct. Rep. 607) ; (f) of selling
trading stamps (Bset v. Van Deman A L.
Co. 240 U. 8. 342, 368, 60 L. ed. STO, 091,
L.R.A.1B17A, 421, 86 Sup. Ct. Rep. 370) .
These cases show that the scope of the
police power is not limited to regulation as
distinguiebed from prohibition. They show
also that the power of the state exists
equally, whether the end songht to be at-
tained is the promotion of health, safety, or
morals, or Is the prevention of fraud or the
prevention of general demoralization. "If
the state thinks that an admitted evil can-
not be prevented except by probitnting a call-
ing or transaction not in itself necessarily
objectionable, the eourts cannot interfere,
unless In looking at the substance of the
matter, they can see that it 'Is a cear, unmis-
takable infringonent of rights Hecnred by the
fundamental law.' " Otis v. Parker, 187 U.
8. 600, 600, 47 T^ ed. S23, 327, 23 Sup. Ct.
Rep. 108; Booth v. Dlinois, 184 U. 5. 425,
429, 48 L. ed. 623, 620, 22 Sup. CL Rep. 425.
Or, as it Is so frequently expressed, the action
of the l^slature is final, nnlees the meas-
ure adopted appears clearly to be arbitrary e
•or nnTeasonable, or to have no real or sul>- ?
stantial relation t« the object sought to be
attained. Whether a measure relating to
the public welfare Is arbitrary or unrea-
sonable, whether It has no substantial rela-
tion to the end proposed, is obviously not
to be determined by assumptions tyt by
a priori reasoning. The Judgment should be
based upon a coneideration of relevant facts,
actual or possible— Ez facto Jus oritur.
That ancient rule must prevail In order
that we may have a system of living law.
It Is necessary to inquire, therefore:
What was the evil which the people of
Washington sought to correct! Why wsa
the particular remedy embodied in the
statute adopted? And, incidentally, what
has been the experience, if any, of other
states or countries in this connection T But
these inquiries are entered upon, not for
the purpose of determining whether the
remedy adopted was wise, or even for the
purpose of determining what the facte actu-
ally were. The decision of such questions
lies with the leg^slatLve branch of the gov-
ernment. Powell V. Pennsylvania, 127 U. S.
678, 686, 32 L. ed. 263, 256, 8 Sup. Ct. Rep.
992, 1267. Hie sole purpose of the Inquiries
is t« enable this court to decide whether, in
view of the facte, actual or possible, the
action of the state of Washington was so
clearly arbitrary or so unreasonable tliat
It could not be taken "fay a free government
without a violation of fundamental rights."
See MoCray v. United States, 1B6 U. S. 27,
64, 40 L. ed. 78, 09, 24 Sup. Ct Rep. 780, 1
Ann. Cas, 661.
Ha evils with which the people of Wash*
Ington were confronted arose partly from
"The free agencies, we are pleased to
be able to say, are growing in popularity,
and while they do not advertise their busi-
ness with the same thrift that the other
fellows did, tbey are craning into general
•erviee. There are three services of this
kind: The private agency Uiot receives all
eon^iensatian from employers, either 1^ the
month, year, or per the service rendered;
the Federal agen^, and the municipal
ag«icy; these latter two have offices in the
larger places and are doing good work and
the service Is free to both employee and
the empttryer. In the smaller cities and
towns the Federal Is the prevailing agency
and the postmaster of the place is neually
the loeal representative."
■ The evils incident to private empltmnent
agencies first arrested public attention in
America about 1800. I>UTing the flftee*
ysars preceding tlie enaotmeut of tiie Wask-
D,at,z.d-,.'^-.OOt^lC
ml9M. '
AflAMf? T. XANma. '
MT
* th« atnuM Incident to tlu'iystwa ot ptivat*
Mnplojmeiit agwieU* mA partlj fiom Its
tnaidequacj.
(k) Ths sbiuu.
These are lummariMd in a report pub-
lished b;r the United States Bureau of Ldbor
in October, 1912,* Uiub:
"Private employment agencies, which
eltArge ft fee for their eeivices, are found
in ever; city o[ any size in the Ualted
States. The nature of their busineBi
such as to make poesible most iniquitoi
practices. Ilieir patrons are frequently
men and women with only a dollar or two,
which thej are eager to give up for the
opportunity of earning more. Thty are
often of email intelligence and easily duped.
fitorira of how these agencies have swindled
and defrauded those who songhi employ-
ment through them are heard universally.
Some of the mora common of the fraudu-
lent methods said to be used by these agen-
eiea are the following:
"1. Charging a fee and failing to make
any effort to And work for the applicant.
"2. Bending applicants where no work
exists.
"3. Sending applicants to distant points
where no work or where unsatisfactory work
exists, but whence the applicant will not
return on account of the expense involved.
"4. Collusion between the agent and em-
ployer, whereby the applicant is given a few
days' work and then discharged to make
way for new workmen, the agent and em-
ployer dividing the fee-
"6. Charging exorbitant fees, or glrlng
jobe to such spplicanta aa eontributa extra
fees, presents, etc.
"C. Inducing workers, particularly girls,
who have been placed, to leave, pay another
e fee, and get a "better Job,"
■ '"Other evils charged against employment
agents are the congregating of persons for
gambling or other evil practices, collusion
with keepers of immoral houses, and the
■ending of women applicants to houses of
prostitution; sometimes employment offices
are maintained In saloons, with the result-
ing evils."
In the report to Congress of the United
States Commission on Industrial Relations,
created by Act of August S3, 1912 (chap.
351. 37 Stat, at L. 41S, Comp. SUt. 1010,
Ington law there were repeated inveetiga-
tions, ofRcia] and unofficial, and there was
much discussion and experimentation. See
Free Public Employment Offices in the
United States; U. S. Bureau of Labor, Bui-
leUn No. 68, p. I ; Statistics of Unemploy-
ment and the Work of Employment Ctf-
Hces. U. S. Bureau of Labor Btuletin 109,
p. 6; Subject Index of the U. B. Bureau of
tabor SUtiaUes, BuUstla No. 174, pp. 66-
I 8BI3), which gara publia hearlnga on the
subject of employment offices In May, 1914,
the abuses are found to be as follows: ■
"23. There are many private employment
agents who try to conduct their business
honestly, but tbey are the exception rather
than the rule. The buaineu as a whole
reek* with fraud, extortion, and flagrant
abuses of every kind, ^e most common
evils are as follows:
"Fees are often charged ont of all pro-
portion to the service rendered. We know
of cases where (6, $9, flO, and even $18
apiece has been paid for join at common
labor. In one city the fees paid by scrub-
women is at the rate of $24 a year for their
poorly paid work. Then there is discrim-
ination in the charges made for the same
jobs. Often, too, men are sent a long dis-
tance, made to pay fees and transportation,
only to And that no one at that place or>
dered men from the employment agent. A
most pernicious practice is tlie collusion
with foremen or superintendents by which
the employment agent 'splits fe^ with
them. That is, the foreman agrees to hire
men of a certain employment agent on con-
dition that one fourth or one half of every
fee collected from men whom he hires be
given to him. This leads the foreman to^
discharge men constantly in order to haveg
more men hired through tlie*egcDt and more*
fees collected. It develops the 'three-gang*
method so unlveraally complained of by
railroad and construction laborers, namely,
one gang working, another coming to wort;
from the employment agent, and a third
going back to iha eity.
'Finally, there is the most frequent
abuse, — misrepresentation of terms and con-
dition of employment. Men are told that
they will get more wages than are actually
paid, or that the work will last longer
than it actually will, or that there is a
boarding house when there really is an
insanitary camp, or that the cost of trans-
portation will be paid, wh«i it la to b«
deducted from the wages. They are not
told of other deductions that will be made
from wages; they are not informed about
strikes that may be on at the places to
which they are sent, nor about other Im-
portant facts which they ought to know,
e misrepresentations, it must be said,
87; Munro, Biblfo|fraphy of Municipal Qov-
emment, pp. 379-381.
* United States Bureau of Labor Bulletin
No. 108, p. 36.
• Final Report and Testimony submitted
to Congress by the Commission on Indus-
trial Belationa created by the Act of Ai^nist
28, 1912, IHtit Congress, 1st Session, Doe.
4IB, vol. 1. pp. 109-111. Bee also voL L
pp. 116S-1440.
A^iOOglC
J7 SCFEEUS CX}U£T EEPOBTBB.
Oct. Texk*
•n often ae much the fault of tlie emplorer
»8 of the labor agent. Alio tho employer
will place Mb call for help with several
agents, and each will send enough to fill
the whole order, causing fflaiij to find no
jobs. Labor agents and laborers alike are
guilty of the misuse of free transportation
furnished by employers to prospective help.
And it is true also that many applicants
perpetrate frauds on tlie labor a^fents them-
selves; aa, for example, causing them to
return fees when positions actually were
■ecured. This is the result of the general
feeling that the whole system of paying
fees for jobs is unjust; and If they must
pay in order to get work, then any attempt
to get the fee back is juatifiabte/'
(b) The inadequacy.
But the evils were not limited to what
are commonly called abuses — like the fraud
and extortion described above. Even the
exemplary private offices chargiog fees to
workers might prove harmful, for the rea-
■on thus stated in the report to Congress
of the United States Conuaission on In-
3 dnstrial Relations, cited supra.
■ '"IS. . . . Investigations show, however,
that instead of relieving unemployment and
reducing irregularity, these employment
agencies actually serve to congest the labor
market and to increase idleness and irregu-
larity of employment. They are interested
primarily in the fees they can earn, and
if tbey can earn more by bringing workers
to an already overcrowded city, they do so.
Again, it is an almost universal custom
among private employment igents to flll
vacancies by putting In them people who
are working at other places. In this way
new vacancies are created and more fees
can be earned.
''19. They also fail to meet tho problem
liecause they are so numerous and are
necessarily competitive. With few excep-
tions, there is no co-operation among them.
This difficulty is further emphasized by
the necessity of paying the registration fees
required by many agencies; obviously the
laborer cannot apply to very many if he
has to pay a dollar at each one.
"20. Tha fees which private employment
offices must charge are barriers which pra-
vent the proper flow ot labor into the
channels where it is needed and are a di<
rect influence in keeping men idle. In tha
summer, when employment is plentiful, th«
fees are as low aa 25 cents, and men ar*
even referred to work free of charge. But
this must necessarily be made up in Ui*
winter, when work Is scarce. At such times,
when men need work most badly, the privat«
employment offloes put up their fees and
keep the unemployed from going to work
until they can pay $2, $3, $5, and even
|I0 and more for their jobs. This neces-
sity of paying for the privilege of going
to work, and paying more the more urgent-
ly the job is needed, not only keeps peopU
unnecessarily unemployed, but seems for-
eign to the spirit ot American freedom and
opportunity.
"21. An additional injustice inevitabljn
connected with labor agencies which eharge§
fees is that they roust p1ace*the entire cost*
of the service upon those least able to bear
It. Employment agents say that employers
will not pay the fees; hence they must
charge the employees. Among the wage
earners, too, however, those who are least
in need and can wait for work pay the least
for jobs and even get them free, while those
who are most in need make up for all tho
rest and pay the highest fees. The weakest
and poorest classes of wage earners ara
therefore made to pay the largest share for
rendered to employers, to workers,
and to tha public aa well."
2. 'Die remedies.
During the fifteen years preceding 1914
there had been ext«isive experimentation
in the regnlation of private employment
agencies. Twenty-four states bad attempt-
ed direct regulation under statutes, often
supplemented by municipal ordinances.*
Nineteen states had attempted indirect regu-
lation throQgh the competition of stat«
r.m^iuM OH.1 •■<.«. others through competi-g
offices, and
tlon of mnnicIpal*offlces.T Other experi-
menta in indirect regulation through
• "It is not necessary here to enter into
the relative merits of governmental regula-
tion and governmental operation. Suffice it
to say that twenty-four states and the Dis-
trict of Columbia have attempted to regu-
late private employment agencies and have
made a miserable failure of it. Tie business
lends itself easily to fraud and imposition,
and it is far more true of the private agen-
cies than of the public offices that they have
been frauds as well as fsilures."
Public Employment Offices — W. M. Leis-
ersoD, Se Political Science Quarterly
(March, 1914], p. 38.
"The United State* possessea at the pres-
ent time no adequate system, either state
or national, for the regulation of private
employment agencies, either from the point
of view of the content of the Iswa, aHordlng
regulations of the business and restrictions
as to how the bnsiness shall be carried on,
or aa to proper methods of enforcement."
(Lat>or Laws and Their Enforcement, edit-
ed by Susan M. Kingsbury [Boston, 1911] p.
366. See chapter 6 of this work for &
study of the regulation of private employ-
ment agencies by Mabelle Moses. See also
chapter 663, Laws of 1013, state of Wis-
1 Proceedinga of the Association of Pnh>
L',aii..,-)-,.*^-.OOglC
UlS.
AJ3A3S8 T. TASSS&.
«»
P«tltl«i were m«d« bj volunUi; orgkniu-
tiom, philanthropic, locial, and industrial.)
The reaulti of those experiment* were un-
utisfactot;. llie abiues continued in large
meaavire; and the private offices surrired
to a great extent the competition of the
free agencies, public and private. There
gradually developed a conviction that the
evils of private agencies were inherent and
ineradicable, so long as they were permitted
to charge fees to the workers seeking em-
pIoj^meDt. And man; believed tliat sach
charges were the root of the evil.
On September 26, 19U, the American
Association of Public Employment Offices
adopted at its annual meeting the follow-
lug resolutions:
"Besolved, That this association go on
record as favoring the elimination as soon
■s pofigible, of all private employment
agencies operating for a profit witbln the
United States, and that it recommends to
the consideration of the United States Com-
mission on Industrial Relations and Con-
gress and the various state legislatuie* 1^-
ielation having this end in view."
The United States Commission an In-
dustrial Relatitma declared In ite report
"24. Attempts to remove these abuses by
regulation have been made in thirty-one
•tatee, but with few exceptions they have
proved futile, and at most they have served
«uly to promote a higher standard of hon-
Sesty in the bnsineoa and have not removed
• the other abuses which are inherent'in the
^■tem. Where the states and cities have
spent much money for inspectors and com-
plaint adjuster* there has hem considerable
improvement In the methods of private em-
ployment agencies, but most of the officers
Id charge of this regulation testify that
the abuses are in 'the nature of the business'
and never can be entirely eliminated. They
therefore favor the total abolition of pri-
vate labor ageuciee. llile li also the com-
mon opiniut among working people, and
in the several states attempts have already
been made to accomplish this by law."
But the rsnedies proposed were not lim-
ited to the suppression of private offices
diarging fees to workers, and the extension
of the system of state and muiticipal offioes.
The conviction became widespread that, for
the solution of the larger problem of lUiem-
ployvent, the aid of the Federal govern-
ment and the utilization and development
of its extensive machinery was indispensa-
ble. During the seven years preceding 1914
a beginning hod been made in this respect.
The Immigration Act of February ZO, 1907
(chap. 1134, 34 Stat at I.. 698, 909, Comp.
Stat. leiB, §3 4242, SQO), created within
the Bureau of Immigration and Naturaliza-
tion a Division of Information, charged
with the duty of promoting "a beneficial
distribution of aliens." The services ren-
dered by this division included, among
othere, some commonly perforiaed by on-
ployment agencies. While it undertook to
place In positions of employment only alieni,
its operations were national in scope. The
Act of March 4, 1913, creating the Depart-
ment of labor, resulted in a transfer of
the Bureau of Immigration, including th*
Division of Information, to that deport*
ment. 8T Stat, at L. 730, chap. 141, Comp.
SUt. 19ie, g S32. By this transfer the
scope of the division's work waa enlarged
to correspond with the broad powers of the
Labor Department. These ware declared
by Congress to be;
"to foster, promota and develop the welfsM
of the wage earners of the United States,!
to Improve their •working conditions, ands
to advance their opportunities for profitablo
employment."
Then iU efforts "to dietrlbuU" (that U
both to supply and to find places for) labor
were extended to Include citizens as wsll aa
aliens; and much was done to develop the
machinery necessary for such distribution.
In the summer of 1914, and in part before
the filing in the state of Washington of the
proposal for legislation here in question,
action had been taken by the Department
of Labor which attracted public attention.
It undertook to supply harvest hands needed
in the Middle West and also to find work for
the factory hands thrown out of employ-
ment by the great fire at Salem, MaBsa>
chusetts, Juns 26, 1914. 1* The division waa
strengthened by co-operation with other de-
partments of the Federal government (Agri-
culture, Interior, Commerce, and the Poet-
office, with its 60,000 local offices] and with
state and municipal employment offices. Ae
early aa June 13, 1914, the United SUtea
Department of Labor had also sought the
co-operation io this work of all the leading
lie Employment Offices (September 2fi,
1914}, U. S. Dep. of Labor, Bureau of Labor
Statistics, Bulletin 198, p. Bl.
• Unemployment and Work of Employ-
ment Offices, Bulletin of U. S. Bureau of
Labor No. 109, pp. 6, 37 (October, 1612).
• Mads in August, 1916, and cited supra,
Note i. Between 1014 and this date rix
states hod legislated on the subject. See
Unemployment Survey, 1014, 191S. 6
American Labor Legislation Review, p. 600.
IB The flre was so ej^tcnsive that the Con-
gress appropriated (200,000 for relief o(
all sufferers (Act of August 1, U14, chap>
223, 88 Stat, at L. «81).
A^iOOglC
87 SUPEEMB COURT REPORTER.
0<n^ Tesm,
BewBpapera. In America, incladlng UiOM
-printed in foreign languages. n
• 3. Conditiona in the ctate of Waaliington.
The pecuJiar seeds of Washingtoii «m-
pha«ized tlie detecte of tlie lyBtem of private
ainplojnient oficei.
( a.) The evila.
The conditions generally prevailing are
described in a report recently published bj
the United States Deportment of L^wr,
thua:U
"In no part of the United State* perhapi
la there ao large a field for employment
offices SB in the Pacific states. Aa haa been
noted, indnatri&l conditions there favor in-
constancy of employment. Much of the
bnainesB activity is baaed upon the casual,
ahort-time job. ILis in itself means the
frequent ahifting of workers from place to
place. And the shifting is the more difficult,
*a much of the work offered is in more or
bag remote districts of the country. . . .
Hie necessity laid upon so many workera
of constantly seeking new jobs opens a pe-
culiarly fertile field for their exploitation
by unscrupulous private employment agu-
ciea. Iliere is much testimony to the fact
and frequency of such exploitation. The
most striking evidence of this is that Id
the state of Washington private agenclea
made themselves so generally distrusted
that in 1916 their complete abolition was
ordered by popular vote. . . ,
Prior to 1914 there waa praetteaUy no
legislation regarding private employment
g agencies, and there had been no attempt at
g atate superviaion ot their conduct. But
• dbtrust of such agencies was conatantly in-
creasing and culminated in the year men-
tioned in the passage by popular initiative
of an act aiming at the total auppression of
all private employment agencies of the com-
mercial type."
11 Annual Report ot the Secretary of La-
bor, 1B14, pp. 48-5fi; Monthly Review of
the U. S. Bureau of Labor Statistica, July,
191 S, p. a i see also Annual Report of the
Secretary of Labor, 1BI6, p, 36; "Inter-
departmental CO -operation. — Through the
co-operation of the Poetoffice Department it
bei'Bnie possible to bring to the aid of this
labor-distribution aervice some 00,000 post-
offices and thereby to create a network of
communication between employers need ins
help without knowing where to get it and
workers wanting employment without
knowing where to find It. Either employer
or workman may obtain at any postoffice in
the United States a blank application sup-
nlied hy this department, which, after fill-
ing out and signing it, be may deposit in
the mails anywhere, free of postage. "Em-
ployment bulletins. — The bulletins contain
a statement of unmatched applications, no
The reports of the Washington Stat*
Bureau of Labor give Uiia dascriptioBi
"The investigations of the Bureau abow
that the worst labor conditions in the state
are to be found (» highway and railroad
construction work, and tbeae are largely
hecauae the men are sent long distances 1^
the employmoit agencies, are housed and
fed poorly at the campa, and are paid on
an average of $1.75 to $2.25 a day, out of
which they are compelled to pay $S.60 to
$7 per week for board, generally a hospital
fee of soma kind, always a fee to the em-
ployment agency and their transportation
to the point where the work is being done.
The consequence is that they usually have
but nttle money left when the work ia
finished, and if, as frequently happens, they
work only a week or two and are then dis-
charged, they are in as had a situation aa
they were before they went to work, and
sometimes worse, if they do not have enough
money to get back to the place from which
they started." i»
"That the honest toiler waa their victim
there is no question: not alone of a stiff
fee for the information given, but a system-
atic method was adopted in order to keep
the business going. Managers of agencies
and managera of joba, their superintend-
ents, foremen, or subforemeu, were in this
schema for fleecing the workingman. Hen
in large numbeta would be sent to contract
jobs, and if on the railroada 'free fare' waa
part of the inducement, or perhapa the
agency would charge • nominal fee if tiw^
distance was great, and this, too, wouldg
become a perquisite of the*lmreau, to finally*
go through tiie clearing house. In many
cases men would be unsatisfactory; at leairt
they would be told ao, discharged in a
few days and sent adrift aa poor, may be
poorer, than when they cam* there. New
men would have to be secured, and thus tba
matter what part of the country they may
come from. It is not expected, of courae,
that applications for work of a minor char-
acter will ordinarily be matched by appli*
cations for workers of that kind from dis-
tant stationa. It is assumed, however, that
bulletined applieatlona may posaibiy be
matched through the co-operation of near-by
stations within a raaaonable radlna. The
bulletins are also systematically aott to
such newspaper* as have Indicated their de-
sire to receive them for possible publication
as news matter ot interest to their respee-
tive readers."
" Labor Laws and thrir AdminlatTatiim
In the Pacific States. United States Depart-
ment of Labor, Bureau of Labor Bulletin
Na 211 (1917), pp. 17, 18.
» Washington State Burean ot Labor.
Report 1913, IS14. pp. S7, SO.
D,at,z.,i-.,'^-.00'^IC
MU.
ADAUBv. TAHMSK.
en
thing would go on rerolTliig. Bo It wtut
until kt latt it became «> obnozioiu that the
public IndignAtton was at length ArouMd,
resulting iu the psasicg ot a law doing
■way with them." M
The abusea and the Inedeqnaej of the
then exiiting eyatem are also deecrlbed ij
state officials lii affldavita Included in the
(b) The remedies.
Washington had not tried direct regula-
tion of private employiuent offices, but that
method was being considered af late aa
1912.U Its people had had, on the other
hand, ^ceptional opportunities of testing
public employment offices. Tb» municipal
Wiployment ofBce established at Seattle in
]8Q4 undot an amendment of the dty charter
is among the oldest publio offices In the
United States. Tahoma established a mu-
nicipal office In 1B04, Spokane in 1906, and
Ererett in 1908.1* The continuance and
iBorease of these municipal offices indicate
that their experience in publie employment
agencies was at least encouraging. And the
low coat of operating them was eztraordl-
14 Washington State Bureau of Labor.
Report 1916, 1010, p. 120.
U Washington State Bureau of Labor,
1911-1912. Iteport of Commissioner, p. 18;
"It has been oemonBtrated that state con-
trol of employment agencies fs the moat
effective way to properly regulate them. I
would earnestly recommend a state law-
similar to the one in Illinois that went Into
■fleet July 1, I9I1, and haa proven to tM
the best law for this purpose in this coun-
try."
ilTbe llrat free public employment office
in the United States was the municipal
agency egtablighed In Cleveland in 1890.
Then followed (in 1803) the Los Angeles
office. Bulletin of United States Bureau of
lAbor No. 68, p. 1 (Jan. 1G07}.
IT Washington State Bureau of Labor
Report 1913. 1B14, p. S91.
W. D. Wheaton, Labor Agent. — The com-
plaint against the private office is almost
nniversar 'Hie experience of this office is
that private ageicies charge all that the
tralBe will bear and that in hard times,
when work is scarce and the worker pov-
erty-stricken, the fee is placed so high as
to Iw almost prohibitive, and the agencie*
take longer chances, sometimes sending men
on only a rumor, depending on their finan-
cial straits to make it impossible to return.
"The fees charged run from 11 for the
poorest Job of uncertain duration to as high
as 10 per cent of the first year's salary in
educational lines, and 30 per cent of the
first month's salary In office or mercantile
llnea. Most of the agencies catering to tbe
better class of positions charge a registra-
tion fee which is worked to the limit — or
rather without limit. Advertisements for
fttta«cU*e podtiona «n plaeed with th«
nary. In Spokane the fee* eharged by prt- ^
vate agoiciea ranged from (1 upward, andg
were umiaJiy about •tS.n In the Seattle*
frae municipal agency the coat of operation,
per position filed, was reduced to a trifle
over 4 eenta.u The preliminai; steps for
establishing "datrlbutlon Stations" under
the Federal system, including one at Seattle,
had been taken before the passage of the
Washington Uw4* Later branch offices
were eatabliahed in thirteen other citiea.M^
•4. Tlie fundamental problem- •
^e problem which confronted the people
of WashingttHi waa far more comprehen-
sive and fundamental than that of protect-
ing workera applying to the private agen-
eiea. It was Uie chronic problem of unem-
ployment,— perhaps the gravest and most
difficult problem of modern Industry, — the
problem which, owing to business depres-
sion, WRs the most acute in America during
the years 1913 to 1916.n In tbe state ot
Washington the suffering from unemploy-
ment was accentuated by the lack of staple
Industries operating continuously through-
newspapers and registration is made of all
that apply, irrespective of whether tbe posi-
tion hM been filled or not, and generally
at a fee ot |2 or more. His registration fee
is always followed by a percentage of the
eamiqgs when a position is secured, but
only a small proportion of those r^stering
are placed in position*.
"The average charge per position In all
agencies will ran high, and y^ the applicant
cannot have a feeling of security in the pou-
tlon obtained for the reason that the great
majority of private agencies are primarily
interested in the fee, and are not as careful
in placing applicants as they would be did
the possibility of another fee not exist."
»United SUtes Bureau of Labor Bulle-
tin No. 100, p. ise.
"The extremely low coat of each position
filled is noteworthy, as is tlie large number
of poeitlons secured. A total of 3T.B34
positions were filled In 1906. and in J909,
88,840. Ihe cost per position was lowest
in 190S, only 4.03 cents. Only twice since
IBBT has the average cost gone above 0
1* See Report of Secretary of Labor, 1B14,
p. Gl.
■t "Aberdeen. Bellinghsm, Custer, Everett,
Friday Harbor, Lynden, Noosack. North
Yakima, Port Angeles, Port Townsend,
Spokane, Takoma, Walla Walla. Monthly
Review of U. S. Labor SUtistics, July,
1916, p. 9. See Report of Secretsiy ot Ui-
bor, 1910, p. 36; 1910, p. 04. Hearings Com-
mittee on LAbor, on H. R. 6783, to establish
a National Employment Bureau. 04th
Cong, lat Session, Fabmary, 1910, p. 49.
■1 The Unemployment Crisis of 1914, 1918,
6 Amerioaa Labor LMlalation Review, p,
476.
A^iOOglC
«n
ST SUPBXUB OOUKT HEPOBTEB.
Oct, Tmit,
ont thft ywi and b^ nnuHual flnetuations
in the demand (or labor, wiUi consequent
reduction of wages and increase of social
unreet.>3 Students of tlie larger problem
«of unempluyment appear to agree that estab-
^liabment of an adequate tystam of emploj-
* ment ofGcea or tabor exchanges ■■ la an ^-
diapeniabte first step toward ita solution.
There la raason to bellere tliat the petqila
of Washington not only considered the col-
lection b; the private emploTinent offices of
fee* from emploTces a social injustice,**^
but that they considered the elimination ofg
tha practice a necesaary preliminary to the*
eetablishment of a constructive policy for
dealing with the subject of unemployment.**
M Washington State Bureau of Labor
Report, 1013, 1034, pp. 13, 36, ]7. Unera-
CilOTment Surrcr. 6 American Labor L«^iB-
ation Beview, 482, 4S3 (1916).
n Recent Advances in the Struggle
against Unemployment, by Prof. Charles R.
Hendersan, 2 American I^bor Legislation
Heview, 105, 106 (1011). 'The point of
starting ameliorative effort is the employ-
ment agency or 'labor exchange.' "
"When we compare tlie ordinary employ-
ment office with the board of trade for cot-
ton or grain, or with the bankers' clear-
ing house, we begin to realize bow belated,
rudimentary, and primitive o«r present la-
bor exchange it. Xet the lisuei at stake are
quite BB vital In the case of demand and
supply in the labor market as in the sttfck
and grain exchange."
A Problem of Industry, 4 American Labor
Legislation Review, p. 211 :
"The labor market Is unorganiced, re-
sulting in confusion, waste, and loss to em-
ployers and employeaa. It means suffering
to individual workers and their families, a
lowering of the standard of living, impaired
vitality and efflcleney, and a tendency for
the unemployed to become unemployable,
dependent, degraded. In fact, tha demoral-
liins effect of unemployment upon the in-
dividual is matched only hj Its wasteful-
ness to society."
The Prevention of UnemplOTraent, B Am-
erican Labor Legislation Review, p. 176:
"An essential step toward a solntion of
the proiilem of unemployment is the organ-
isation of the labor market through a con-
nected network of public employment ex-
changes. This is vitally important as a
matter of busineaa organisation, and not of
philanthrophy. It is of as much impor-
tance for the employer to find help rt^idly
and efficiently aa it is for the worker to
find work without delay. The neeeBsIty of
organised markets is recognized in every
other field of economic activity, but we have
thus far taken only timid and halUng steps
In the organization of the labor market.
The peddlinir method is still, even in our
'efficient' industrial system, the prevalent
method of selling labor, llius a purely
business transaction is carried on In a most
businesslike, not to say medieval, manner."
Public Employment Bureaus, Charles B.
Barnes, 6 American lAbor Legislatitw Re-
view, p. 106:
"Unemployment Is no longar ljit«nnlt-
tent in tnis country; it has come to be a
chronic condition which needs to be dealt
with in a regular and systematic manner.
The first st^ in properly dealing with
this situation ia tha astablishing of a a»
ries of co-operating public employment
bureaus."
The unemployed in Philadelphia, Depart-
ment of Public Works (1916) p. 113.
What is done for the Unemployed in Eu-
ropean Countries, U. S. Bureau of Labor
Bulletin, No. 76, pp. 741-934; The British
System of Labor Exchanges, TT. S. Burcan
of Labor Btati sties. No. 206.
M Washington State Employment Agencj
Referendum, by W. M. Leiserson, 33 Survey,
S7 [October 24, 19J4};
"Anyone wlio knows the employment
agency business and everyone who has tried
earnestly to regulate private agencies wiU
testify to the futility of regulation.
"But the inherent justice of the proposed
Washington act aan be ahown in a better
way. Ask tha employment agent to whom
he rendered the service, and he will answer
'to employer and to employee,'
" 'Then why don't you charge the am-
ployerl'
'It is Impossible. If we depended upon
employers for our tees, we would have to
go out of business. They simply will not
pav.'
Every time this question is put to em-
ployment agents the answer is the same;
'Ws chares the worker because we can get
the fee from him siid we cannot get ii
from the employer.'
"This is the downright wrong a^nst
which Washington Initiative No. B is di-
rected."
<t General TMscusslon on Unemployment,
6 American Labor Legislation Review, p.
461; T. a. McMahon, Univ. of Waahington.
"The people of the state of Waahii^^n
are not indifferent to the problem of un-
employment, nor do they show any tendency
to offer charitable panaceaa as a pennanenb
remedy. They are trying to work out soma
constructive policy, and as a preliminary
step have made It ill^al for employment
offices to charge fees for jobs.
"A bill will be presented to the next legis-
lature for the establishment of a network
of public employment offices all over tha
state. This will make possible the com-
plete organization of tha labor market,
which we hope is the first step toward tha
oi^nitation of industry itself.
"The aggressive attitude of the leaders
among the workers has impressed upon
the mind of the people the fact that the
problem will have to be met in another way
than by providing food and clothing for a
period 01 diatreas such aa we are paaaing
through at the present time.
"I believe that this attitude on the part
•t tha working peopls^ which ia aharaet^
,A_.OOglC
aBESNB V. UOUISVILLB & INTBRUBBA2I B. OO. VT*
<M U. B. «■)
KOBGST Ii. ORGGNE, Auditor, Bharmaa
Goodpftster, Treasurer, knd Junes P.
Lewi*, Secretarr of State, ConBtitutlns
Um Board of Valuatloo and AawBament
for the Stat* of Kentudcj, et al., Appta,
UlS.
It la facta and eonaideratlons like these
which may have led the people of Waahiog-
ton to prohibit the collection b; employ-
ment agencies of fees from applicant* for
work. And weight should be given to the
fact that the statute has been held conetitU'
tional bj the tupremo coiut of Washington
and by the Federal distiict court (three
Judgae sitting) , — court^ preaumabiy fa-
miliar with the local eonditions and needs.
S In BO far at protection of the applicant
• la a apeciflc •purpose of the statute, a pre-
cedent was furnished by the Act of Congreei,
Deconber 21, 1B08, 30 Stat, at h. 765, 7(13,
chap. 28, Comp. Stat. 1016, g§ 8306, B323
(considered in Patterson v. The Eudora, 190
U. S. 1Q9, 47 L. ed. 1002, 23 Sup. Ct. Rep.
621), vhich proTtdee, among other things:
"If any person ehall demand or receive,
tither directly or indirectly, from any tea-
man oi other person seeking employment aa
seaman, or from any person on hii behalf,
any remuneration whatever for providing
him nith employment, he shall tor every
anch offense be liabla to a penalty of not
more than tlOO."
In M far as the statute may be regarded
as a step in the effort to overcome industrial
maladjustmeot and unemployment l>y shift-
ing to the employer the payment of fees, if
any, the action taken may be likened to that
embodied in the Waahington Workmen's
Compeneation Law (sustained In Mountain
Timber Co. t. Washington, 243 U. B. 210,
61 L. ed. tS8C, 87 Sup. Ct. B^. 280), «hac«lv
the flnaneial burden of industrial accidmta
fa required to be borne by the employers.
As was said In Holden v. Hardy, 169 U. 8.
906, 387, 42 L. ed. 7S0, 789, 18 Sup. Ct Bep.
S83.
"In view of the fact that from the day
Magna Charta was signed to the present
moment, amendments to the atructure of
the law have been made wiUi IncresEing fre-
quency, it is impossible to suppose that they
will not (Tontinue, and the law be forced to
adapt itself to new eonditions of society, and
particularly to the new relations between
employers and employees aa they arise."
In my opinion, the judgment of the Dia-
trict Court should be affirmed.
Justice
Istically western, will do more towards tbe
solution of this problem than perhaps we,
wlio discuss it In a theoretical way, can
accomplish. They do have some plan oE
action, and some deHnlt* program. Either
we shall have to work out some program
of ultimate solution of unemployment, or
we will have to accept the solution they
are offering us. The one they are offering
ROBERT L. GREENE, Auditor, Sherman
Goodpaster, Treasurer, and James P.
Lewis, Secretary of State, ConBtituting
the Board of Valuation and Assessment
for the State of Kentucky, et al., Appt*.,
Taxation «9e08<6) — ImaitcnioH— Be-
srrsAi.viMO £>NFOiicuiENT OF lujaali
Taxeb—J ubisdictiok.
1. A court of equity has jurisdiction of
suits to enjoin action looking to the en-
forcement of taxes upon the mtangiUe prop-
erty of public service corporations assessed
under state authority, upon the ground of
discrimination in valuation arising out of
systematic undervaluation of other taiabla
property, where the bills assert that the
unauthoriied illegal valuation constitutes
a, cloud and a lien upon the plaintiff's prop-
er^, and that, unless restrained, numeroua
and vexatious suits will be instituted to
foreclose such lien, together with civil, pen-
al, or criminal proceedinga based upon
plaintiff'a supposed delinquency in the pay-
ment of taxes.
[Ed. Note.— For otber eau^ ■•• TaxaUon,
Cent. Dls. I IZ34.1
States *=>181(2)— Immtjnitt fiok Stni^
SuiT AGAINST Statk Omaxaia Ewjom-
iHO IU.EOAL Taxxs.
2. State officers charged with the duty
of enforcing the tax laws of the state may
be enjoined by a Federal court of equity
from taking steps looking to the enforce-
ment of state and local taxes upon the in>
tangible property of a public service cor-
poration, assessed under state author i^,
which are aaserted to violate the Federal
Constitution because of a discrimination in
the valuation of the property upon which
the taxes are based, arising out of svstemat*
ie undervaluation of other taxable prop-
erty, although the state laws under the
sanction of which the officers assumed to act
in making the assessment do not contem-
plate any unlawful discrimination.
[Ed. Not*.— For othsr caMS. a— StatM, Cent.
Dlk. I Ul.]
CouBTs *=>282(3)— Fkmbai. Coubtb— Jd-
■lanicTTON— Fedbkai, Qoxstion.
3. A Federal district court has juris-
diction, irrespective of the eitiienahip of
the parties, of the controversy presented by
bills which seek to enjoin state olScers from
taking steps looking to the enforcement of
state and local taxes upon the intan^ibls
property of a public service corporation,
assessed under state authority, upon the
ground that the action of those officers in
making the asEcssmentn, and their threat-
ened action in respeot of carrying tham Imr
M topic * KBT-NUHBBB In all Ker-Nxmbn«d DtneU * ladoa
■.gic
974
ST SUPBEUB COUBI KEPOKIKB.
to effect, eonftitute utlon by tlM rtate
Vbie)), it carried out, will Tiolat* U. S.
Const. 14th Amind., &■ dsufing tiia eqnal
protection of the lana.
IBd. Not*.— Ver othar auaa, ••• Conrta, 0«at.
Dis. ii tu. ns.]
OOUKTB 4=9268— fi^DBBAI, COITBTS— JUKIS-
DicnoN— Qosenons hot au. Fxdekai.—
Appeal — EbTcifDina Bxtizw Bexdhd
Fbdebui Qcebttor,
4. Tie juriedictlon of a Federal dittriot
eourt in a luit presenting a Federal ques-
tion, and that of the Federal Supreme Court
on appeal, extendi to the determination of
all queatlone Involved in the caae, includ-
ing questioni of state law, irrespective of
the aiapoaition that ma; be maae of the
Federal question, or whether It be found
neeessary to decide it at all.
[Ed. Nats.— Tar othsr easM, ■•• Courts, Cent.
DiB. H in, mo.]
Taxaxios ^34fi— UmnroKinTX— Cobpokats
AND Ihdividuu, Pbopbetx.
G. A departure from the requirement of
Ky. Const, %% ITl, 174, of uniform taxation
In proportion to Talue, and of an iden-
tical rate as between corporate and individ-
ual property, is not permitted as to rail-
way companies by the provision of S 1S2,
that the general assembly shall nrovide by
law "how railroads and railroad property
shall be assessed and hiiiv taxes thereon
shall be collected," but the latter provision
relates merely to the mode of assessment
•ud collection.
[BM. Not*.— for other usee. >m Tszatlon,
Cant. Dig. tl IW-Un.]
Tjlxatjob ^3606(6} — BssmAimsa II-
icsAi. Taxation — Ukeqiul Absessuent.
6. Discriminatory taxation contraven-
ing the express requirements of a stats
Constitution Is not l>eyond redress by in-
junction in the Federal courts, their juris-
diction being properly invoked, when the
discrimination results from divergent ac-
tion by different assessing boards whose as-
sessments are not subject to any process
of equalization established by tht state,
and where the diverse results are the out-
eome of the intentional, systematic, persis-
tent nndervaluation by one body ol oltlcials,
presumably knonn to and ignored by the
other body, so that the two bodies act in
effect in concert.
[Bd. Note.— For other eisM, see Taxation,
Cent. DIs- I UU.1
Taxation ^=3606(6) — EEBTRArNina II-
UOAL TAXATIOn—UnqTIAL ASSKSSItlltT.
T. The requirement of Ky. Const. S 172,
that all property "shall he assessed for
taxation at its fair cash value, estimated
at the price It would bring at a fair volun-
tary sale," will not prevent injunctive re-
lief against steps looking to the enforce-
ment of certain state and local so-called
franchise taxes, based upon an assessment
of the intangible property of a public serv-
ice corporation by the State Board of Valua-
tion and Assessment at not more than Ita
fair cash value, where the local assessing
officers charged with valuing other classes
of property systematical ly undervalue sndi
pKperty, sinco to apply to ou class at
property the standard of fair caah valu^
, MS TaxatloD,
Taxation «=>fl06(!9 — RasTBAinnTO Ii^
IXQAI, Taxation — Bkuedt at Law,
8. A public servlee eorporaBon nay so*
In equity to restrain state officers from tak-
ing steps looking to the enforconent of cer-
bun state and local so-called franchise taxes
on the ground of discrimination in TaluA-
tion of the intangible property upon which
such taxes arc tused, notwithstanding the
remedy afforded by Ky. SUt, g 162, di-
recting the state auditor to refund taxes
unlawfully collected, such remedy being in-
adequate to prevent equitable relief for
two reasons: (a) by the decisions of the
Kentucky court* this section is confined to
cases where the taxes paid were wholly
without warrant In law, or based upon a
mistake as to the rate of taxation upon the
amount assessed; (b) the bills deal with
both state and local taxes, while this sec-
tion applies to state taxes alone.
[Bd. NoU.— far ctbar ess—, ■•• Taxatton,
Cent. DIs. I Uai.]
Taxation ^3e06(S) — BEBTBAinina Ii.-
LEOAL Taxation— BxinoT at Law.
9. F^uitahle relief to public service
corporations against the certification and
enforcement 1^ state officers of state and
local so-called franchise taxes upon the
ground of a discrimination in the valuation
of the intangible property of the corpora-
tions upon which Uie taxes are based, aris-
ing out of systematic undervaluation of
other taxable property, may not be denied
upon the theory that, under Ky, Stat, gg
4115-4120, 4123, • method ia provided by
which, instead of lowering the assessment*
upon their property, they could, by proper
procedure, compel the assessment of ths
property of other taxpayers to be increased,
so as to come withm the requirement of
Ky. Const. $ 172 as to fair cash value,
where there is nothing In these provisions
to Indkata tliat parties situated a> are
these corporations, who have no different
Interests in the nndervaluation by the local
assessors from that which might be pos-
sessed by any other citizens, are entitled
to be heard to complain that such asseas-
ments are too low, nor Is any case cited
where such a complaint has been enter-
tained, the remedy of reassessment being a
public, not a private, remedy.
[Ed. Nats.— Vor othar cans, bm Tazatloa,
Cwit. DlK. i UU.I
[Nos. 617 aaA SIS.]
Argued January IS, 17. and IB, 1917. De-
cided June 11, 1917.
>■ leple * KBT-NtniBER In all Ker-NnniMrM Dtnata * Indeiei
A^iOOglC
GBEENI w. LOtntSVILLB * INTERUBBAN R. 00.
rs
Two APPEALS from the District Court
of the United States lor tlia Eastern
District of Kentucky to rerlew decrees en-
joining state officers from taking action
looking to the enforcement of certain state
and local so-called franchise taxes assessed
against public serrice corporations under
state authority npon the groiuid of a dis-
crimination ID valuation of the intangible
property upon which the taxes are based,
arising out of syetematio andervaluation
•f other taxable property. Affirmed,
The facts are stated in the opinion.
Mr. Marrel H. Iiosan, Attorney Oeneral
of Kentucky, and Messrs. Charles Carroll
and John L. KIch, for appellants,
Messrs. Alexander Pope Humphrey
Sand Edward P. Hnmphrey for ^pelleea.
• *Hr. Justice FItner delivsred the opin-
ion of the court:
^ These are companion cases, involving slm-
ollar questions, were argued together, and
•r nay be disposed of In a single 'opinion.
Appellees are corporations organised nnder
the laws of the state of Kentucky, one of
which (the Louisville k Intemrban Rail-
road Company) operates, as a common car-
rier, passenger and freight lines of railroad
In three of the counties of that stats and
tn various municipalities and taxing dis-
tricts in those counties; while ths other
(the Louisrille Railway Company) iterates,
as a commtm carrier, passenger and freight
lines of street railway in the city of Louis-
Tille and In Jefferson county, outside of
that dty. They Hied their several bills
of complaint In the district court against
Henry U. Bosworth and othsrs, then eon-
stitntiDg the Board of Valuation and
Assessment of the State of Kentucky ( Bos-
worth being also auditor of public ac-
counts), and against the attorney general
of ths state and his assistants, suing them
all, both Individually and in their official
«i^>aaitiea, for an injunction to restrain
steps looking to tlte certification and en-
forcement of what are called "franchise
taxes" attempted to be assessed upon the
respective complainants for the yssr 1916
under | 407T and succeeding sections of
the Kentudcy Statutes, upon tbe ground of
discriminatioQ in the valuatiiw of the fran-
chisee; they having been assessed, as alleged,
on the basis of TG per cent of actual values,
while taxable property in general was aa-
ssBsed systematically and intentionally at
not more than 62 per cent of actual values.
Tikere being no diversity of citizenship, the
jurisdiction of the district court was in-
voked, under the first paragraph of J 24,
Judicial Code [36 SUt at L. 1001, chap.
til, Comp. But. 1918, | 001 <1)], npon
tiie grooiid that the suits aroae under the
*dne process" and "equal proteettos" dansea
of the 14th Amendment of the Constltntlos
of the United States, and that the matter
in dispute in each case was in sicess of
the jurisdictional amount. Plaintiffs also
relied upon certain provisions of the Constl-
tntlon of the state that require uniform tax-
ation of prop^ty according to value and
at ths same rate for corporate as for in-^
dividual property, By supplemental billsg
'the successors In offico of the original de-*
fendsnts were mads parties, in both their
individual and official capacities. In each
case there was a motion to dismiss, equiva-
lent to a general demurrer to Uie bill, upon
the following grounds: (1) that there waa
no Federal question involved, and therefore
the court waa vrlthout jurisdiction; (2)
that ths bills stated no cause of action un-
der the laws of the state or of the United
States; (3) that the plaintiffs had an ade>
quate remedy at law; (4) that the btlls
showed no equity on their facaj and (B)
that tile suits were suits against the state
of Kentucky. After a hearing, the court
overruled these motion*, defendants de-
clined to plead further and mads no ob-
jection to the submission of the oasea fot
final decrees, ths allegations of ths Ulls,
not being donled, were taken as true, and
final decrees were made granting relief
against ths entoroement of the disputed aa-
sessmeuts, and restraining the imposition
of franchise taxes up<Mi plaintiffs for tha
year 1016, based on assessments to thdr
franchises at greater values than those con-
ceded in the respective bills of complaint,
which were 60 per cent of actual values.
The court. In reaching this conclusion, fol-
lowed its own previous decisions tn Louis-
ville ft N. R. Co. V. Bosworth, 800 Fed.
380, 830 Fed. 101. DefendanU appealed
directly to this court, under | 838, Judicial
Code [30 Stat at L. IIST, chap. 231, Comp.
Stat. lOie, I 1815],
His cases were submitted here at tba
same tlms with cognate cases this day de-
cided, Yix.: Nos. 778 and 779, Louisville
ft N. B. Co. V. Greene [244 U. S. S22, 61 U
ed. — , ST Sop. CL Bw. 688] and Nob. 64^
640, lUInoia C. B, Co. v. Oreene ^44 U. &
066, 81 L. ed. — ^,87 Bnp. Ct Rep. 6OT1.
L) tlie present eases, thm assignmsnts of
error and the argument for appellants are
based upon ths refusal to dismiss tlie billa
of complaint, no criticism being made as
to the particular relief granted by the final
The bills are substantially Identical In
form, and an outline of the one filed by ths
Iiouisvllle ft Intarurban Railroad Company
(No. 617) will snfflcs. Following a pref-
atory statement of jurisdictional
and a^eaariptloB of tbe parties. It rvatt tsj
I
,A_.OOglC
670
37 snPBXMB COTTBT SEPORTEB.
Oot. Tmi,
■ubatftnea tbat tlie State Board of Vain-
»tioD and AiBessment, having aacertaised by
a process not here criticized what, in their
judgment, was the fair cash Talua of plain-
tiff's "capital stock," took 76 per cent of
the result, and thus fixed the valuation of
the capital stock tor Uie purpoaea of the
aasessment for the year 1915 at tZ,Z50,000;
deducted therefrom the amount of plaiDtLff**
tangible property aaseBsed for Bt«te taxes, —
$813,619, — thus fixing the value of tbe
"franchise" at $1,430,381; and BKertalned
tba state taxes thereon as follows-, state
tax, generally, at 50 cents, {7,161.90; state
road tax, at B cents. $718.19; a total of
97,900.(19. That plaintiff protested, but to
no avail. That the sssesament subjects
plaintiff to state taices upon the whole of
Its capital stock, and to county taxes in
the three counties on proportionate parts
of it, Rnd to additional taxes in the cities
•ad other municipal itiH and taxing dis-
tricts through which its railroad ruus.
Plaintiff avers that for many years past,
including the taxing year 191*-1916. the
taxes for which are here in controversy, tbe
local assessors and other assessing ofHcers
of the state of Kentucky have habitually.
Intentionally, systematically, and generally
aasessed the property of individuals and of
corporations witbln their sphere of duty,
comprising 60 per cent of the total taxable
property, at not exceeding 62 per cent of
its fair cash value, estimated at the price
which it would bring at a f^r and volun-
tary sale; that tiie fact of such systematic
assessment upon that basis annually for
many years past has been a matter of public
notoriety in the state; "wh^eas the said
Bosworth, Rhea, and Crecilius, acting as the
State Board of Valuation and Assessment,
•iter ascertaining what, in their judgment,
was the fair cash value of plaintiff's capital
stock, reduced said value only to the extent
of taking 76 per cent thereof, instead of
^taking 52 per cent, the average rate applied
g by assessing olScers to the vast body of
• property In this state." It is*averred that
Bosworth, Rhea, and Crecilius have denied
to plaintiff the benefit of equalization, and
that thereby plaintiff has been deprived of
its property without due process of law
and denied the equal protection of the laws,
in violation of the 14th Amendment and
tbe Constitution and laws of the state;
that plaintiff has paid the state and county
taxes upon its tangible property for the year
In controversy so far as they have been
demanded, and also has paid the state taxes
upon its franchise as arrived at by taking
the value of its capital stock and taking
60 per cent of such valuation and deducting
therefrom the valuation of pl^ntiff's tan-
gible property; that Bosworth, Rheft, and
Crseillns, unless enjoined, iriU certi^r to
the county clerks of the three oountiea men-
tioned tbe amounts claimed to be due to
said counties and the taxing districts there-
of by reason of the valuation they havs
aasuioed to make as above stated; the
county elerks will thereupon certify said
asseaamenta respectively to (he tax col-
lectors for the said counties and tlie tax-
ing districts therein for collection ; and said
collecting officers will proceed to make
collections and to institute unwarranted,
vexations, and multitudinous miiU and pro-
ceedings at law against plaintiff; that unless
enjoined the said Bosworth or his deputy
will enter in account with the treasurer of
the state the amount of taxes based upon the
valuation aforesaid, and the said attorney
general and his assistants will institute civ-
il or penal actions or procure indictments
against plaintiff, based upon its supposed
delinquency in the payment of t&xes; and
that the unauthorized and illegal valuation
constitutes a cloud and, as claimed by de-
fendants, constitutes a lien upon plaintiff"*
property in tbe commonwealth, and unless
defendants are enjoined numerous and vex-
atious suits will be instituted to enforce or
foreclose such lieu. There is an appropriat«
prayer for injunction and for general reliet^e
It does not appear, from any express avei^g
ment in the'bills, that other property own-*
ers have been subject to discrimination pre-
cisely like that of which plaintiffs com-
plain; but the enUre argument for de-
fendants, in these cases and others argued
with them, proceeds upon the theory that
the Board of Valuation and Assessmoit
treated all taxpayers alike over whom they
had jurisdiction; hence, it is fair to assume
that plaintiO^e franchises were assessed ob
tbe same basis of valuation applied by the
Board to other property generally that came
within the range of their official duty.
(1) It is convenient to state at this point
what, indeed, is not controverted, that, if
the suits be otherwise maintainable, the
last-mentioned averments of the bills show
sufficient special grounds for invoking ths
equity jurisdiction, under the rule estab-
liahed by repeated decisions of this court.
Dows V. Chicago, 11 Wall. 108, 110, 11^
20 L. ed. BS-67; Hannewinkle v. George-
town, 15 Wall. 647. 21 L. ed. 2;il; Uniok
P. R, Co. v. Cheyenne (Union P. R. Co. t.
Ryan) 113 U. S. 616, 525, S2B. 29 L. ed.
1038, 1101, 1102, 6 Sup. Ct. Rep. 601;
Ohio Tax Cases, 232 U. S. 676. 587, 68 L. ed.
738. 743, 34 Sup. Ct. Rep. 372.
(2) A fundamental contention of appel-
lants is that the present actions, brought
to restrain them In respect of the perfona-
anco of duties they are exercising under
the authority of ths state of Kentucky, art
,A_.OOglC
ISIO.
GREENK T. LOUISVILLE A INTERURBAN B. CO.
«77
In effect suits sgajnat the state. QueetioDH
of thii sort haye arisen many times in thli
eourt, but the matter vaa set at rest in
Ex parte Young, 209 U. S. 123, lEO, 165,
62 L. ed. 714, 725, 727, 13 L.RA(N.S.)
932, 28 Sup. Ct. Rep. 441, 14 Ann. Can.
764, where it was held that a ault to re-
•train a state officer tram executing an
unconstitutioTial statute, in violation ol
plaintiff'! rights and to hia irrepaTabla
damage, ia not a suit against the state, and
that "individual! who, aa officer! of the
state, are clothed with eome duty In regard
to the enforcement of the laws of the state,
and who threaten and are about to commence
proceedings, either of a dvil or criminal
nature, to enforce against parties affected
an unconstitutional act, violating tha Fed'
. era] Constitution, may be enjoined bj a
S Federal court of equity from such action,"
■ * In repeated decisions since Ex parte
Toung, that case has been recognized as
letting these questions at rest. Western
U. Teleg. Co. v. Andrews, 216 U. 8. 165,
163, 54 L. ed. 430, 431, 30 Sup. Ct. Rep.
286; Eerndon v. Chicago, R. I. & P. R. Co.
£18 U. S. 135, 155, 64 L. ed. 070, 076, 30
Sup. Ct. Hep. 633; Philadelphia Co. t. Stim-
■on, 223 U. S. 605, 621, 66 L. ed. 670, 577,
32 Sup. CL Rep. 340; Home Teleph. t Teleg.
Co. V. Loa Angeles, 227 U. S. 27B, 203, 57
I* ed. 510, 517, 33 Sup. CL Hep. 312; Truai
T. Raich, 239 U. a 33, 37, ao L. ed. 131, 133,
L.RA.1016D, 645, 30 Sup. Ct Rep. 7. And
see Hoplcins t. Clemson Agri. College, 221
U. S. 636, 642-644, 65 L. ed. 800, 804, 696,
35 L.R.A.(N.S.) 243, 31 Sup. Ct Rep. 654.
The principle is not conHned to the main-
tenance of suits for restraining the enforee-
aent of statutes which, as enacted by the
state legislature, are in themselves uncon-
stitutional. Reagan v. Farmers' Loan &
T. Co. 154 U. S. 362, 390, 38 L. ed. 1014,
1021, 4 Inters. Com. Rep. 660, 14 Sup. Ct
Rep. 1047, was a case not of an unconstitu-
tional statute, but of conSscatory, and there-
fore unconetitutional, action taken by a
state commiesion under a eonstitutional
statute. The court, by Mr. Justice Brewer,
said: "Neither will tha constitutionality
«( the statute, if that ba conceded, avail to
oust the Federal court of jurisdiction. A
valid law may be wrongfully administered
by officers of the state, and so aa to make
such administration an illegal burden and
exaction upon the individual. A tax law,
as it leaves the legislative hands, may not
be obnoxious to any challenge, and yet the
officer! charged with the administration of
that valid tax law may lo act under it in
the matter of assessment or collection as to
work an illegal tre!pas! upon the property
right! of the individual." In Raymond v.
OiicagQ Union IracticHi Co. 207 U. S. 20,
38, 62 L. ed. 78, 88, 28 Sup. Ct. Rep. 7,
12 Ann. Caa. 767, the eourt upheld tha
ri^t o( action in a Federal court to ra-
!train the collection of taxes tliat had been
assessed at a different rat« and by a differ-
ent method from that employed with respect
to other taxpayers of the same elass, in
defiance of the provisions of a constitutional
statute that required equalization, and also
in denial of the equal protection of the laws
within the meaning of the 14th Amend-n
* (3) ^nte contention of plaintiffs, set forth*
In their respective bills of complaint that
the action of the Board of Valuation and
Assessment in making the assessments un-
der consideration and the threatened action
of defendant* in reapect of carrying thosa
assessments into effect constituted action
by the state, and if carried out would vio-
late the equal protection provision of th»
14th Amendment, presents, without ques-
tion, a real and substantial controversy un-
der the Constitution of the United States,
which (there being involved a sum and
value In excess of the jurisdictional amount)
conferred jurisdiction upon the Federal
court, irrespective of the citizenship of the
parties. This being so, the jurisdiction
of that court extended, and ours on appeal
extends, to the determination of all quea-
I involved In the case, including ques-
tions of state law, irrespective of the dis-
position that may be made of the Federal
question, or whether it be found necessary
to decide it at all. Siler v. Louisville & N.
I. Co. 213 U. S. 175, 101, 53 L. ed. 763.
'57, 29 Sup. Ct Rep. 451; Ohio Tax Cases,
232 U. S. 576, 686, 66 L. ed. 738, 743, 34
ip. Ct. Rep. 372.
(4) Taking up first the question of stat«
law, we should at the outset briefiy consider
the pertinent provisions of the Constitution
ajid law! of the state. By S 171 of the
Constitution it is prescribed: "The general
assembly shall provide by law an annual
tax, which, with other resources, shall be
sufficient to defray the estiniated expends
of the commonwealth for each fiscal year.
Taxes shall be levied and collected for pub-
lic purposes only. They sbail be uniform
upon all property subject to taxation within
the territorial limits of the authority levy-
ing the tax; and all taxes shall be levied
and collected by general laws." By g 172;
"Alt property, not exempted from taxation
by this Constitution, shall be assessed for
taxation at its fair cash value, estimated
at the price it would bring at a fair volun-
tary sale; and any officer, or other peraonj^
authorized to aesess values for taxatioii,g
who shall commit*any wilful error in the*
performance of his duty, shall be deemed
guilty ef miBfeaaane«^ and upon conviction
,A_i00gle
87S
87 SUPREMB COUBT BEPOBTEB.
Oct. Tom,
thereof ilftll forfeit his offica, and be other-
wise punished, aa nia.j be provided hj Ikw."
Bj S 174: "All property, whether owned
by natural perBona or corporations, shall
be taxed in proportion to its value, unlesa
exempted by this Constitntion ; and all cor-
porate property shall pay the same rat«
of taxation paid hj Individual property.
Nothing Id this Constitution shall be con-
strued to prevent the general assembly from
providing for tojtation based on income,
licenses, or frauchiBes." Section IBl pro-
vides as follows: "The general assenbly
may, by general laws only, provide for the
payment of license fees on franchises, stock
used for breeding purposes, the various
trades, occupations, and profeBaions, or a
special or excisa tax;" etc. And S 1B2 de-
clares: "Nothing in this Constitution shall
be construed to prevent the genersl sasembly
from providing, by law, how railroads and
railroad property shall be assessed and bow
taxes thereon shall be collected."
Under statutory provisions, property b
TBlued for purposes of taiation, both stat«
and local, in the following manner: All
property in the 8tat«, real and personal,
tangible and intangible, except the property
of railroads, the franchises of certain cor-
porations, shares of stock in banks, and
distilled spirits. Is asBSBsed by county as-
sessoTB, subject to the review of county
boards of supervisors and a State Board of
Equalization. Tangible railroad property is
BSBeBBed by the State Railroad Commission.
Bank shares and distilled spirits are as-
sessed by the Board of Valuation and As-
sessment, composed of the auditor of public
accounts, the treasursr of state, and the
■ecretarj of state. And, by g 4077, Ky.
8tat. it is provided: "Every railway com-
pany or corporation . . . also every
other corporation, company or association
having or exercising any special or ex-
elusive privilege or franchise not allowed
*■ hy law to natural persons, or performing
• any'public service, shall. In addition to
the other taxes imposed on it by law, an-
nually pay a tax on its franchise to the
state, and a local tax thereon to the county,
incorporated city, town or taxing district,
where its franchise may b« fficerclsed." The
values of such franchises (except as to
turnpike companies, otherwise provided for)
are to be fixed by the Board of Valuation
and Assessment By S 4078, verified sUte-
ments are to b« delivered annually to the
auditor, showing certain facts respecting
the company, including the amount of capi-
tal stock, with its par and real value, and
the highest price at which it waa sold with-
in twelve months preceding, the amount of
surplus funds and undivided profits, the
value of all other assets, the amount of
Indebtsdness, the gross or net Mrainga or
income, th« amount and kind of tangibla
property In the state, the fair cash valna
thereof, estimated at the price it would
bring at a fair voluntary sale, and such
other facts as the auditor may requira.
Section 4070 provides that "where the lin*
or lines of any such corporation, company or
association extcmd beyond the limits of tb«
state or county," the statement shall, bi
addition to other facts, show the length of
entire lines operated, owned, leased or con*
trolled in the state and in each county, in-
corporated city, town, or taxing district,
and the entire line operated, etc., elsewhere.
There Is a proviso that the Board, from tha
statement furnished to it by the corporation,
and from such other evidence as it may
hare, la to "fix the value of the capital
stock of the corporation . . . and from
the amount thus fixed shall deduct the
assessed value of all tangible property ao-
sessed in this state, or In the counties where
situated. The remainder thus found shall
be the value of its corporate franchise aul>-^
ject to taxation as aforeoaid." > It hae^
been held by the Kentucky court oPappeala,*
and by this court, that the "capital stock of
tbs corporation," here referred to, includes
its entire property, of every kind and de*
scription, tangible and Intangible, and that
what is called a "franchise tax" is nothing
else than a tax upon the intangible property
of the company in Kentucky. Henderson
Bridge Co. v. Com. SS Ky. 623, 639, 641,
29 L,R.A. 73, 31 8. W. 486; Henderson
Bridge Co. v. Kentucky, 166 U. S. 160, 154,
41 L. ed. 953, 954, IT Sup. Ot Bcp. 632;
Adams Exp. Co, v, Kentucky, 166 U. S.
171, 180, 41 L. ed. 060, 963, 17 Sup. Ct.
Bep. 627 i Louisville Tobacco Warehouse Co.
v. Com. 106 Ky. 165, 167, 57 L.R.A. 33, 40
S. W. 1069 1 Marion Nat. Bank v. Burton,
121 Ky. 878, 888, 10 L.RJ-(N.S.l 847, 80
S. W. B44. In view of these decisions, BO
serious attempt Is made to sustain the aa-
sessments in question as a taxation of
franchises, under SS 174 or ISl of the Con*
stitution. There seems to b« no provision
of law for taxing franchtses under either
of those sections. Marian Nat. Bank *.
iThe particular method of fixing the
value of "capital stock" and of "corpo-
rate franchise" is not in issue in the present
cases. The district court, In Louisville It
N. R. Co. V. Bosworth. 209 Fed. 380, 40»-
411, reading gS 4077-4079 together, seems
to have considered that the method pre-
scribed by the proviso in | 4079 was ap-
plicable to all public service corporations
organized In Kentucky, including thoat
which operate and conduct their business
and have their property wholly in that
state. And this appears to have been the
view of the Kentucky court of appeals la
Louisville B. Co. t. Com. lOB Ky. 710, 714,
49 a W. 486.
A^iOOglC
IBIL
QEEENX T. LOUISVILLK * niTERUBBiAH B. CO.
m
BDrton, 121 Ky. 870, SSfi, 10 h.KA.iVS.)
ft, 90 S. W. OM.
To recOipitulBta: Real eatate aod perional
propert7 of indiTidnala and of nonfranchlse
corporations are assMsed by t^ie county aa-
■MBOra, both for itate and county purpooea;
tanj^ible railroad property by the Railroad
Conuttiadoti; bank aharea, distilled iplrlta,
and corporsta f ranch lass by the Board of
Valuation and Assessment. It la important
to ba observed that the latter board haa no
authority or control over the actions of the
coonty aeseBsors, the county boards of auper-
Tisors, or the Stato Board of Equalization;
and, on the other hand, these officials have
fno authority or control over the actions of
the Board of Valuation and Assessment.
Nor It there any atntutory* provision for
aqualizing aBsesaments. as between the prop-
erty which is assessed by the county assses-
Bors and that which ia aasessed by the Rail-
road Commission and the Board of Valua-
tion and AasessmenL
It hardly ia open to aeriona dispute that
It the legislature had confided to a single
body the determination of the basis of assees-
ment of the real estate and personal prop-
erty of individuals and nonfranchise eor-
porations, on the one hand, and of the
tangible and intangible property of public
aervice corporations, toi the other, a valu-
ation of property of the latter class on the
basis of TS per cent of its actual value, while
property of the former class waa assessed
systematically at G2 per cent, or not more
than 60 per cent, of its actual value, would
be inconsistent with the seetfoDH we have
quoted from the Kentucky Constitution.
For the provision of | I8S, permitting t^e
general assembly to provide by law "how
rallroada and railroad proper^ shall be
assessed, and how taxes thereon shall be
eollected," relates merely to the mode of
assessment and collection, and manifestly
does not permit a departure from the re-
qutrementa of tmiform taxation in propor-
tion to value, and an identical rate as be-
tween corporate and individual proper^,
conUined in {J ITl and 174. The Utter
aeetion permits the general assembly to pro-
vide for taxation htued on income, licenses,
or franchises. But, as already stated, at
least at the time these suits arose, tiiere
was no provision of law for a taxation of
frsnehises in any other sense than tliat al-
ready explained. Marion Nat. Bank v. Bur-
ton, supra.
The fact should be emphasized tha,t tiie
Kentucky eonrt of iaat resort, far from
holding that discrimination eueh as Is here
eomplained of it in accord with the Coa-
■titution and laws of the state, has raaog^
niced distinctly that it la not; but baa felt
eonatrained to hold that^ under cironm-
staDcei almlUr to those of tlie present casea.^
tliere Is do redreaa In the oourts of the state ;g
and that the* eonatltational provisions for*
equality and uniformly are capable of be-
ing put into execution only through the
selection of proper assessing officers. Louis-
ville R. Co. V. Com. 105 Ey. TIO, 719,
40 8. W. 488. This, while admitting the
wrong, merely denies judicial relief, and la
not binding upon the Federal courts.
In Cummings t. Merchants' Nat. Bank,
101 U. 8. IE3, 26 L. ed. SOS, the banU
brought Its bill In equily in a circuit court
of the United States to enjoin the collection
of a tax assessed against the shares of Ita
Btoekholders not because of inconsistency
with the act of Congress relating to the
taxation of such shares (Rev. Stat. S E219,
Comp. Stat. 1S16, | 0784), hut upon the
ground of a violation of the Constitution
and laws of the state of Ohio, which re-
quired the taxation of all moneys, credits,
and investments, and also all real and per*
sonal property, to be by a uniform rule and
according to its true value in money. The
supreme court of the state (Exchange Bank
Hines, 3 Ohio St. 1, 16) had held that
they required uniformity not only in the
rate of taxation, but also in the mode of
the assessment upon the taxable valuation.
But the legislature had adopted a system
of valuation under which there were differ-
ent bodiea acting Independently of one an-
other in regard to different classes of prop-
erty In the process of estimating values for
taxation, with one Board of Equalizatitnx
having charge of the valuation of the real
estate of the whole stats onee in every t«n
years, another having charge of the valu-
ation of railroad property every year, k
third of the valuation of shares of Incor-
porated banks every year, but with no com>
mon superior to secure equalisation as be-
tween the different classes of property.
The evidence showed that in the county
where complainant's bank waa situate the
OBseBBore of real property, the assessors of
personal property, and the county auditor
(who was the assessing officer for bank
shares) concurred in establishing a rule of^
valuation by which real and personal prop-g
erty, except money, were* sBsesaed at one*
third of actual values, and money or in-
vested capital at six tenths of its value;
that this rule waa followed; and that tor
the year In question the State Board of
Equalization Increased the assessment upon
the bank shares to their full cash value,
nils court held (p. 157) that "when a ruU
or system of valuation Is adopted by those
whose duty it is to make the assessment,
which ts dealgned to operate unequally and
to Tiolat« a fundamental principle of the
[state} Cmatitution, and whan Uiia rule is
,A_^OOglC
a? SUPKEMB COURT aEPORTBR.
Ooi. Tekm^
applied not eoltly to one indivldusl, but ta
a. large class of individusJi or corporations,
that equity may properly interfere to re-
■train the opsration of this imconstitutionBl
exercise of power;" aad that tbia being the
cs.Be made by tba bilt, and being supported
by the evidence, while the statute could not
be declared unconstitutional, the discrimi-
natory rule muet be held void and the in-
justice produced under it remedied eo far
as the judicial power could give remedy,
(6) Is discriminatory taxation, contra-
vening the express requirements of the state
Constitution, beyond redress in the courts
of the United States, their jurisdiction being
properly invoked, nbeu the discrimination
results from divergent action by different
aaseeaing boards whose assessments are not
subject to any process of equalization estab-
lished by the state, and where the diverse
results are the outcome, not, indeed, of any
express agreement among the officials con-
cerned, but of intentional, systematic, and
persistent undervaluation hj one body of
officials, presumably known to and ignored
by the otier body, so that in effect the two
bodies act in concertT la out opinion, tha
answer must he in the negative.
Appellants' contention that thers ts no
remedy bj injunction against the auess-
ments imposed by the Board of Valuation
and Assessment places undue emphasis up-
0 on the requirement contained in g 172 of
■ the Constitution, that all property shall be
• assessed for taxation at ita fsJr'cash value,
estimated at the price it would bring at a
fair voluntary sale,— a provision that is
repeated in % 4020, Ky. Stat., which deals
with the duties of asaeasing officera The
averments of the bills of complaint, admit-
ted on this record, are that the Board did
not assess the property of plaintiffs at fair
cash value, but at 75 per cent thereof; and
tbat this resulted in unequal taxation only
because the county aasessments were at a
■till lower percentage. But, laying this
aside, and assuming for the moment that
the Board performed its duty strictly in
accordance with g 172, by assessing plain-
ts fTs properties at fair cash value, what
is the effect of that action, in view of the
systematic undervaluations by the assessing
officers charged with valuing other claases
of property! This question cannot be an-
swered without considering the relation
of g 172 to §3 ITl and 174, which require
uniform taxation according to value, and
an identical rate as between corporate
and individual property. The operation and
effect of such a taxing system, both in re-
spect to raising the necessary moneys and
in distributing the burden among the tax-
payers, depend upon two considerations;
first, the rate of taxaUon, and, secondljr, th*
basla of valuation of tha property to ba
taxed. Plainly, the provision of S 174 that
"all corporate property shall pay the earn*
rate of taxation paid by individual prt^-
erty" means that not only the percentaga
of the rate, but the basis of the valuation,
shall be the same, 'taxing by a uniform
rule requires uniformity not only in th«
rate of taxation, but alao uniformity In tha
made of the assestmetit upon the toxabla
valuation. Uniformity in taxing implies
equality in the burden of taxation; and this
equality of burden cannot exist without
uniformity in the mode of the assessment,
as well as in the rate of taxation." Ex-
change Bank v. Hincs, S Ohio St. 1, 15,
quoted in Cummings v. Merchants' Nat.
Bank, 101 U. 8. 163, 159, 25 L. ed. 903, BOS.^
It is equally plain that It makes no differ-g
ence what basis*of valuation — that ia, what*
percentage of full value — may be adopted,
provided it be applied to all alike. 1^
adoption of full value has no different effect
distributing the burden than would ba
gained by adopting 75 pn cent, or 50 per
cent, or even 10 per cent aa the haais— so
long as either was applied uniformly.' Tha
only differenca would be that, supposing tha
rEquirementa of the treasury remained con-
stant, the rat* of taxation would have ta
be increased as the percentage of valuation
was reduced. (Under g 171 of the Consti-
tution, the rate of taxation may be varied
by the general assembly frmn year to year,
according to requirementa. ) 'Therefore, tha
principal if not the sola reason for adopt-
ing "fair cash value" as the standard for
valuations is as a convenient meana to an
end, — tha end being equal taxation. Bat if
the standard be systematically departed
from with respect to certain clasaes of prop-
erty, while applied aa to other property,
it does not serve, but frustrates the very
object it was designed to accomplish. It
follows that the duty to aasees at full value
cannot tie supreme in all cases, but must
yield where necessary to avoid defeating
its own purpose.
A substantially Identical question was
presented to the circuit court of appeals for
the sixth circuit in Taylor r. louiavilla A
N. R. Co. 31 C. C. A. 637, 60 U. 8. App.
186, 88 Fed, 360, where the ConstituUon <rf
Tennessee declared that all property should
■ A few of the states have enacted laws
adopting percentages of full value aa bases
of taxation; Iowa, 25 per cent (Code Supp.
1907, 5 1305) ; Dlinoia, 20 per cent (Kurd's
Stat 189S, p. 13fl5e), afterwards 33} per
cent (Hurd's Stat. 1909, p. 1882, g 312;
Kurd's Stat 1912, p. 1B83, 9 312) ; Ne-
braska, 20 per cent (Rev. Stat 1913, g
6300); Alabama. 60 per cent (Oen. Aola
191S, p. 393, g t).
A^^OOglc
191S.
GKEENE T. LOUISVILLE & INTEEURBAN E. CO.
«81
be t«zed sceordiug to Its Talu«, to be u
tained «• the l^iilature ihould direct,
that tajiea aball be equal ftnd uniform
throughout the state," and the etatutea
^ required that the real vaJue of the proper^
2 be adopted, and where, aa here, railroad
• property and'aome other kinds were valued
bj one set of officlaJs, and property in gen-
era] by another, without provision for equal-
ization as between the two classea. The
court, by Circuit Judge Ta(t, eaid (p. 3M) i
"The sole and manifest purpose of tlie Ckm-
■titution was to aecure uniformity and
equality of burden upon all the property
In the itate. Aa a means of doing to (con-
ceding that defendatit'a conatruction la the
correct one) , it provided that the aaaessment
should be according to its true value. It
emphasized the object of the section by ex-
pressly providing that no species of prop-
erty should be taxed higher than any other
apeciea. We have before us a ease in which
the complaining taxpayer, and other tax-
payers owning the same species of property,
are taxed at a higher rate than the ownera
of other species of property. This does not
come about by legislative discrimination,
but by the intentional and systematic disre-
gard of the law by those charged with the
duty of assessing all other species of prop-
erty than that owned by complainant and
its fellows of the some class. ... [p.
366] , The question presented is, then,
whether, when the sole object of on article
of the Constitution is being flagrantly de-
feated, to the gross pecuniary injury of a
class of litigants, ajid one of them ap-
peals to a court of equity for relief, it must
be withheld because the only mode of grant-
ing it will involve an apparent departure
from the method marked out fay the Consti-
tution and the law for attaining Its sole
object. We say 'apparent' departure from
the constitutional method, because that in-
strument contemplated a system in which
all property should be assessed at its real
value. . . , The court is placed in »
dilemma, from which it con only escape by
taking that path which, while It involves
a nominal departure from the letter of the
law, doc9 injury to no one, and secures that
nniformity of fax burden which was the
' sole end of the Constitution. To hold other-
• wise is to make the restrictions of thc^Con-
atitution instruments for defeating the very
purpose they were intended to subserve. It
is to stick in the bark, and to be blind to
the substance of things. It is to sacrifice
justice to Its incident."
After pointing out the similarity of the
ease to Cummings v. Merchants' Nat. Bank,
■npra, and declaring (p. 372) ; "An inten-
tional undervaluation of a large cloaa of
proper^, when the Uw ujolm saseasment
at true value, Is neeesaarily designed to
operate nnequally upon other "'"«— T of
property to be assessed by other taxing
tribunals, who, It may be presumed, will
conform to the Uw," the court further
said (p. 374): "Iho various boordi whose
united action ia by law intended to effect «
uniform assessment on all classes of prop-
erty are to be regarded as one tribunal, and
the whole assessment on all classes of prop-
erty is to be r^arded as one judgment. If
any board which Is an essential part of the
taxing system intentionally, and therefore
fraudulently, violates the law, by uniformly
undervaluing certain elaasea of property, the
assessment by other hoards of other classes
of property at the full value, though k
literal compliance with the law, makes the
whole Btsessment, considered as one Judg*
mcnt, a fraud upm the fully assessed prop-
erty. And this la true although the par-
ticulsr board BBseasing the complainant's
property may have been wholly free from
fault of fraud or intentional discrimlna-
The justice of this view has been recog-
nized by the state courts of last resort in
many caaes. Bureau County v. Chicago, B.
& Q. K. Co. 44 111. 229, 23S; Cocheco Mfg.
Co. V. Strafford, 61 K. H. 453, 482; Man-
chester UiUs V. Manchester, 63 N. H. 38;
Randell v. Bridgeport, 83 Conn. 321, 324,
28 Atl. G23i Chicago, B. A Q. 11. Co. t.
Atchison County, G4 Kan. 781, 792, SB Pao.
1039; Ex parte Ft. Smith & V. B. Bridge
Co. 62 Ark. 481, 468. 38 S. W. 1060; Burn-
ham V, Barber, 70 Iowa, 87, 90, 30 N. W,
20; Ban V. Board of Equalization, 133 Iowa,*
563, 665, 111 N. W. 41; Iowa C. R. Co. T.S
Board of Review* (1916) — Iowa, — , 157*
N. W. 731; Lehigh ft W. B. Coal Co. ».
Luzerne County, 225 Pa. 287, 271, 74 AtL
67; People v. Illinois C. E. Co. 273 111. 220,
244-250, 112 N. E. 700. There are declara-
tions to the contrary (State, Central R. Co,
Prosecutor, v. State Assessors, 48 N. J. L.
1, 7, 67 Am. Rep. 616, 2 Atl. 7S0; Lowell
V. Middlesex County, 162 Mass. 372, 375, 9
L.R.A. 356, 25 N. E. 46S), but they take
little or no account of the rights of ag-
grieved taxpayers,
(6) The next question is order is wheth-
the assessments have the effect of denying
to plaintiffs the equal protection ot the laws,
within the meaning of tlio 14th Amend-
ment. It is obvious, however, in view of
the result reached upon the question ot
itnte law, just discussed, that the disposl-
ion of the cases would not be affected by
whatever result we might reach upon the
Federal question; for no other or greats
relief Is sought under the "equal proteo>
tion" olausa than plaintiffs are entitled tA
uadar tti« frovi^ons of the Constitution
A^iOOglC
S? SUFBEMB COURT &EPORTEB.
Oot. Tmc
and ]»Wi of tlie atate to wMch we have n-
ferred. Tberefora, we find it unneceSEsr;
to czprest an; opinion upon the ^eation
raised under the 14tli Amendment.
(7) It is objected that appellees had an
adc^jnate remedy at law, and Sin^r Sewing
Mach. Co. T. Benedict, 229 U. S. 481, 67 L.
ed. 1288, 33 Sup. Ct. Kep. 941. is cited as
a controlling tLuthority. There the suit was
brought to enjoin the collection of taxes
levied by the city and county of Denver,
In the state of Coloraiio, and because of the
act of CongreBB (Rev. Stat, g 723, Comp.
SUt. 1916, g 1244) and familiar decUione
applying and enforcing it, since tt appeared
that a local etatute required the board of
county commiEsioners to refund taxes paid
and therpafter found to he erroneous or
Illegal, "whether the sams ba owing to
erroneous assessment, to improper or Irregu-
lar levying of the tax, to clerical or other
errors of omission," with a correlative right
on the part of the taxpayer to enforce that
duty by action at law, and the deciaioDs
of the supreme court of tha state Interpreted
the statute ao as to give an adequate rem-
. edy at law, this court affirmed a decree dls-
M miasing the bill.
f * The statute that is here Invoked is 9 182,
Ey. Stat., which reads as follows: "g 162.
Taxes wrongfully collected refunded. — When
it shall appear to tha auditor that money
has been paid into the treaanry for taxes
when no such taxes were In fact due, he
■hall issue his warrant on the treasury for
such money so improperly paid, in behalf
of the parson who paid the same. . , ."
But, by a line of recent decisions In the
Kentni^ court of appeals, the effect of this
Kction has been confined to caaea where tha
tales paid either were wholly without war-
rant in law or were baaed upon a mistake
M to the rate of taxation upon the amount
•aaessed j and it has been held not to author-
ize the auditor to correct arroneoua aaeesa-
ments, since that official la not intrusted
with authoritv to make asaesements. Ger-
man Secur. Bank v. Coulter, 112 Ky. 677,
684, 587, 60 S. W. 425, 427; Couty v. Boa-
worth, leo Ky. 312, 109 S. W. 742; Bos-
worth V. Metropolitan L, Ins. Co. 182 Ky.
344, 348, 172 S. W. 661; Louisville Gas ft
E. Co. T. Bosworth, 169 Ky. 824, 829, 630,
185 S. W. 125.
But, were it otherwise, % IS2 dearly ap-
plies to state taxes alone, while the bills ol
complaint herein have to do with both state
and local taxea. A remedy at law cannot
be considered adequate, so as to prevent
equitable relief, unless It covers the entir«
case made by the bill is equity. Were we
to require a diamiasal of these bllla aa to
tha state taxes, retaining tbem a« to the
local taxes, we should multiply suits, in-
stead ol preventing a multiplicity of suite.
It is a familiar maxim that "a court of
equity ought to do justice completely, and
not by halves;" «j)d to this end, having
properly acquired juriedictlon of a cauae
for any purpose, it should dispoae of the en-
tire controversy and its incldenta, and not
remit any part of it to a court of law.
Camp V. Boyd, 229 U. 8. 530, 551, 552, 67
L. ed. 1317, 132B, 1327, 33 Sup. Ct. Rep.
785; McGowan v. Parish, 237 U. S. 285, 29S,
59 L. ed. 955, 963, 35 Sup. Ct Rep. 543. h
(S) It is contended that appellees, if iig-3
grieved, had 'another and more equitable*
remedy than a suit for injunction; that the
law of the state provides a method by
which, Instead of lowering the txaeaaintata
upon the property of appellees, they could
by proper procedure compel the assessment
of the property of other taxpayers to h«
increased so as to come within the oonsti-
tutional requlremeitt aa to fair cash value,
and hence that it was the duty of appelleea
to adopt that method. The reference is to
gg 4116-4120, Ky. Stat, which require the
county board of supervisors to convene
annually and moke a careful examination
of the assessor's books and each individual
list thereof, empowering them to increase
or decrease any list; "but the board shall
not reduce or raise any assessment unless
the evidence be clear and unmistakable that
the valuation is not a fair cash value." By
g 4123, they may hear complaints, Bammon
and swear witneasea, and require them to
testify, ^ere is nothing in these provi-
sions to Indicate that partiea in the litua*
tion of the present appelleea, who have no
different interest in the undervaluation by
the county aBscasora than tliat which mi^t
be poBBCBBed by any other citisens of the
state, are entitled to be heard to omnplain
that the county aBseesments are too low.
Nor is any case cited where such a com-
plaint has been entertained. The remedy
of reasaeasment appeara to bs a public, not
a private, remedy.
We conclude that the decrees of the Dig-
trict Court must be and they are affirmed.
Hr. Juattce Holmaa, Ifr. Juatloe Bimn-
dela, and Mr. Justiee OUrba diaawt.
>v Google
LOUISVILLE t NASHVILLB R. CO. r. GBEEHB.
1«1«.
OH P. am?
LODISTILLE ft NASHTILLB HAILROAD
COMPANY, Appt,
EOBERT L. GREECE, Auditor of Public
Accounts, et al.. Individually and as
Constituting th« Board of Valuation and
AMeiunent of the Stat* of Kontuekv,
et al. (No. 778.)
BOBEET L. GREENE, Auditor of Public
Aceounta, et al., In di vidua! Ij and as
Constituting the Board of Valuation and
Assessment of the State of Keutuckv,
•t al., Appto.,
LOUISVILLE ft NASHVILLE RAILROAD
COMPANY. (No. 779.)
OoTTKis 4=3268 — Fedkbai. Courtb— JimS'
DICTION — QuxanoNB nor au. Fxdtka.i-
1. Federal juriadiction, having bee
Toked upon substautia! grounds of Federal
law, extends to the determination of b1[
qucHtions involved in tbe case, whether reat-
tng upon state or Federal law.
DS^il'm-wS"/ °*^' ""■ •* ^■"** '^'"■
STt.ne «=>191(2)— imajRiTT from Suit-
suit AOAiiTBT State OrFicxBa— Ekjoir-
IHQ IlXEOAI. Taxtb.
Z, SUte officers charged with the duty
•f enforcinc the tax laws of the state may
be enjoined by a Federal court of equity
fron tailing steps loolcing toward the en-
forcement of state and local taxes upon the
intangible property of a public service cor-
poration, assessed under state authority,
whieli are asserted to violate the Federal
Cmistitntion becansa ai a discrimination
in the valuation of the property upon which
the taxes are based, arising out of svi-
tematic undervaluation of other taxable
property, although the state laws under the
sanction of which the officers asBumed to
act in making the assessment do not con-
template any unlawful discrimination.
ofmS !£"■-'" "">"■ cas". — 8lat«a, Cent.
TaIATIOW «=3606^) — lUsTBAlNINS It-
usAi. Taxation— RoiBDX at Law.
8, A public service corporation may
■ne in equity to restrain state officers from
taking steps looking to the enforcement of
oertaiu state and local lo-ealted franchise
taxes on the ground of discriminatioii in
Taluation of the intangible property upon
which such taxes are based, notwithstand-
ing tbe remedy afforded by Ky. Stat ) 1S2,
directing the state auditor to refund taxes
unlawful Ij oollectcd, such remedy being in-
adequate to prevent equitable relief tor
two TeMons: (a) by the decisions of the
Kentucky courts this section is conSned to
eases where the taxes paid were wholly
without warrant in law, or based upon a
mistake as to the rate of taxation upon the
amount aasessed; (b) the bills deal with
both atate and local taxes, white this sec-
tion appllei to state taxes alone.
[Ed. Nate.— For acher eaaau, see Taxation.
Cant. Dll. i 1231. ]
Taxation C=s608(5) — Rkstraihino Il-
legal Taxation— Uheq UAL Abbbssxent,
*. The requirement of Ky. Const, g 172,
tbat all property "shall be assessed for
taxation at ita fair cash value, estimated
at the price it would bring at a fair volun-
tas sale," will not prevent injunctive re-
lief against steps looking to the enforce-
ment of certain state and local so-callal
franchine taxes based upon an assesBiacnt
of the intangible property of a public serv-
ice corporation by the State Board of Val-
uation and Assessment at not more than
its fair cash value, where the local assess-
ing officers, charged with valuing other
classes of property, systematically under-
value such property, since to appiy to one
class of property tSe standard of fair casli
value, systematically departed from with
respect to other classes of property, would
frustrate the principal object of that sec-
tion, which, in view of the provisions of
Identical rate as between corporate and
Individual property, must be deemed to be
equal taxation.
CSd. Note.— For other cues. SM Taxation.
Cent. Dit. I ISt.;
Taxation *=60S(5)— Rebtkaikiro State
Taxation — iNEQtiALiTT o» Valuatioh.
fi. State as well as local so-called fran-
chise taxes based upon an aeaessment of
tbe intangible property of a public service
corporation, made by tbe State Board of
Valuation and Assessment, may be en-
Joined by a Federal^ co^rt for discrimina-
tion arising out of systematic undervaluatiou
of other taxable property, where the prop^
state officers charged with the enforcement
of the tax law of the state are made pai^
[Bill. Note.— For other nasss. eea Taxation,
Cent. DlB. I mi-l
Taxation «=319(2)— Evidence— Weioht
— SVBTKltATIC UNDBBVALUATIOn 0» TAX-
ABLE PSOFIBTT.
6. General presumptions arising from
the statutory duty of assessors to assess at
fair cash value, and from the oath (
B all
property at its fair cash value, and tbat If
any property was otherwise assessed. It
was unintentional, and not pursuant to any
agreement between assessor and taxpayer, —
do not necessarily impair the probative ef-
fect of official admissions and direct and cir-
cumstantial evidence from unimpeached pri-
vate and public sources tbat the great mass
of property in the state was intentionally,
systematically, and notoriously assessed far
below its actual value.
Taxation ^=>4&3(8)— Review or ritfonrs
OF OmciAL BoDT— Valuatioh fob Tax
PUBPOSES.
7. The Hndings of an official body, sueh
I the State Board of Valuation and Aa-
sessmcnt, created by Ky. Stat. 9| 4077-
is topic * KBi-mncBBR u an ibr-NDi
dDIv
"•■^Coogic
SM
S7 SUPREUB COnBT RBPOBTBB.
Ooi. Ttaiif
4081, to Sx the T&lue of Um Intangilile
property of public Bervica eorporatioDS for
eo'Called state and local franchiae taxes,
when made after n hearing and notice to
the taxpayer, are quasi judicial in their
character, and are not to be set aside or
disregarded by the courts unless it la mad*
to appear that the board proceeded upon an
erroneous principle or adopted an improper
mode of estimating the value of the prop-
erty, or unless fraud appears.
[Ed. Note.— For other cases, see Taxation
CsHt. Dig. I SS!.]
TiXinos «=>379— ViLUATiort of Capitai,
Stock fob Tax PuaPosES— DBurcnoNB.
S. The metiiDd of deducting nontaxtU^le
■asets adopted by a State Board of Valua-
tion and AsecBBment when flxlng the value
of the capital stock of a railway company
upon the capitalization- of ^income plan, pur-
suant to Ky. Stat. 59 4077-4081, for the
Eurpose of ascertaining the value for tai-
ig purpose B of its intangible property,
cannot be said by the courts to he funda-
mentally erroneous merely because there
was deducted from total net income the net
Income only of nontaxable securities owned
by the corporation, although much of the
etock of other corporations thus held, while
paying no dividends, or dividends of low
rate, may have had large intrinsic value by
reason of the control it gave over other
lines and the increment It brought to the
aggregate income of the company.
_t™. NotB.-For othsr oues, sm Taxation.
Cent. Dig. I m.]
Taxation ^»493(4)— Review of Findirob
OF Official Body— Valuatioit of Cap-
itai, Stock fob Taxiho Pubposes— In-
terest Bate ab Basis or GAfiTAuZA-
Tioir.
9. The objection that a state board,
when fixing the value of the capital stock
of a railway company upon the capitaliza-
tion-of -income plan, pursuant to Ky. Stat.
;; 4077-4081, for the purpose of ascertain-
ing the value for taxing purposes of its in-
tangible property, adopted a S per cent
intereet rate aa the basis of capitalization
instead of the higher rate reached by taking
the railway company's mileage in each of
the states in which it operates, multiplying
this by the legal rate of interest in that
state, and dividing the total of the prod-
ucts by the total mileage, is a criticism
merely of the conclusion of the board upon
a question of fact which is not properly
subject to review by the courts,
[Bd. Note.— For other cum, m« Taxation,
Cent. Dig. I ST9.]
OoDRTa <^=366(6)— Fedbbal Co dbts— Fol-
lowing DKCrsiosa OF State Couhts—
MjcTHOD OP Valuation fob Tax Pub-
FOBES— INTANOIBLE PBOPEBTT OF INTEB-
flTATE RAILWAS COIIPANT.
10. Federal courts will follow the dect-
flton of the highest state court of Kentucky
that Ky. Stat. §§ 4077-1081, governing the
raluation of the intangible property of an
interstate railivay company for tax pur-
poses, properly construed, require first an
apportionment to Kentucky of the proper
share of the entire valve of the c«pit«l
■tock, having r^ard to the relation of
■tate mileage to Ryitem nitntge, followed
t^ a deduction froin the stat^'e proportion
of the capital stock value of the asseesed
value of the company's tangible property
within the state, rather than a deduction of
the total tangible property in and out of
the state from the total capital stock valna
before apportionment to tite state.
[BM. Not*- For othsr coaoa, SM Courts, Cent,
Dig. I 8*1,1
Taxation e=»g^7e(l)— Valuation of In-
TAnoiBLE Property of Iittkbstatx IU.n>
WAY CoiiPANT— Ratio or Stai* Mile-
age TO Sybtxu Mileaob— Coribolled ok
Operated Mu^ea^e.
11. The controlled mileage within and
without the state, and not merely the oper-
ated mileage, 1b what the SUte Board of
Valuation and Assessment must take iota
ideration when fixing the value of tha
intangible property of an interstate rail-
way company for tax purposes, conformably
to Ky. Stat j 4081, which requires that
"that proportion of the value of the capital
stock which the length of the lines operated,
owned, leased, or controlled in thu atate
bears to the total length of the lines owned,
leased, or controlled in this state and else>
where, shall be considered in fixing tha
value of the corporate franchise of such
corporation liable for taiatioa In Hii^
state."
(BA. Nota.— F^r other caaae, saa Taxation,
Cent. Dig. II as. »-ni.I ^^ i»»u™.
Taxation cS=676{1)— Vadatioh of Iw-
TANQISLE PBOPEBTY OF IkTEBSTATE RAIL-
WAY Company — Contbolleo Mileaos:
WOT Bzpbesehted by Stock Holdings.
12. The value of so much of the rail-
way mileage controlled by an interstate
railway carrier as Is not represented by
the Jatter's stock holdings should be in-
cluded by the State Board of Valuation and
Assessment when fixing the value of the
intangible property of such company for
tax purposes, conformably to Ky. Stat
S 4081, which requires that "that propor-
tion of the value of the capital stock which
the length of the lines operated, ovmed,
leased, or controlled in this state bears to
the total length of the lines owned, leased,
>r controlled in this state and elsewhere,
ihall be considered in fixing the value of
the corporate franchise of such corporation
liable for taxation in this stata."
[Kd, Nota.-For othflr ci
Caat. Dis. II GS, (29-631.]
TAXATION *=376(1)— VAtUATIOB OF IN-
TANOIBLE PROFBBTY OF IniEBBTATE RAIL-
WAY Company— DzDDcnoNs — Double
13. To avoid a double assessment there
must be deducted from the Kentucky ap-
portionment of the value of the capital
stock of an interstate railway company,
the value of tha Kentucky portion of the
mileage controlled by it (in addition to the
authorized deduction of the assessed value
of the property there situated) when fixing,
conformably to Ky. EUt § 4081. the value
of the intangible property of such company
for tax purposes, since the local franchiaa
would be assessed against each of the sepa-
rate organizations.
[BO. Not!,— For other case*, see TaxatloB,
Cent. Dig. H SB, <»-eu.]
^C
'O
s>Far other ci
■■ SM same topic * KSnT-NDUBBR In aU K«r-Numt>«r«d DlgtaU A Index
3tl6.
LOUISVILLE ft KASHVILU: H. CO. r. GREENE.
Taxation e^sSOO— Sdit AiTACKiNa Valu-
ation—Basino JcDOUEHT vrov Failube
or PBaoi^AsiiiB8ioN8.
14. A suit attacking tha Tslustioii of
IntaDgtble corporate propertr for tax pnr-
poM* should not have beou In affect de-
elded againat the plaintiff beeauM there
waa nothing in the record to ahoir the
truth of certain averments In a aupple-
tnental bill, filed with the court's permis-
sion after the hearing and decision of the
cause, but before entry of the final decree,
even though it cannot be said that defend-
ants, hy not answering, admitted such aver-
ments, or that the court erred in tailing
to give effect to them, there being nothing
In tilt record to show that defendants were
ordered to answer, or to show why the
averments were ignored, since plaintiff
eould not be held in default for omitting
to introduce evidence at the hearing re-
electing these matters, thej not having
been considered by the state board which
made the valuation, nor set up in the origi-
nal pleadings, nor, so far as appears,
deemed by any of the parties to be material
until the coiut rendered its decision.
[Bd. Nats, — For ntlier oaisi. see Taxation,
Cent. DIK. H KS-tSa.J
Taxatiob «=381&{2)— EIvidzivcb— Fbbbuup-
Tion— Official Actxom— Tax Mattkbb—
Vai,cacion,
15. A valuation for tax purpoaes having
heen ahown to be tbe result of following
K method substantially erroneous because
■ot in accordance with the controlling stat-
utes, there Is no presumption that a like
valuation would have been reached by fol-
lowing a correct method, and when the dit-
INos. T78 and 779.]
CROSS APPEALS from tie District
Court of the United States for the
Eastern District of Kentucky to revic
decree enjoining state officera from
forcing so-called franchise taxes on the
basis of valuation of the intangible prop-
erty of an interstate railway carrier an
condition that plaintiff should pay taxes
on a certain amount in ezeeaa of the
amount upon which payment was made at
the beginning of the suit. Reversed on ap-
peal of the railway company; affirmed on
«rosB appeal.
See Bnme cnse below, E30 P'ed. 191.
The facts are stated in the opinion.
Messrs. Helm Brnce, Edward S. Jouett,
William A. Colston, and Henry L. Stone
for the Louisville k Nashville Railroad
Company.
Mr. Marvel H. Logan, Attorney Qen-
•ral of Kentucky, and Ueaara. Jttlin L.
* Mr. Juatiea Pitney delivered the opinloa
of the eourt:
These cases are an appeal and a eron
appeal from a final decree of the district
court in a suit that was commenced by the
Louisville & Nashville Railroad Company, a
Kentucky corporation, against Henry 11.
Bosworth and others, then constituting tbe
Board of Valuation and Aeaeasment of thai
state (Bosworth being also auditor of puh<
lie accounts], and against the attorney
general of the state and his assistanta, seek-
ing to restrain the taking of any steps
toward enforcing state and local taxes upon
the basis of an assessment of the "fran-
chise" of the company for the year 1913,
made by the Board of Valuation and Asses*'
ment at the sum of (4d,65S,S30, or upon th*
basis of any greater valuation than t22,899,-
200; and this upon the ground that the as-
sessment was unlawful and not in accord-
ance with the statute, wai the result of an
abuse of power by the Board of ValuatioMu
and Asaesament, and if enforced would r^Q
suit in a taking*of plaintiff's property with-*
ont due process of law and a denial of the
equal protection of tiie lawa, contrary to g 1
of the 14th Amendment. By a supple-
mental bill, Robert L. Greene and others
were brought tn as succeaaors in office of
the original defendants. There being no
diversity of citicensbip, the jurisdiction waa
rested upon the ground that the suits arose
under the cited provisions of the Federal
Constitution; but plaintiff relied also upon
the provisioDS of the Constitution and lawa
of the state. A chief ground of complaint,
based upon tbe equal protection provision
of the 14th Amendment, and also upon the
requirement of equal taxation prescribed by
59 171, ITS, and 174 of tbe state ConsUtn.
tion.l was that the plaintiff had been sub-
jected to illegal discrimination, in that ItA
property bad been assessed at more than Itu
actual value, whereas the property of alt
other taxpayers in the state was assesssd
uniformly and intentionally at much luss
than actual value; in fact, at not exceeding
60 per cent thereof. It was alleged, besides,
that the method of asseasment followed by
the Board of Valuation waa inconsistent
with the provisions of the statutes of Ken-
tucky, and for that further reason the as-
sessment was Illegal.
A previous suit of tbe samS cSaractei had
been brought by the same plaintiff In the
same court for relief against tbe assessment
1 Bet forth in full in tbe opinion in
Grasne v. Louiaville & Intemrban R. Co. 244
U. a 499, ei U ed. — , 87 Sup. CL Bep. 678.
f uma topic * KBT-NUllBaR la all Ker-Numbared DIceata * Index
,<^,oogic
ST 8UPBBUE COUBI EEFORTBB.
Ooi. Temm,
for tlu jm 1912, In wbich, afUr K bearing
OB motion for prelimiDuy Injunction uul
demurrer to tlie bill, tli« court delivered a
Terj' elftborato opinion, allowing & t«mpa-
tary Injaoction upon condition that plain-
tiff should pay franchits taxes to the atate
and iubordinate taxing diBtricta upon a
valuation of $22,899,200. Louiiville & K.
^ E. Co. T, Bosworth, 208 Fed. 380, 465.
n Following thia precedent, the court, upon
• the filing of'the bill in the present eaie,
allowed a preliminary injunction upon the
payment of taxes, based upon the same
TBluation. He cause proceeded to final
hearing, and the court, having found plain-
tiff to have been subjected to discrimination
by the valuing of other property at approxi-
mately 00 per cent of actual values, but
having overruled the other grounds of re-
lief asserted, applied an equalizing factor
to the valuation of plaintiff's franchise,
with the reeuLt of finding {25,80B,493.S0 to
be the amount at which it was legally
taxable, or ^909,293.00 in excess of the
amount upon which payment was made at
the inception of the suit. Therefore a final
decree was made em'oining defendants from
enforcing the assessment complained of, on
condition that plaintiff should pay taxes,
state and local, on the excess amount
named. 230 Fed. IBl, 232.
Plaintiff appealed to this court upon the
ground that it ought not to be required to
pay franchise taxes upon any amount in
•xoess of (22,890,200. DefendanU took a
crass appeal upon the ground that plaintiff
was entitled to no relief. The eases were
argued together with kindred cases this day
decided, viz., Nos. BIT ft ei8, Greene r.
LoulwlUe & Interurban R. Co. 244 V. 8. 499,
61 L. ed. — , ST Sup. Ct. Bep. 673, and Noe.
612-645, Illinois a R. Co. r. Greene, 244 D.
8. B66, 61 L. ed. — , 87 Sup. Ct. Hep. 897.
There are numerous assignments of e
by each party, but, without specifying
these, the questions raised will be disposed
of in the order of convenience. Of coune,
the Federal jurisdiction, having been in-
voked upon substantial grounds ef Federal
law, extends to the determination of alt
questions involved in the case, whether rest-
ing upon state or Federal law. Siler v,
Louisville & N. R. Co. 213 U. S. 176, ISl, 53
X. ed. 7S3, T57, 29 Sup. Ct. Rep. 4E1; Ohio
Tax Cases, 232 U. S. 576, 688, 58 L. ed. 737,
743, 34 Sup. Ct. Rep. 372.
It may be premised that plaintiff c
and operates a great system of railroads ex-
tending throughout Kentucky and twelve
other states, embracing (in the year In quea-
H tion) roads operated on its own account to
fthe extent of "4,478.61 miles, of which
1,674.47 miles, or 35.15 per cent, were in
Kentucky, and an aggregate of roads owned,
operated, and emtroUed, extending to Jr
007.88 miles, of which 1,SS2.45 milea, or
24.S9 per cent, were in Kentucky. It Is sub-
ject to taxation In Kentucky upon its
tangible property as assessed by the Stats
Railroad Commission, and, in addition, to
taxation, state and local, upon its intangible
property or "franchise" under i 4077, Ky.
Btat. and succeeding sections (set forth be-
low in margin), the valuation to be fixed
by the Board of Valuation and Assessment.
(1) Defendants contend that the District
court was without jurisdiction because the
suit was in effect a suit against the state
of Kentucky. It is said that the sole basis
of a suit to enjoin state officers from the
performance of duties pursuant to a statute
must be that the statute itself is unconsti-
tutional; that, since the statute in ques-
tion here is constitutional, an action may
not be maintained in a court of the United
States (there being no diversity of citizen-
ship) for what is done by subordinate of-
ficers of the state in executing the statute
in an unconstitutional manner; and that
for misconduct of this sort there is no
remedy except in the atate courts. These
contentions are disposed of adversely in
Greene v. Louisville & Interurban R. Co.
supra.
(2) It Is contmded that the plaintiff has
an adequate remedy at law under g 162, Ky.
Stat. This likewise is negatived by the
case just mentioned.
(3) It U urged that, although It be true
that the local assessors in each county as-
sessed other property at lees than its cash
value, plaintiff is not entitled to relief for
this reason if its property was not assessed
at more than its fair cash value, even
though It was assessed at a higher percent-
age than other property. To this the same
answer may be made. The facts found ina
this case bring it within the ruling that, in^
the case last mentioned, was made upon'ad-*
mitted facts, because of the provisions of
the Constitution and laws of the state. Id
this case, as in that, we find it unnecessary
to pass upon the merits of the question
whether a like result would be reached by
the application of the "equal protection"
clause of the 1 4th Amendment.
(4| It is contended that although there
be jurisdiction to enjoin the apportioning of
the assessment among the counties, cities,
and towns for the purpose of local taxation,
it was erroneous to enjoin state taxation
based upon the same assessment. So far
as this is bottomed upon the theory that
the suit is a suit against the state, it is
, disposed of by the decision cited. It is ar-
gued, however, that while this court has
held that in a proper case a bill may be
brought to restrain apportionmsat and oer-
,A_.OOglC
191S.
LOUISVILLS * NASETHILB B. CO. T. GBXBNXL
ttllntloii to the emmties of ■. tax impoMd
by ft itate board in violation of Fsdaral
righta {Fargo v. Hart, 1D3 U. B. 4«>, 4B
L. ed. 761, 24 Sup. Ct. Rep. 408), yet Coul-
ter V. Weir, 62 C. C. A. 420, 127 Fed. 887,
&06, 912,— a cage that arose out of tbe Mune
provisions of the Kentucky statutes that are
here involved, — is an authoritj in opposi-
tion to panting relief against the state
taxes, and that it was approved hj this
court in Coulter t. Louisville k N. B. Co.
198 U. S. 590, 808, 49 L. ed. 615, 617, 28
Sup. Ct. Rep. 342. Wliat was said upon
the subject in the case last mentioned was
not a part of the matter decided, as a refer-
mce to the opinion clearly shours; for the
4lecisiDn in favor of defendants proceeded
upon the ground that the evidence was in-
■uffident to sustain the bill. Coulter v.
Weir, supra, is easily distinguiahabie.
There, the auditor of public account* waa
the sole defendant. Iha circuit court of
appeals, after citing Poindexter v. Qreen-
hovr, 114 U. S. 270, 286-288, 29 L. ed. ISO,
191, 192, 6 Sup. Ct. Rep. 903, 9S2; Reagan
▼. Farmers' Loan & T. Co. 164 U. S. 362,
S90, 38 L. ed. 1014, 1021, 4 Inters. Com.
Rep. S60, 14 Sup. Ct. Rep. 1047 ; Bcott v.
Donald, les U. S. 107, 112, 41 L. «d. 648,
<S3, 17 Sup. Ct. Rep. 262j Smyth v. Ames,
109 V. 8. 486, 518, 42 L. ed. 819, 839, IS
fiup. Ct. Rep. 41S; Fitti v. McGhee, 172
U. S. 5ie, 629, 43 L. ed. 630, 641, IB Sup.
Ct. Rep. 269; and Taylor t. Louisville k
.N. R. Co. 31 C. C. A, 637, 60 U. S. App.
gies, 88 Fed. 300, and quoting from the
• opinion in the Taylor Cue to the effectHhat
a suit against individuals, seelcing to enjoin
them from doing certain acts which they
Msert to be by authority of the state, but
which complainants aver to be without law-
ful authority, is not a suit against the
■tate, and from Fitts t. HcOhee to the effect
that a suit against state officers not holding
any special relation to the particular stat-
Bte alleged to be uneonetitutional, nor
eharged with its enforcement, is a suit mere-
ly to teat the ctmstitutiMtality of a state
statute, and therefore is a suit against the
state, proceeded (p. 006) to sustain the ac-
tion only so far as it sought to enjoin the
defendant from certifying to the oonnty
clerks the assesament complained of. ^e
contrary resnlt reached with respect to
the tax due to the stat« went solely upon the
gronnd that, as to this tax, the auditor had
no act to perform under the statute and no
authority to enforce collection; the court
proceeding to say further (p. 007) : "If the
defendant had been about to take stKne step
nnder color of the law, tending to oomplete
the asseasment, or if he had been authorized
to aelEe property and was about to do so,
than ha was, assuming tlie eaae to be with
the eomplalnanta <m the merlte, abont to
commit a treapaas for which ha would be
individually liable, and In a proper case
equi^ might enjoin his proposed action
upon the ground of hie want of legal author-
ity. But this la not the case made in respect
to the tax due the state, and the bill, so far
as it sought relief against the state tax,
must be dismissed without regard to the
merits." It would eeem that the oourt over-
looked Sg 144, 14G, and 162, Ey. Stat, which
require the auditor to keep account of taxes
collected, keep a correct list of balanoea due
by individuals to the commonwealth, audit
and enter in account all demands payable
at the treasury, report to the attorney gen-
eral all public debtors who fail to render
their accounts at the proper time or to pay
the money in their hands due the oommon*
wealth into the treasury, and grant writtea^
authority to the treasurer to receive mon^jj
*irom public officers or other persons, dm*
to the commonwealth. However, we need
not rest upon this point, sinoe in the present
ease the attorney general and his aasistanta
are joined as parties, and the final decree
under review restrains all ot the defendants
from taking any steps to collect the excess-
ive taxes due to the state or to any of its
sabdivisiona, and from instituting or prose-
cuting any proceedings against the plaintiff,
either by indictment or civil action, becauaa
of any all<^^ delinquency or failure of the
plaintiff to pay taxes upon its franchise on
a valuation above the amount fowtd by the
court to be proper. The decree, with re-
spect to the state aa well aa the local taxes,
is clearly within the anthorlty of Ex part*
Young, 209 U. S. 123, 166, GS h. ed. 714,
727, 13 L.R.A.(N,S.1 932, 2S Sup. Ct Rep.
441, 14 Ann. Gas. 764, where FitU v. Ho-
Ghee, 172 U. 8. 516, 630, 43 L. ed. 630, 641,
IB Sup. Ct. Rep. 800, waa distinguished
upon the ground that in that case no state
officer who was made a party had to do with
the enforcement of the statute alleged to be
unconstitutional.
If what was said In Covltsr t. Loulavina
A: N. R. Co. 1B6 U. S. 6B9, 606, 49 L. cd.
616, 617, 25 Sup. Ct Rep. 342, imports that
an injunction can, under no circumstances,
be awarded with respect to state taxes, it
must be deemed to have been overruled by
Raymond v. Chicago Union Traction Co. 207
U. a £0, 62 L. ed. 7B, 28 Sup. Ct. Rep. 7,
12 Ann. Cas. 757, where the collection of
taxes based upon an unconstitutional assess-
ment was enjoined, a part of these being
state taxes, aa appears by the report, pp.
22, S7.
(6) It la contended by defendants that
the evidence waa Insufficient to warrant the
conclusion of the learned district judge
that 1b fact propM:^ la gantssl in Um
,A_.OOglC
ST 8UFBEMX OOUSI EUPUBTXB.
Oor. Tekh,
Stat* of Xento^ wu qvteniftUcallf nndcr-
▼Alued. A dmilu queation of fact tu in-
Tolved in Coulter v. LauisTille & N. B. Co.
and tliii court (p. 609) held the evidence to
be insufBcient. In the preaent case, beside*
much to the suae effect as that presented
in the Coulter Case, a mau of additional
•vidence iras introduced, including extracts
Sfrom the United States Census Eeport for
the jear 1010; reports of the State Board of
* EquaUiatitHi for the ^eare IBIO, 1911, 1B12,
and 1913; report of the State Tax Commis-
sion of 1913; testimony of a member of the
State Board of Equalization who served In
the years 190S to 1011, incliuivB; affidavits
of nearly 200 ludividoals from 47 counties
In different parts of the state; and much
besides. The evidence la too voluminous to
be adequately reviewed within reasonable
Umita of space, and we content ourselves
with saying that it comprises a body of
olBcial admisaioni and dbect and drcum-
etantial evidence from private and public
■ourcea that are nnimpeached, fully sus-
taining the finding of the trii^ court tiat
the great mass of property in the state, so
far as assessed by the county assessors un-
der the review of the eounty boards of su-
pervisors and the State Board of Equaliza-
tion,— and this embraces all tangible prop-
erty except railroad property and distilled
spirits, — during a period of years prior to
and including the year 1B13, was Inten-
tionally, systematically, and notoriously ss-
sesBcd far below its actual value, and at cer-
tainly not exceeding 60 per cent of its fair
cash value. There Is little to the contrary
except the general presumptions arising from
the statutory duty of atsessors to assess at
fair caeh value and from the oath cuetomar-
■"§ 40TT. (I) Franchise — assesBment of.
—Every railway company or corporation,
. . . also every other corporation, com-
pany or association having or exercistug
any special or excIuBive privilege or fran-
ohiae not allowed by law to natural persons,
or performing any public service, shall, in
addition to the other taxes impoBed on it
by law, annually par a tax on its franchise
to the state, and a local tax thereon to the
county, Incorporated city, town or taxing
district, where its francliise may be exer-
cised. The auditor, treasurer and secretary
of state are hereby constituted a Board of
Valuation and Assessment for flxlng the
value of said franchise, except as to turn-
pike companies, which are provided for in
I 1 [4095] of subdivision 4 of this article.
. . . Ilie auditor shall be chairman of
said board, and shall convene the eaiue from
time to time, as the business of the board
may require. It shall be the duty of the
attorney general, when requested by the
Board of Valuation and Asuessment, to at-
tend said board at it* meetinga and advise
with eame in its prooeedinga.
Uy required vl iudlrldnal taxpayers, and »
large number of stereotyped affidavits made
by former assessors to the effect that they
endeavored to follow the law and assess all
property at its fair cash value, and if any
property was otherwise aseeaaed it was un-
intentional, and not pursuant to any agree-
ment between the assessor and the taxpayer.
In our judgment this does not materially
detract from the convincing effect of plain-
tiff's proofs, ^e evidence is analyzed
briefly in the opinion of the district judge
(230 Fed. 227-231), and nothing more need
be added to his comments upon It.
This disposes of all the points raised by
(8) It is Dontended by plaintiff that tha^
Board of Valuation and Assessment, in aa-g
see sing plaintiff's franchise, ■proceeded upon*
erroneous principles and adopted an im-
proper method, not only In falling ta e^ual-
ixa the assessment so as to make it con-
form to the basis generally adopted by other
assessing officers in aasessing other kinds
of property, but also in failing to follow
the coarse prescribed by the Kentucky stat-
ute; and that with respect to its complaint
in this regard the decree of the district
court gave inadequate relief.
In order to pass upon this contention,
we must consider the nature of the so-called
"franchise tax," the method prescril>od by
the statute for valuing the franchise, the
method that was pursued by the Board, and
the manner In which the district court
dealt with it
The statutory provisions are in g| 4077-^
40S1, Ky. Stat., the material portions ofS
which are set forth in the margin.* *'11>ey*
I 40TB. (2) Corporations to report to
auditor to determine value of franchise.—
In order to determine the value of the fran-
chises mentioned in the next preceding sec-
tion, shall, annually, between the 30th day
of June and the 1st day of October, make
and deliver to the auditor of public accounts
of this state a statement, verified by its
president, cashier, secretary, treasurer, man-
ager, or other chief ofiicer or agent, in
such form as the auditor may prescribe,
showing the following facts, viz.: the name
and principal place of business of the cor-
poration, company or association; the kind
of business engaged in ; the amount of capital
stock, preferred and common; the number
of shares of each; the amount of stock paid
up; the par and real value thereof-, the
highest price at which such stock was sold
at a bona fide sale within twelve months
next before the 30th day of June of tlie
year In which the statement Is required to
he made; the amount of surplus fnnds and
undivided proflta and the value of all other
aesets; the total amount of indebtedness al
principal, the amount of gross or net earn-
,A_.OOglC
Ulfl.
LODIBTILLB * NASEVIZXa X. CO. t. GREENE.
origiii&M in tbt flrst gCDerkl >BEembly tftar
Ui« iww CoiutitutioD, being Sg 1 to 6 of arti-
cle 3 of Ehftp. 103 (Nut. 11, 1892! Ads
1891-1893, p. Z90), which were amended bj
chap. 217 of the eame aeulon ( Jnne 9, 1893,
p. 990), by Act of March 29, 1002 (Acta
1902, chap. 128, pp. 281, 305-309), ud by
Act of March 16, 1906 (Laws 1006, ohap.
£2, pp. 88, 126-130). One of the amend-
meutB, having to do with one of the quea-
tioDB we are to couuder, will be meDtioned
It will be obeeired that the valuea of fran-
chise* (except ai to turnpike companies,
otherwise provided for) are to be dete]>
mined bj the Board of Valuation and Ai-
•esBnieiit, which board, up<Mi a eonalderation
of information fnraiabed to it by the cor-
poration, and from mch other 'evidence as*
it may have, la to "tbc the ralne of the
capital atock of the corporation. . . .
and from the amount thus flied ehBlI deduct
the aaaeasad value of all tangible property
aaaaaBed In thie state, or in the counties
where aituated. The remainder thua found
ahall be the value of ita corporate franchise
subject to taxation aa aforeaaid." It has
been held by the Kentucky court of appeals,
and by this court, that the "capital stock
of the corporation" includes ita entire prop-
erty ot every kind and description, tangible
and intangibly and that what is called
its "corporate franchise" la the intangible
property of the company in Kentucky. Hen-
derun Bridge Co. v. Com. DO Ky. 623, 630,
641, 20 LJLA. 7S, 31 S. W. 486; Henderson
infB or Income, includinx Interest on in
menta, and incomes from all other sources
for twelve months next preceding the
30th day of June of the year in which
the statement la required; Ute amount
and kind of tangible property in tliis
state, and where situated, assessed, or
liable to assessment in this state, and the
fair cash value thereof, estimated at the
price it would bring at a fair voluntary sale,
and such other facta a* the auditor may r»-
9 4079. (3) Value of franchise— how de-
termined— lines extend beyond state or
eounty. — Where the line or lines of any
such corporations, company or association
extend beyond the limits of the state or
eounty, the statement shall, in addition to
the other facts hereinbefore required, show
the length of entire lines operated, owned,
leased or controlled iu this state, and in
each county, incorporated city, town or tax-
ing district, and the entire line operated,
controlled, leased or owned elsewhere. If
the corporation, company or association be
organized under the laws of any other state
or government or organized and ineorpor-
as in this state, the statement shall show
the following facts in addition to the facts
hareinbefore rei^uired: ^e gross and net
Income or earnings received in this state
and ont of this state, on business done In
this state, and the entire gross receipts ot
the corporation, company or association in
this state and elsewhere during the twelve
months next before the 30th day of June
of the year in which the assessment is re-
quired to be made. . . . Provided, That
said Board, from said statement, and from
•uch other evidence as it may have, if such
corporation, company or association be or-
ganized under the laws of this state, shall
fix the value of the capital stock of the cor-
poration, company or association, as pro-
vided in the next succeeding section, snd
from the amount thus flxed shall deduct the
assessed value of all tangible property as-
■essed in this state, or in the counties where
•itoated. The remainder thiu found shall '
37 H. C.— 44.
be the value of its corporate franchise stib'
ject to taxation as aforesaid.
§ 4080. (4) Foreign corporations — fran-
chise— how determined. If the corporation,
company or association be organized under
the laws of any other state or government,
except as provided in the next section, the
Board shaJl Hx the capital stock in thia
state by capitalizing the net income derived
in this state, or it shall fix tlie capital stock
as hereinbefore provided, and will determine
from the amount of the gross receipts of
such corporation, company or association in
this state and elsewhere, the proportion
which the gross receipts of this state, with-
in twelve months next before the 30th day
of June of the year in which the assess-
ments were made, bears to the entire gross
receipts of the company, the same propor-
tion of the value of the entire capital stock
or the capitalizing ot the net earnings in
this state, less the assessed value of the
tangible property assessed, or liable to as*
sessment. In this state, shall be the cor-
rect value ot the corporate franchise of such
corporation, company or association for tax-
ation in this state.
§ 4081. (B) Interstate carrier — franchise
— how flsed. — If the corporation organized
under the laws of this state, or of some
other state government, be a railroad . . .
company or a corporation performing any
other public service, the lines of which ex-
tend beyond the limits of the state, the said
Board will fix the value of the capital stock
as hereinbefore provided, and that propor-
tion of the value of the capital stock which
the length of the lines operated, on-ncd,
leased, or controlled in this state, bears to
the total length of the lines owned, leased
or controlled in this state and elxcnhere,
shall be considered in Axing the value of
the corporate franchise of such corporation
liable for taxation in this state; and such
corporate franchise shall be liable to taxa-
tion in each county, incorporated city, town
or district through or into which such lines
pass, or are operated, in the same propor-
tion that the length of the line In such
coun^, city, town or district bears to the
whole Infth of linaa in this state) . . ,*
A^iOOglC
000
BT 8UPHEUE OOnST REPOBTEB.
Ooi. TXBM,
e Bridge Co. t. Kentock?, 166 TT. S. IGO, 154,
e41 L. ed. 053, 054, 17 Sup. Ct. Rep. CSS;
* Adams £xp. Co* y. Kentucky, 166 U. S. 171,
ISO, 41 L. ed. 060, 063, 17 Bup. Ct. B^.
627; LouiBville Tobacco WarehouH Co. t.
Com. 106 Ky. 165, 167, 57 L.R.A. 33, 40 S.
W. 1060; Marion Nat. Bank v. Burton, 121
Ky. 876, 888, 10 L.B.A.(N.S.) 047, 00 S. W.
044.
Tlie fiudingB of an official body nicb ai
the Board of Valuation and Aswaament,
made — as waa the case here — after a hear-
ing and upon notice to the taxpayer, are
quasi judicial in their character, and are
not to b« est saide or disregarded by the
eourts unless It is made to appear that the
body proceeded upon an erroDeooa prineiplt
•r adopted an improper mode of estimating
the Talue of the franchise, or UDleea frand
appears. Pittsburgh, C. C. ft St. L. R. Co.
r. Backus, 164 U. B, 421, 435, 436, 38 L.
ed. 1031, 1039, 1040, 14 Sup. Ct Rep. 1114;
Chicago, B. 4 Q. R. Co. t. Babcock, 204 U. S.
635, 606, 61 L. ed. 636, 63B, 2T Sup. Ct. Rep.
886. In this case there is no showing of
fraud, the contention being that the Board
departed from the mode prescribed by
the statute. If they did thU, or ]f they
proceeded in disregard of rights secured to
the taxpayer by the state or Federal Con-
Mititution, of course they proceeded upon an
• erroneous principle. RendBrson Bridge Co.
V. Com. 00 Ky. 023, 046, 20 L.R.A. 73, 31
B. W. 486; Hager t, American Surety Co.
121 Ky. 7B], 8O0, OOS. W. 660. It appears
that tiie Board, having received a report
from the plaintiff, and having made a ten-
tative assessment of its franchise for taxa-
tion for the year 1B13, had a hearing upon
the matter in the presence of counsel for
plaintiff, and as a result made up its assess-
ment in a manner summarized hy the dis-
trict court (230 Fed. IBS) as follows:
"The details of the assessment, showing
the manner in which tlie Board arrived at
$45,658,630 as the value of the franchise,
are these: The Board first found the fair
cash value of plaintiff's capital stock, here-
after termed its unit, to be $262,262^66.
This valuation it arrived at t^ capitalizing
at 6 per cent what it took to be plaintiff's
net income from operations on Its own ac-
count for the year ending June 30, 1912, as
of which date the assesEment speaks, less
what it took to be Its net income from cer-
tain property which It took to be nontax-
able. Plaintiff's reports to the Kentucky
Railroad Commissiim and to the Interstate
Commerce Commiasion as of that daie
state plaintiff's net Income for that year to
have been $18,062,906.12. This included
the net income from the operation by plain-
tiff of three railroads, two in and one out
of Kentucky, on aoeount of the owners,
whldi amounted to tl,43S,004. TIm board
deducted this sum from the total, leaving a
balance of (16,613,301.12 of net income
from operations on its own account. It then
deducted from this balance the sum of
$878,147 on account of its net Income from
such nontaxable property. This left a bal-
anes of $16,736,154, which, capitalized at 6
per cent, gave the sum of $202,252,566, at
which it valued the unit. The nontaxable
property, the Income from which was thus
deducted, consisted of stocks in other cor-
porations which owned proper^ in this^
state and which had paid Qi« taxes thereon.g
The deduction was based on*93 4065 and*
4080, Kentucky Statutes, and the eonstmo-
tion thereof by the court of appeals in the
cases of Com. ex rel. McElroy v. Walsh, 133
Ky. 103, 117 8. W. 308, and Com. ex rel.
Hopkins v. Fidelity Trust Co. 147 Ky. 77,
143 S. W. 1037. It then apportioned $92,-
181,766 of this sum to Kentucky. The sum
80 apportioned was 35.15 per cent thereof.
The percentage which it took was the per-
centage which the mileage operated l^
plaintiff in Kentucky on its own account
was of the entire mileage so iterated by
it. The entire mileage so operated by It waa
4,478.61, of which 1,674.41 was in Ken-
tucky. It then added to the sum so appor-
timed $2,408,012, the excess In the valu«
which it to<d[ that the portim of the unit
in Kentucky was over snch mileage propor-
tion of the value thereof. It found this
excess in value to be in the intangible part
of the portion of the unit In Kentucky, and
that in this way : like value of the tangible
part it took to be $177,038,113, and that
of the intangibla $86,214,453. Tlie propor-
tion of the gross Income derived from Ken*
tucky of the entire groaa income it took to
be 38 per cent, or E.8S per cent in excess
of such mileage proportion. It took It that
this showed that the value of tlte portion
of the intangible part of the unit in Ken-
tucky was 2.85 per cent of the value of audi
part, or the sum of $2,408,612, in excess
of such mileage proportion thereof. Add-
ing this sum to such mileage proportion of
the value of the unit, to wit, $92,181,760,
made tlie value of the portion of the unit in
Kentucky $04,650,388. ■ It then reduced
to that of $94,500,000 ss the value.
This reduction is not to be accounted for,
except on the ground that it wanted to
place the value of soeh portion in round
numbers. This lessened the addition to sudi
mileage propcMtion of the value of the
unit on account of the excess in value of
the portion of the intangible part of the
unit in Kentuclcy over such mileage pro-
portion thereof from the sum of $2,408,012 a
to $2,318,244, which latter aum was thsg
•dlfferenoa brtwaen $H,600,000 and $0M8V*
.A^iOOglC
IDI*.
LOUISVILLE ft NASHVILLS B. CO. r. ORKENB.
■91
7H. But tlia Botrd had no •ooner mada
thU reduction than It mada a Inrther reduc-
tlni from thit sum In round nnmben to
anotber Hum, not in round nuntbers, to wit
175,139.402, sa the value of the portio
the unit in Kentucky, and thara It itaTed.
On the aasumptian that thie anm vai
reached b^ reducing from t94,SOO,000, there
la no accounting for how it reached it,
rather than any otiier sum. The only ao-
connt of it which it gare was that it eo
did to be coDBertative, and out of an abun-
dance of c&ntion, to the end that no in-
Jnstlce may be done respondent in arriving
at the value of the corporate franchise of
respondent in this state.' And It noted the
fact that this HUm was leas than BO per
«ent of that nhicb it believes to be tbe fair
eaah value of Kentucky's proportion of the
entire capital stock of respondent.' It then
deducted from this last sum the asBessed
Talne of the tangible property in Kentucky,
to wit, |ZS,&00,772, which left the sum of
C45,e68,a30 OS the value of the franchise.
Such is what the Board did on the face of
PlaintifT being an interstate cKnier whose
lines of railroad extend both within and
without the limits of the state, It comes
within S 4081, Ky. Stat, which requires
that "tbe said board will fix the value of the
capital stock aa hereinbefore provided, and
that proportion of tbe value of the capital
•toclc which the length of tbe lines operated,
owned, leased, or controlled in this state,
bears to the total length of the linee owned,
leaaed or controlled in this state and else-
where, shall be considered in fixing the value
of the corporate franchise of such eorpora-
tton liable for taxation in this state." The
only previous provielon to satisfy the refer-
ence, "will fix the value of the capital stock
at hereinbefore provided," Is the provision
of g 40TS, that the Board shall fix it "from
said statement and from such other evidence
^ as it may have."
g Under this system It Is obvious that there
• are three 'principal steps In the process of
ascertaining tbe value of the intangible
property, taxable in Kentnclcy, of companies
operating lines of railroad extending within
and beyond the limits of tbe state. These
are; (1) The fixing of the value of "the
capital stock of the corporation;" which, as
construed in previous cases, means the total
value of all its net asaete, tangible and in-
tangible, within and without tiie state;
(2) the apportionment to Kentucky; and
(3) tbe elimination of the value of the tan-
gible assets. Whether the second step shall
precede the third, or vice versa, is one of
the matters in dispute.
No specific method being prescribed by Om
•tntttta for fixing the vahis of tka "eipltal
sbx^ of the aiUra tystem, except a r«iiuir»-
ment to the efileet that the Board ahall have
bef<M^ it, with other evidence, a statement
by the eorporation setting forth the kind
of tnulneaa engaged in, the amount of capi-
tal stock, the number of shares, tbe par and
real value thereof, with the highest price
at which it ha* sold recently, the amount of
surplus and undivided profits, the value
of all assets, the total amount of indebted-
ness, the gross and net earnings or income^
the amount and kind of tangible property
within the state, and Its location and fair
cash value. It follows that the particular
method to be pursued in ascertaining from
this and other evidence the aggregate capital
value is left to the sound judgment and dis-
cretion of tbe Board. In such cases thera
are (at least) two recognized methods,
known as the stock-and-bond plan and the
capitalization-of- income plan. In the pres-
ent case the latter waa followed.
(7) Tha application of this method by
the Board la attacked in two respects: first,
in the manner of deducting nontaxable as-
sets, and, second, In the rate of percentage
used in capitaliEing the income. Aa to tha
first point, the insistence la that as the taxn
under consideration is merely an intangible-^
property tax, it results that If'among the*.
assets of the corporation going to make up
ita total capital value there were some that
were nontaxable, It was neoessary to deduct
these before arriving at the taxable capital
It is pointed out that under § 4085, Kj.
Stat., the property of all corporatiiHis is to
be assessed in the name of the corporation,
and "so long aa said corporation pays tlie
tax on all its property of every kind tha
individual stockholders shall not be required
to list their shares in said corporation ;**
the argument being that, to tbe extent that
plaintiff held the stock of other corpora-
tions having property in Kentucky and pay-
ing taxes thereon in that state, this stock in
plaintiff's hands waa nontaxable, and ita
value should have been deducted from tha
total value of ita capital stock previously
ascertained; citing Com. ex rel. Hopkins v.
Fidelity Trust Co. 147 Ky. 77, 84, 143 B. W.
1037. As the record shows, the Board of
Valuation and AsBessment recognised plain-
tiff's right to deduction upon this account,
and for this reason. In applying the capital-
ization-of-income method, deducted from
$16,613,301.12, net income from operated
roads, the sum of $078,147, the net tneoiiM
from nontskxabla securities as reported by
plaintiff to the auditor and tbe Railroad
Commission, taking the balance only, er
$16,736,164, OB the income to be eapitaHied
in order to arrive at the value ot the os-
tire ^stem. Tbe eriticiam la that adoptiag
tUa matkod bad the afleet of dednctiat mif
D,at,z.d-,.'^-.00'^IC
492
ST SUPEEMB CODBT BEPORTBR.
Oct. Tax,
■neh stock in other corporatiou* a» paid
dividendo, whereai plaintiff inBiata that
much of its atodc thus held, although pajiiig
no dividenda, or dividende at a lov rata,
had large intrinsic value hj reastm of the
control it gave over other lines of railroad
and tbe increment it brought to the aggre-
gate income of the company. There was
evidence that these nontaxable securities
amounted to upwards of (30,000,000 in
value, nhereas the capitalization at 6 per
cent ot their income of (878,147 produced
a value of only $14,460,113. In our opinion,
« ft is a BUlGcient answer to this contention
■ to bb; that the Board meretj carried out
the capitalization- of -income plan of valua-
tion, perhaps to its logical extreme, but
certainlj not in a manner that enablea this
court to BBj that thej pursued a fundamen-
tally wrong method.
(3] The second point, the adoption of a
6 per cent intereet rate as the basis of cap-
italization, instead of the higher rate, called
in the testimony the "composite percentage."
reached by taking plaintiff's mileage in each
of the thirteen states in which it operatea,
multiplying this by the legal rate of inter-
est in that state, and dividing tho total of
the products by the total mileage, is, like
the first, a criticism merely of the conclu-
sion of the Board upon a question of tact
which is not properly subject to review
by the courts.
Therefore we concur in the opinion of
the district judge that, upon this record,
the value of the capital stock must he taken
to be at least as great as e2e2,252,63S, the
amount found by the Board.
(&) Tbe Board's next step was to appor-
tion to Kentucky a certain part of this total
value, which, of course, included both tangi-
ble and intangible assets; after which it
procoeiied to deduct the assessed value of
the tangible assets In Eeutucky. Plaintiff
Insists that these steps should have been
reversed; that the Board, having valued the
total capital stock of the company, including
assets tangible and intangible, should first
have deducted the entire tangible assets
wherever situate, and next have aaaigned
a proper portion of the intangible to Ken-
tacky.
What the statute requires In this re-
spect is a question of state law, upon which
we must follow the Kentucky court of ap-
peals if that court has passed upon it. It
is true that the only authority of the
Board was to aseess intangible property;
and, whether it followed the local atatute
or not, it could not, coneistently with the
gjdue process provision of the 14th Amend-
^ment, include, at least as against any for-
• eign corporation, any part of Its* tangible
property lying without the state; and it la
not to b* supposed that the rtatnte intended
to preaerlbe a different rule with respect to
Kentucky corporations, Binc« domestic end
foreign oorporationB are dealt with in tha
same section (g 4081). That section, ao-
cording to its terma, first provides that tha
Board shall "fix the value of the capital
stock aa hereinbefore provided," there being;
as already shown, no provision respecting
the method except that the ascertainment
shall be liased upon the statement of tbe
corporation and such other evidence as the
Board may have. Tbe section proceeds to
declare that "that proportion of the valuo
ot the capital stock which the length of tha
lines (grated, owned, leased, or controlled
in this state, bears to the total length of
tbe line* owned, leased or controlled in thia
state and elsewhere, ahall be eoiwuferAl la
fixing the value of tha corporate franchisa
ot Buch corporation liable for taxation ia
this atate." Referring now to the mode ot
procedure, these words evidently contem-
plate an apportionment, as an aid in reach-
ing the ultimate result (valuation ot fran-
chise taxable in Kentucky) ; but it is an
apportionment of "the value of the capital
stock," which includes both t*ngibles and
intangibles, within and without the etate.
This is not to say that any property without
the state may be taxed. It requires state
mileage valuation to be considered and com-
pared with system mileage valuation, but
it does not make this comparison conclu-
sive. Ab the section was enacted originally,
the words "considered in fixing" were not
contained in it, so that, upon the face of
things, the mileage pro-rate was conclusive
in ascertaining tha atate'a proportion of tha
value of the corporate franchise, — just aa
county and district mileage was and stitl ia
conclusive as to apportionment between
those taxing diatricta. But by the Act of
June 9, 1893, the words "eonaidcred in fix-
ing" were inserted, the necessary effect of
which was to make the relation of state)
*mileage to system mileage a factor thatP
must he considered, but not neceasarily given
conclusive weight. Section 4081 aaya nothing
about deducting the value of tangible prop-
erty, and the preceding sections apeak of
deducting only such tangible property aa ia
located within the state. Indeed, there is
no provlaion requiring the corporation to
report its tangibles outside of the state.
And, if all tangibles were deducted before
apportionment, then the deduction of "aJl
tangible property aasesBed in this atate,™
specifically required by the proviso to J
4079, obviously would result in a double
deduction. The sections are inarUficially
drawn In this as in some other respects.
The district court, upon elaborate consider-
ation in the caae of the 1912 aBnessment (20»
A^^OOglC
Ul«.
LomsvnxE k nashville b. co. t. gbeene.
eu
Fed. 418-429), raubed the eonclualon that
hj the proper conBtruction the entire tbIu*
«f capital stock should be drat apportioned,
haring regard to the mileage, and that
from Kentuckj'i portion of the whole the
aMessed value of the tangiblea within the
■tate should then be deducted; and that the
Eentuck; court ol appeals bad so decided
in Com. t. Covington & C. Bridge Co. 114
Ky. 343, TO B. W. 849.
Plaintiff relies upon two cases, the first
being Adams Exp. Co. v. Kentucky, IM
U. S. 171, ISO, 41 L. ed. 960, 903, 17 Sup.
Ct Rep. 627, where this court, hy Mr. Chief
Justice Fuller, after referring to the statu-
tory provisions now under consideration,
and the use in the several sections of the
words "franchlee" and "corporate fran-
chise," said; "But taking the whole act
tc^ther, and is view of the provisions of
IS 4078-40S1, we agree with the circuit
court that it is evident that Uie word 'fran-
chise' was not employed in a technical
aense, and that the l^alattve Inteation is
plain that the entire property, tangible and
Intangible, . . . should be valued aa an
entirety, the value of the tangible property
be deducted, and the valu* of the intangible
property thus ascertained be taxed under
Sthese provieiong; snd aa to railroad . . .
• Gompanies, whose lines'eztend beyond the
Umita of the state, that their intangible
property should b« assessed on th* basis of
the mileage ^ their lines within and with-
out the state. But from the valuation on
tlie mileage basis the value of all tangible
property is deducted before the taxation is
^plied." The matter of ^portionment
was not there involved, nor what method
«r order was prescribed by the statute; the
question at the moment being whether the
tax was a true {ranchise tax, or merely
a property tax upon intangible property.
Hie significant thing waa that the value of
tangibles waa to be deducted; whether be-
fore or after apportionment was a matter
of no present signiflcance. And the last
sentence quoted, in the expression "valua-
tion on the mileage basis," Indicates an
apportionment of the entire capital stock,
miU for mile, prior to the deduction of
tangibles.
The second case referred to Is Coulter ▼.
Weir, 62 C. C. A. 429, 1ST Fed. SOT, 907,
908, where the etreuit court of appeals for
the sixth circuit. In dealing with the ques-
tion whether the law waa repugnant to
the commerce clause or the 14th Amend-
ment, used this language: "NeithcDT la the
injunction In reference to a deduction of
the value of tangible taxable property from
the gross value of the whole eorparat« prop-
arty limited to BUch aa is situated within
the state of Eentuckr. If tangibla pro^
erty having a situs outside the state be in-
cluded In the valuation of the company's
intangible property, the purpose of the law,
being to tax only intangible property, is de*
feated. We therefore read the act, aa tiie
supreme court seems to have read it in
Adams Bxp. Co. *. Kentucky, as requiring
the deduction of tangible property from
the gross value of all corporate sesetB,
whether such tangible property be within
or without the state." The question of
apportionment, or of the particular method
to be pursued in making the assessment,
waa not involved in this okse, any more^
than in Adams Exp. Co. v. Kentucky, supra.^
'It Is true, as the court said, that if tangible*
property having a situs outside t^ stato
were included in the valuation) the purposa
of the law to tax only intangible property
would be defeated. The aame result would
follow If tangible property within the state
were included in the valuation. But it
does not follow that tangibles, within or
without the state, are to be included in tbo
valuation because included in the appor-
tionment. Any excesa of tangibles, without
or within the state, properly may be givm
its due weight aa a factor modifying the
tentative reeult reached by mere mileage
apportionment. In the absence of special
drcunutances, this is not of itself necea-
sarily an unjust method of apportioning
such a tax. Western U. Teleg. Co. v. Atty.
Gen. 125 U. 8. 630, 662, 663, 31 L. ed. 790,
794, T96, S Sup. a. Rq>. 061; Western U.
Tel^. Co. V. Taggart, 163 U. S. 1, IB, 20,
22, 26, 41 L. ed. 4B, 66-^8, 16 Sup. Ct.
Rep. 10G4.
However, the decision of the Kentucky
court of appeals in the Covington A, C.
Bridge Co. Case, supra, is directly in point,
and, being so, is conclusive upon the ques-
tion of the proper statutory method. There
the company's "capital stock," valued hy
the stock -and-bond method, amounted to
£1,330,000. It owned an interstate bridge,
69 per cent of the length thereof being in
Kentucky, the remainder in Ohio; and it
bad tangible property in Kentucky assesBed
at $452,000. The state of Ohio assessed the
portion of the bridge lying in that state
st $237,984, and the company paid the taxes
thereon. The Kentucky Board of Valua-
tion and Assessment fixed the value of its
entire property or capital stock at (730,349,
and, deducting from this the aagesBment of
tangibles in Kentucky ($42,000), took the
difference, or $278,349, as the frsnchise vaN
uatlon. ^la oompany, insisting that the
correct valuation waa $1S0,48S, paid to Ken-
tucky the tax OR this amoiuit, reserving
the question of its liability for a claimed
balance of $464.84, and of the method or
basis upon which Its (ranehlM should be
A^^OO^IC
17 SUPREME COUBT REPORTER.
Oct. Teu^
• ralued (or*tAxa,tion bj the Bo«rd, to lie
deterniinad bj tlie eourta. The mKtUr was
■ubmitted to the circuit court »• an agreed
e«Be pres«oting two queatioiiB'. (1) wheth-
er the eompuij owed to the commonwealth
the lum of $464.84, or any part thereof,
on account of the tax of its fraschiBe, and
(2) what method or basis should be adopted
b; the State Board of Valuation and As-
■easment for fixing the value of defendant'!
francfaiie for taxation in the commonwealth
of Kentucky. That court held that the
Board had adopted an improper method,
and that the fempany, bj the pafment it
had made, had fulfilled its obli^tion to the
state; reaching this conclusion hf taking
the aggregate market value of its capital
•tock and bonded Indebtedneaa {(1,330,000),
deducting the assessed value of the Ohio
tangibles ($Z37,9S4), and apportioning the
balance of 11,002,016 on the basis of SO
per cent to Kentucky and 41 per cent to
Ohio. From 60 per eent of $1,002,016,
namely $604,280, it deducted the tangible
property aeaessed tn Kentucky, $462,000,
which left a balance of $102,280 as the
valaa of the Kentucky franchise. Hie state
appealed to the court of appeals, where it
insisted that, by the method adopted by the
circuit court, the company was not taxed
npon its entire property. Hie report of
the case states (pp. 348, 340] ; "It Is in-
iisted for the state that the proper way to
arrive at t^B valuation of the franchise is
to take the total value, $1,330,000, and
get 50 per cent of it, which is $762,700, and
that this presents the total of the tangible
property and of the franchise in Kentucky.
Therefore, if we deduct from this total
$782,700, the assesament of the tangible
property in Kentucky, $462,000, the balance,
$330,700, Is the value of the franchise. The
Board fixed the value of the franchise at
$278,340, or considerably less than the re-
sult thus obtained." It was insisted for
the Bridge Company that the circuit court
had followed Henderson Bridge Co, v. Com.
I&e Ky. 623, 2S L.II.A. 73, 31 S. W. 466, but
■ the court of'appeals pointed out that in
that case the Board had followed the method
claimed by the company; that, as the acti<m
was brought by the atate to recover taxes
upon the aaseasment made by the Board,
the state was not In a position to question
the propriety of the asseesment, and that
there was nothing in that case, or in any
subsequent case approving it, to prevent
the Board from adopting a different basis.
To a criticism that the Board had adopted
an erroneous basis In the instant case, the
court conceded the point, arguendo, but sus-
tained the aseessment upon the ground that
it was no more onerous than it would have
been had a ewrect method been adopted;
and, in oonclniion, declared [pp, 350, 351) :
*^e therefore conclude that the basis urged
by appellant [the state] is the proper one
for the aaseaament of Uie property under
the agreed facts, and the Board having fixed
a lower assessment than this would make,
the court erred In not enforcing the colleo-
tion of the tax on the assessment made by
the Board." This was a precise answer
to Qm equally precise contention urged in
behalf of the state, affecting each of the
two questions that ware submitted for de-
cision, and it seems to us that It is binding
upon Qie Federal courts as a oonatruction
of the statute.
This, we repeat, does not necessarily re>
suit in including in the Kentucky franchise
valuation tangible or intangible property
not located within that state. It does per-
mit the Kentucky officials to take into con-
sideration extra-state tangibles, as well as
intangibles, constituting portions of the
unit of which they are valuing a part. This
is permissible, even in applying the statuta
to nonresident corporations. It is settled
that total stock or total assets, situat*
partly within and portly without the state,
but organically related, may be taken into
consideration as a means of reaching the
true cash value of property within the state,
and that the mileage relation may be given^
ita proper weight. State R. Tax Cases, 92?
a. S, 6767608, 23 L. ed, 603, 671; Pullman'sr
Palace Car Co. v. Pennsylvania, 141 U. S,
18, Sa, 3S L. ed. 613, 617, 3 Inters. Com.
Rep. 595, 11 Sup. Ct. Bep. 876; Pittsburgh,
C. C. A St. L. R. Co. *. Backus, 154 U. a
421, 430, 431, 38 L. ed. 1031, 1037, 1038,
14 Sup. Ct. Rep. 1114; WeEt«rn U. Tel^.
Co. T. Taggart, 163 U. S. 1, 26, 27, 41
L. ed. 40, 68, 60, IB Sup. Ct Rep. 1054;
Fargo r. Hart, 103 TJ. S. 400, 400, 48 L. ed.
761, 765, 24 Sup. Ct. Rep. 408.
(10) Plaintiff's next point Is that the
Board took into consideration a mileage
proportion of 86.16 per cent, which was
the ratio heme by the roads operated by
plaintiff within the state of Kentucky to
its totfit operated mileage; whereas it should
have Included the controlled mileage within
and wiUiout the state, which would have
yielded to Kentucky a proportion of only
24.69 per cent. In this the district court
yielded to plaintiff's contention, and, we
think, rightly so. By S 4070, Ky. Stat,
where the company's lines extend beyond
the limits of the state, the report to the
auditor shall, in addition to other facts,
show "the length of entire lines operated,
owned, leased or controlled in this state,
and in each county, incorporated city, town
or taxing district, and the entire line oper-
ated, controlled, leased or owned elsewhere."
And, by I 4081, "tiiat proporti<Mi of tht
.A^iOOglC
1B18
LODISVUXB ft NASHVILLE B. CO. t. aEEEKB.
vKlue of the capital itoclc wliiiib tha lengtb
of the line* operated, owned, leaMd, or
Mutrolied in thia itata bears to the total
langtli of the iinea owned, leased or con-
trolled in thia state and elsewhere, shall
be considered in fixing tha Talue of the cor-
porate franchise of such corporation liable
for taxation in this state." In Com. v.
Louisville t N. R. Co. 14B Ky. 82B, 638,
150 S. W. 37, the very point was considered
bj the court of appeals, which declared;
"If the railroad compsnj owns a majority
of the atock of another company, so that
It n>ay elect ita directors and dictate its
policy, there can be no doubt that it con-
trols it within the meaning of the statute,
and that such other railroad should be in-
clnded in the report required to be made
to the auditor. If required to be reported,
gthe Board of Valuation and Asaesament may
if take them into consideration in fixiug'the
value of the franchise of the controlling
company in the state of Sentucky."
(II) The district court (230 Fed. IBS
«t seq.) acceded to tha contention of the
plaintiff that the action of the Board in
adding at first 12,408,612, and, finally,
$2,318,244, to the Kentucky proportion of
tha value of the unit, on account of the
excess value of the portion of the Kentucky
Intangible* over tha mileage proportion
thereof, was not warranted; baaing Uils de-
ebion upon tha ground that the Board did
not follow the only possible method that
would have determined this excesa with
any certainty, and did not have before it
the data that would have enabled it to do
do so. The point, perhaps. Is covered by
one of defendanta' assignmenta of error; but
no argument haa been addressed to It, and
we express no opinion upon it.
(121 The district court, having found
that the ralue of plaintiff's entire capital
atock must be taken to be at least as much
as $262,262,666, the amount found by the
Board, and that tiie apportionment must be
upon the basis not of the operated mileage
only, but of all mUeage operated, owned,
leased, and controlled within and without
tlie state, was led to the further conclusion,
aa a corollary (230 Fed. 202-204), that the
valuation of the total capital stock should
include an item that the Board had over-
looked, viz,, the value of ao much of the con-
trolled mileage as was not repreaented by
plaintiff's holdings. { Of course. In adopting
tlie capitalization -of -income method of valu-
ation, no account waa taken of the intereats
of otbera than plaintiff in the controlled
roads.) Plaintiff contends that the statute
does not justify this procedure; t^t it is
beyond the power of tha state because It
neulta in taxing proper^ sot belonging to
the plaintiff; and that a more logical and
Gonslstoit method would be to arrive at tba
operated, owned, leased, or oontrolled mile-^
s^ by treating as controlled mileage notg
tha'total, but only a proportion correspond-*
ing to the amount of stock held by plain-
tiff in the controlled roads. The matter Is
not free from doubt; but we concur in tha
view of the district judge that It waa tha
I^ialative intent that, in fixing the per-
centage apportionable to Kentucky and to
be taken into consideration in valuing the
taxable franchise, the whole of the controlled
mileage within and without the state waa to
be treated as a port of the aggregate "capi-
tal stock," not only in fixing the mileage^
but also in fixing the valuation, upon which
the apportionment is to be baaed. It is not
to be supposed that the legislature Intended
to require that, in making the mileage ap-
portionment, which, OS already shown, is
not conclusive but evidential upon the valu-
ation of the taxable franchise, fractional
interests in the controlled roads should b«
taken Into the account, but rather that a
controlled road ahould be treated ttie aamt
aa a rood owned.
In order to avoid a double aaseesment of
the franchise of ao much of the controlled
mileage as was within the state, the court
found it neceaaary to deduct from the Ken-
tucky apportionment of the "coital stock"
the value of the Kentucky portion of tha
controlled mileage (in addition to the aa-
sasasd value of the tangible property thera
situate), since these local francbiaes would
be aeseased against each of the aeparata
organisations. In this view we concur.
But the court was unable to apply the
proper correction to the Board's valuation
(p. 232), because of there being nothing in
the record to show either the value of the
portion of plaintiff's total capital atock not
considered by the Board (that ia, the value
ol the outatanding interests in the controlled
roads), or the value of that portion of the
controlled mileage which waa in Kentucky.
After the court delivered Its opinion to
this effect, and before the entering of the
final decree, plaintiff tendered what is called
a supplemental hill, which the court allowed^,
to be filed, purporting to show all the factsg
reapecting Uie*con trolled roads, and to dem->
onatrate that the reault of adopting the
process indicated by the court's opinion
would be to reduce the aaaeaament below tlia
amount upon which the company already
had paid taxes, and tbie whether the valu-
ation were made an the stock-and-hond plan
or on the capitaiization-of- income plan. It
appears that defendanta never filed any
anawer to thia, and it I* urged that because
of their failure to do ao its allegations must
be taken as confeased. But there is nothing
to show that dafendants wera ordered ta
,A_.OOglC
«gs
S7 BUPHEME COUBT REPOETXR.
Oor. Tkbm,
iDswer; and iii&n&nch ta tiiU Bupplemental
bill waa filed after tlie hearing and decision
of the cauge, snd the record contaio* Dott-
ing to show why ita averments were ignored,
we are not able to aay either that defend-
anta were in the position of admitting ttioae
avermentB, or t^at the court erred in failing
to give effect to them. But at leaat it can
be aaid that plaintiff was not in default for
omitting to introduce evidence at the hear-
ing reapecting theae matters, they not hav-
ing been considered hj the Board, nor aet up
in the original pleadings, nor, lo far as
Appears, deemed by any of the parties to
be material until the court rendered its
decision. Tet, aa will appear presently,
the court in effect decided the ease against
plaintiff becauae there was nothing in the
record to show the facts concerning the
controlled mileage.
(13) In attempting to can; into effect
Its conclusLona upon the facts and the law,
the district court pursued the following
process of reasoning (p. 231): Assuming
$262,252,568 to be the true cash value of
plaintiff's entire capital atock, aa the Board
found it to be, and S4.0DD1 (in the opinion
this is misprinted aa "24.9601") to be the
true percentage of the fair cash value ap-
portionable to Kentucky, and that Ken-
tucky's portion was not of greater value than
the mileage proportion, the fair cash value
of the portion of plaintifl^s capital stocic
^attributable to Kentucky would he (04,760,-
?418.T9. Sixty per cent of'thls— the factor
of equalization— waa taken to be t38,S50,-
251.12. Deducting 129,600,772, the aasesaed
value of the tangible property, would leave
tll,340,47D.27 as the value of the franehiae,
— tliis being leas than half of the amount
upon which payment bad been made.
(There appear to be some additional mia-
prints, or trifling errors of calculation, hut
not BufTicicnt to affect the result.) But
aince the Board bad omitted to include in
the value of the capital atock that intereat
in the controlled mileage not represented by
the stook and bonds owned by plaintiff, and
eince there was nothing in the record to
show the value of this intereat, or the value
of that portion of the controlled mileage
located in Kentucky, the court assumed that
the result of considering these two matters
mifTht be to make the value of the Ken-
tucky portion of plalntifTs capital stock aa
much aa $D2,1S1,7M, the sum at which the
Board fixed it, Instead of $04,760,418.70, the
amount computed by the court. The court
proceeded to say (p. 232) i
"The board has found the fidr cash valne
ftf the portion of plaintiff's unit in this stato
to be 192,181,760, without any exeeas valoe.
They have not gon« at It in the ri|^t way.
But they have in fact founA au^ to b* ita
value. It la poaaibla that, if they had g(»ia
at it In the ri{^t way, they would han
found auch to be the value thereof. . . .
I will therefore diapoae of the «aae on tli«
basis that it waa that much. His is not
such an ezactneas aa I always like to attain,
but the case is one where exactness ia not,
and only approximation ia, attainable.
Taking 60 per cent of $92,181,766 would
give tS5,309,059.60 as the value of tha por-
tion of plaintiff's unit In Kentudcy. I>»-
ducting $29,600,660, tha assessed value of
the tangible property, leaves $25,808,403.60
aa the value of the franchise. And deduct-
ing from this balance $22,899,300, tha
amount on which payment has been made,
leaves $2,900,192.60 on which payment^
should yet be made." g
* This rough-and-ready reasoning had the*
effect of depriving plaintiff of the benefit ot
having controlled mileage taken into coa-
siderafion in making the apportionment,
instead of operated mileage only; and thia
because of the assumption that the aama
valuation reached by Uie Board through an
erroneous method possibly might have been
reached had they pursued a correct method.
We think the court here fell into error. It
being shown that the valuation made by tha
Board waa the result of following a method
substantially erroneous because not in ac-
cordance with the statute, there ia no pre-
sumption that a like valuation would hav«
been reached by fallowing a correct method.
As the difference is so great — more than
$27,000,000— there is a strong preeumption
to the contrary. If any of the facts necea-
sary to enable the court to determine what
result would have been reached by the ap-
plication of a correct method were absent
from the record, the court might have
opened the proofs, in its discretion; other-
wise it should have proceeded to base it*
judgment upon such proofs as already were
in the reoord. Hie result of the method
adopted In making up the decree was to
deprive plaintiff of the relief it was entitled
to, upon the basis of the facta aa found,
because ot a surmise that, upon other facts
not shown by the record, a conclusion sus-
taining the Board's action might have been
reached.
The decree under review, so far aa d*>
fendanta' asslgnmenta of error are concerned,
ahonld he affirmed. Upon plaintiff's aa-
aignments of error. It should be reversed,
and tha cause remanded to the District
Court for further proceedings in conformity
with this opinion.
No. 778, reversed.
No. 779, afBrmed.
,A_.OOglC
I91«.
(*M U. 8. OS)
ILLINOIS CENIHAL RjULBOjU) COM.
PANY, Appt,
ItOBERT L, GREENE, Avditor, Sbemuui
Good paster, Treasurer, Jamei F. Lewis,
S«crctar7 of St&te, Canstituting the
Boiird oi Valuation and Auessment for
the StuU of Kentucky, et al. (No. 642.)
BOBERT L. GEEENE, Auditor, et *1„
Conatitnting the Board of Valuation and
AweismeDt lor the State of Kentackr, et
tiL, Appta,
BOBERT L. GREENE, Auditor, Sherman
Goodpaater, Treasurer, Jamea P. Lewis,
Secretary of State, Constituting the
Board of Valuation and AsseBament for
the State of Kentucky, et aL (No. 644.)
nOBERT L. GREENE, Auditor, et a)..
Constituting the Board □{ Valuation and
AsBeesnient for the State of Kentucky, et
«L, Appta.,
States ^al91(2)— ImnTNirr fbou Suit-
Suit AOAiKST State Oiticebs— Bnjoik-
ma Ilixoai. Taxes.
1. State officers charged with the doty
«f enforcing the tax laws of the state may
lie enjoined by a Federal court of equity
from taking steps looking to the enforce-
nent of itate and local taxes upon the In-
tangible property of a public service cor-
poration assessed under state authority,
wbich are asserted to violate the Federal
Constitution because of a discrimination in
^e valuation of the property upon which
the taxes are based, arising out of sys-
tematic underTaloation of other taxable
jirc^erty, although the state laws under the
•anctjon of which tbe officers assumed to
act in making the assessment do not oon*
template any unlawful discrimination.
ea. NotSL— Pot other caaM. ■•• Btata^ Cwt.
1 in-l
Taxatioh «=>We(S) — IlBnBAiKiNa Ii.'
ixoAi, Taxation — Rotxar at Law,
2. A public serrice eorporatlon may
«ne in equity to restrain state officers from
taking steps looking to the enforcement of
certain elate and local so-called franchise
taxes on the around of discrimination in
valuation of the intangible property upon
vhich such taxes are based, notwithstand-
ing the remedy alTorded by Ky. Stat, g 162,
-directing tlie state auditor to refund taxes
unlawfully collected, such remedy being in-
adequate to prevent equitahle relief for
two reasons; (a) by the decisions of the
Eentucky courts tliis section is confined to
•eases where the taxes paid were wholly
-without warrant in law, or based upon a
ILLINOIS G. R. CO. v. aRKBNE.
mistake as to Ike rata of taxation upon
the amount asBesaed; (b) the bills deal witli
both state and local taxes, while this sec-
tion applies to state taxea alone.
[Gd. Nota.— [>^ oUwr iwwia. mm Taxation,
CuiL DIr I list.]
Taxation «=360e<^ — Bxstbainiho 11*
LEOAL Taxation— Ukeqdai. Absebeuent.
3. The requirement of Ky. Const. S 172,
that all property "shall be assessed for
taxation at its fair cash value, estimated
et the price it would bring at a fair volun-
tas sale," will not prevent injunctive re-
lief against steps looking to tiie enforce-
ment of certain state and local so-called
franchise taxes based upon an assessment
of the intangible property of a publio serv-
ice corporation by the Stats Board of Val*
nation and Assesement at not more than
its fair cash value, where the local assess-
ing officers charged with valuing other
classes of property systematically under-
value such property, since to apply to one
class of property uie standard of fair cash
value, systematically departed from with
respect to other olasses of property, would
frustrate the principal object of that aeo-
tion, which, in view of tiie provisions of
gS 171 and 174, requiring uniformity of
taxation in proportion to value, and an
identical rate as between corporate and
individual property, must be deemed to be
equal taxation.
[Ed, Note.— For other eaaan^ ■•* Tcxatlei,
Cent. Dls. I 1B4-1
Taxation ^3606(5) — REETRAiNiira StaTI
Taxation — Ineqdautt or VALDAnotr.
4. State aa well as local ao-ealled fran-
chise tazea based upon an assessment of
the intangible property of a public servico
corporation made by the State Board of
Valuation and Assessment may be enjoined
by a Federal court for discrimlnsttou arising
out of systematic undervaluation of other
taxable property, where the proper state
ofiicers charged with the enforcement of Um
laws of the state are made parties.
1. Note.— For cU»r cams, bm Taxation,
. Die I 1134.1
Courts *= 366(8)— Fed bral Oodbts— Fol-
LowiNo Decibiohb or Statx Courtb—
Method of Vauation tob Tax Pcbpoo-
Ea — iNTAKOiBix Peopebtt or IntKI'
state Railway Ooupaht.
6. Federal courU will f<41ow the ded*
■ion of the highest state court of Kentuclcy
that Ky. Stat. gS 4077-4081, governing tlio
valuation of the Intangible property of an
interstate railway company for tax pur-
poses, properly construed, require first an
apportionment to Kentudty of the proper
share of the entire value of the capital
stock, having regard to the relation of state
mileage to system mileage, followed by a
deduction from the state's proportion of
the capital stock value of the assessed value
of the company's t&ngihle property within
the state, rather than a deduction of the
total tangible property In and out of tha
atata from the total capital stock value ha-
tore apportionment to the state.
[Bd. Note.— For otlier cases, ss* Courts, Otat.
DIE. i •<1.]
^=>Far other cu«
M ume topic A KBT-NUHBER Id all Ker-Nimiber*4 Dlasata
'■ewogic
ST SUFREUE COUBT BEPORTin.
Oct. 1
Taxitioi) #=»4a3(4) — Review or Judo-
KEHT OF OpnCIAL BODT — Vil-CATIOR
or CUriiAi, Stock for Tax PtTKroHSB,
6. No lundamentallf wrong principle
WSB loTolved in th« deelilon dj ft HtH,tc
board, irhen flzing the TKlne of the c&pital
■took of m railway companj for tuc pur-
poBCS, eoufonnablv to Kf. Stat gS 4077-
4081, M to wbetber it ahould be valued on
the capitalization -of -income or on the atock-
aod-bond plan, or, if the former, oa to what
rate of interest ahould be lued In capitaliz-
ing, or how many years' earnings Bhould be
considered, or aa to what waj in fact the
amount of the npt Income for a given year,
or, if the stock -and -bond plan were adopted,
as to what was the value of the stook and
bonds, but upon thia and similar matters
the action of the Board, in the absence of
fraud, is binding upon the courts.
[Ed. Not*.— For oUwr caica, ■•• Ttzotton,
0«Dt. Dig. I g».]
Taxation «=>ie6— Pboputt or FosEian
OoKPoBATioN — Pbopobttoit or LdOAi.
Value to Whole or Stktbm.
7. A state cannot tax the property of
tt foreign interstate railway company out-
■Ide of ita jurisdictloD, and although the
faot that the property within the state is
part of a system and haa its actual uses
only tn connection with other parts of the
system may be considered by the state in
taxing that portion of the ayatcm within
Its bordero, the notion of organio unity
must not be made the means of unlawfully
taxing property without the state.
[Bd. NoU.— For othar cum, aa* Taxatton,
Cent. Dls. || US, IM.]
Taxatiok 4=3611(2) — REeTKAiNino Etf-
roBcsMSNT — Scope or Heasiho— Con-
TKNTiOM Hade too Late.
8. The refusal of the trial court to
consider a contention that if certain treas-
ury securities held by a foreign interatate
railway corporation be taken as a part of
its capital stock when valuing its intangible
property for domestic taxation, then, since
such securities represent a controlling in-
terest in large lines of railway outside the
state, the apportionment of value to the
etate should take the mileage of these con-
trolled lines into account, is not an abuse
of discretion where the point was first
made on a petition for rehearing and waa
Inconsistent with the averments of the
original bills respecting corporate mileage,
Mid with the averments in an amended bill
that the treasury securities in qneation had
no connection with the bueinesa of trans-
portation carried on by the complaining
railway company, and that none of auch
securities covered or represented the physi-
cal railroads or other properties operated
by it
[Ed. Note.— For oCbar cawi, aa* Taxation,
Cant. Die 11 1216, IIU.]
[Noe. 642, 643, 044. and 645.]
APPEALS and CROSS APPEALS tnm
the Diatrict Court of United States for
the Eaaf«m Diatrict of Kentucky to review
decrees enjoining, upon certain condition^
the enforcement of oertain franchise tax
aasesamenta made against a foreign inter-
atsts railway eompany. AfSrmed. 1
See aoms case below, 20& Fed. 46S.
The facta are stated In tfas opinion.
Mr. Marvel Mills liogtai. Attorney Gen-
eral of Eentucky, and Messrs. John Ki.
Rich, Charles Carroll, and Charles H.
Morris for Robert L. Qreene et al.
Messrs. Blewett Ijee, Edmand F. Tra-
bne, Robert V. Fletcher, John C. Doolan,
and Atilla Coi, Jr., for th« IlUnoIs Central
Railroad Company. .
* Hr. Justice Pitney delivered the op!n->
ton of the court:
These are app«als and crosa appeals frons
two final decrees of the diatrict court en-
joining (upon oertain conditions) the en-
forcement of franchise tax assessments for
the respective years 1912 and 1B13, mode
against the Illinois Central Railroad Com-
pany (plaintiff below in each case) hj Henr^
HL Bosworth and others, constituting the
Board of Valuation and Assessment of
the State of Kentucky, who were among th*
original defendants, and to whose offices
the cross appellants Robert L. Greene and
others succeeded pending the suits, and wer*
thereupon brought in as parties defendant.
Plaintiff being an Illinois corporation, the
Federal jurisdiction waa invoked upon tb«
ground of diversity of citiiensbip, and also
of alleged infringement of plaintiff's rights
under the due process and equal protection
provisions of the I4th Amendment; the oa-
aeasmenta being attacked as having been
made by the Board in a manner not in ac-
cordance with the state law, as including
in the valuation property not within tho
state, contrary to the due process clause,
and as being ba^ed upon a discriminatory^
rule of valuation as compared with others
property in the state, and thus* amoimting*
to a denial of the equal protection of the
laws. The equity jurisdiction was invoked
ui>on the usual grounds. The pleadings are
Involved, and no attempt will be made to
summarise them. In the case relating to
the 1912 assessment, tbey differ somewhat
from those in the case relating to the as-
sessment for the following year; but tbs
two cases were consolidated for the pur-
poses of final hearing. They resulted in
1 Leava granted to present petition for
rehearing within sixty days, on motion id
Mr. Edmund F. Trabus for the Illinois Cen-
tral Railroad Company.
June 11, 1017.
T-NDUBER In all Ksr-NumbwM Dlcaau A Indsiw
A^iOOglC
leu.
ILLINOIS C. B. CO. T. ORBEinL
decreee gnuitinK relief to Um plaintiff to
tbe extent of equftlization with the buia
«f asBesameDt euatomaritj adopted bj bb-
eeseing officers with respect to other prop-
erty in the state, and denying relief upon
the other grounds of complaint. Plaintiff
appealed to this court in both caiee upon
the ground that it was entitled to more
ample relief; defendants took croM appeals
upon the ground that no relief ought to have
been granted.
The cases were heard here togetfaer with
aeveral cognate cases, this dajr decided,
Tic.i Nos. ei7 and 618, Greene t. Lonia-
Tille & Interurban R. Co. 244 U. S. 499, ftl
L. ed. — ,37 Sup. CL Hep. 673, and Kos.
778 and 779. LouiivUle i N, R. Co. t.
Greene, 244 U. S. 622, 61 L. ed. — , 37 Sup.
Ct. Rep. 083.
The salient facte of the present cases
are as follows: During the two years perti-
nent to the controversy, plaintilT operated
a system of railroads extending throughout
the state of Kentucky and ten other states,
having, according to the avermenta con-
tained in the bills of complaint and the
proofs apon which the cases wei'e heard,
a total mileage owned, operated, leased, or
eoDtrolisd amounting to 4,650.64, of which
663.79 miles, or 12.3 per cent, were in Ken-
tucky. For the year 1912, the Board of
Valuation and Assessment fixed plaintifTs
capital stock valuation for the state of Ken-
tucky at (27,124,240, and deducted from this
the tangible property assessment made by
the Railroad Commission, (12,377,383, leav-
ing the franchise assessment $14,740,857.
SThe district court granted a restraining or-
■ der, followed by a preliminary 'injunction,
conditioned that plaintiff should pay taxes,
state and local, on a valuation of $a,618,SBS
(209 Fed. 466), and eventuaUy made a final
decree enjoining the enforcement of the as-
•eesment, conditioned upon plaintiff's pay-
ing taxes upon an additional valuation of
91^7,212, or $7,965,797 in all.
For the year 1913, the capital stock value
fixed for Kentucky was 123,670,180, the as-
sessed value of tangible property S12,4TS,-
903, which, being deducted, left 111^00,277
as the franchise valuation. The court
granted a restraining order upon payment
of taxes on an assessment of $6,000,000, fol-
lowed this with a temporary injunction
upon the same terms, and made a final de-
STM granting a permanent injunction upon
oondition of the payment of taxes upon $2,-
161,067 in addition to the $6,000,000 upon
which taxes had been paid uudsr the order
for preliminary in junction.
With respect to three of the questions
raised by defendants herein; (a) that the
suits are not maintainable because in ef-
fect suits against the state; (b) that plain-
tiff has an adequate remedy at law under
f 162, Kentucky Sutute*; and (c) tha*:
plaintiff la not entitled to relief by w*y
of equalisation because of the undervalua-
tion of property In general by the local as-
sessors; these cases, like the Louisville Jt
Nashville R. Co. Cases, are controUed by
the deciaion in Greene v. Louisville & Inter-
urban R. Co. supra. Upon the question of
the suflSeicncy of the proofs to warrant the
conclusion of the district court as to tha
general, systematic, and notorious under-
valuation of property in Kentucky by the
assessing officers for purposes of taxation,
and a* to the ratio of such undervaluation,
the present cases are indistinguishable from
the Louisville & Nashville R. Co. Cases,
supra, and are controlled by onr decision
therein. Upon the point that the jurisdic-
tion of the court extends to enjoining the
collection of illegal taxes, whether assessed^
for state or for local* purposes, the present*
cases are controlled by the decision in the
Louisville A Nashville R. Co. cases.
This disposes of all assignments of error
filed by the cross appellants (defendants
In these cases, as In those last mentioned,
it is eamestty insisted by plaintiff that
the district court erred in holding that th»
Kentucky statutes, properly construed, re-
quire first an apportionment of a proper
share of the total "capital stock" value to
Kentucky, fallowed by a deduction from
Kentucky's proportion thereof of the value
of its tangible property in the state, instead
of holding that the total tangible property
in and out of Kentucky should first b« de-
ducted from the total capital stock valua
before apportionment to tbe state. W*
need only repeat what was said in the
Louisville & Nashville Cases, that this ia a
queetioD of state law that has been definite-
ly passed upon by the Kentucky court of
appeals in Com. v. Covington k C. Bridgs
Co. 114 Ky. 343, whose decision the diatriet
court properly followed.
We come to questions peculiar to tbe
present cases.
For the year 1912 the Board of Valuation
and Assessment made a preliminary assess-
ment of tbe franchise at $21,600,000, of
which notice was given to plaintiff, and,
after a bearing, finally assessed the fran-
chise at $14,746,867,— a result reached, as
already stated, by taking Kentucky "capital
stock" at $27,124,240, and deducting the
tangible property assessment of $12,377,383.
In granting tbe preliminary injunction (209
Fed. 465), the court, deeming that the Board
had found the fair cash value of the portion
of plaintiff's capital stock in the state to be
$27,124,340, equalized this with the under-
valuation of other property in the state on
a basis of 70 per cent in order to arrive at
a proper Taluation of the frandiise for tba
A-iOOgIC
Sr 8UFREHX COURT BEPORTEE.
OOT. TBuc,
pnrpOfles of a temporuy injunction. Dpoi
tbe final bearing, the court reached the coo
geluaion that the valuation of t27,124,24(
• waa itself the result of an •equalization by
the Board at 80 per cent of what thej had
found to be the fair caah value of the
capital stock In Kentucky; that ia to say,
that they had found the fair caih value to
be {33, SOS ,300. Having concluded that
equalization should he made upon the baaia
of 60 per cent, the court applied this per-
centage to the $33,906,300, making the
equalized capital stock value (20,343,1 ~
deducting from which the asseseed value of
the Ungiblei, J12,377,383, left $7,985,797
as the value of the franchise. Plaintiff con-
tends that there waa no sufficient evidence
to support the conclusion that the Board'
valuation of $27,124,240 was the result of
an SO per cent equalization; but the con-
tention is clearly unfounded.
There is a sintilar contention, equally un-
founded, with respect to the mode in which
the district court applied the 60 per cent
equalization factor to the 1013 valuation.
As to the mode in which the Board ar-
rived at a capital stock valuation for the
entire system, and the mode in which the
Kentucky apportionment was arrived at,
several contentions are made by plaintiff
besides the one of which we already have
disposed. They are: (a) that when the
Board capitalized earnings aa an index
value they took 6 per cent as a basis instead
of li or 8 per cent, either of which i* said
to be a more proper rate upon the ground
that, because of annual unproductive items
of expense, amounting to nearly or quite 2
per cent of plaintiff's capitalization, the
higher rate is necesaary in order to yield
a net 6 per cent return upon the invest-
ment; (h) that when the stock -and -bond
method was employed as an index to value
the highest instead of the average market
prices were employed; (e) that in capitaliz-
ing earnings gross income was used, al-
thooG'h it included income from investments
Id the company's treasury, instead of net
^operating income, which, it is Insisted, is
gthe proper factor; (d) that plaintiff in each
• year had in its*treasury, at its principal of-
fice without ths state, large amounts of in-
vestment securities that improperly were in-
cluded in the sum found as the value of its
aggregate capital atock and apportioned in
part to Kentucky; and (e) that plaintiff
owned large and costly terminals at Chi-
cago, New Orleans, Memphis, and elsewhere
outside of Kentucky, causing a great excess
value, mile for mile, of plaintiff's lines out-
side the state as compared with those in-
side, and that this excess value was not
eliminated either before or after the ap-
portionment to Kentucky.
Tlie first three pointa relate to valuation,
the last two to apportionment. The district
court properly held that the action of the
Board must be sustained unless it waa made
t« appear that they had adopted a funda-
mentally wrong principle, or had been guilty
of fraud. It held further, that no funda-
mentally wrong principle waa involved in
determining whether such a railroad system
should be valued on the eapitalization-of-
income or on the stock-snd-bond plan; or.
If the former, what rate of interest should
be used In capitalizing, or how many years*
earnings should be considered, or what wa«
in fact the amount of net income for »
given year; or. If the stock-and-bond plan
was adopted, what was the value of the
stock and bonds; and that on these and
similar matters the action of the Board, in
the absence of fraud, was binding upon the
court. In this we concur.
The claim for an allowance by reason of
the treasury secnritiea and the terminals
situate in other statM is based upon the
principle laid down in Fargo v. Hart, 103
U. S. 490. 499, 48 L. ed. 781, 785, 24 Sup.
Ct. Rep. 408, and simitar cases, to whicli
we adhere, that a state cannot tax property
outaide of Ita jurisdiction, belon^ng to
persons domiciled elsewhere, and that al-
thou(^ the fact that property is pavt of «
system and has its actual uses only in con-
nection with other parts of the system may
he considered by the state in taxing thatta
portion of the system which is within itaS
borders, yet the notion of* organic unity"
must not be made the means of unlawfully
taxing property without the state.
As to the terminals, the district court
held that since it did not appear but that
the Board made due allowance on account
of them, it must be presumed that they did
make such an allowance. Ae t« the tieas-
nry securities, the court held that plaintiff
had not made an adequate showing to the
Board of Valuation and Assessment; that
it did not appear hut that the Board had
given proper consideration to them; anil
that plaintiff had not put the court in pos-
session of the evidence upon which to de-
termine whether the securities were a part
of ita "unit," or why the securities were held
by plaintiff instead of being distributed to
the stockholders, and that the case of
Coulter V. Weir, 62 Q C. A. 429, 127 Fed.
897, 909-011, did not apply because ther*
the property in question had been placed in
the hands of trustees for the benefit of
stockholders. Upon petitions for rehear-
plaintiff insisted that if the treasury
irities were to be taken as a part of thfr
unit, then, since these securities represented
a coDtroUing interest in certain large line*
of railroad lying outaide of Kentucky (the-
,A_i00gle
M16.
DABNXLL T. EDWAHDS.
Centtml of Georgia, tli* Tuoo ft UbsiaiippI
Valley, uid the Iiidiui&polis SouthBin
■jrstemB), the apportionment Bhould t^ka
the mileage of these controlled linea into a«-
count, which would have yielded a total
mileage of all liaea amounting to 7,B62.0E,
and Kentuckj mileage 660.49, or only TJS
per cent for the year upon which the 191S
aasessment waa ba^ed, and a somewhat
■mailer |>ereeatage for the following year.
To this the couit responded that the con-
tention cams too late, and it cumot he aald
that thii waa an nnTeaaanabie view, or
showed an abuae of discretion. In addition
to the aTermente reapecting comparative
mileage contained in the original bills, it
was distinctly stated in an amended bill in
the case pertaining to the 1912 asaesiment
Sthat the treaaury securities in question bad
■ not "any connectioD* whatever with the hual-
neBB of transportation carried on by com-
plainant, and that aoM of aaid stocks,
bonds, or other properties covered or repre-
sented the physical railroads or other prop-
ertiea operated by complainant.'
In criticism of the conclusions of the
court upon these and some other points, a
most elaborate argument it aubmitted; but
we see no sufficient gronnd for disturbing
the decision.
Decrees alRnned.
Mr. JuBtice Holmes, Mr. Jnatiee Bran-
defa, and Mr. Justice Clarke dissent in
Nos. 643 and B45. In Nos. 642 and S44
they concur ia the result.
JL J. DARNELL, Appt,
GEORGE R. EDWARDS, F. H. Sheppard,
end W. B. Wilson, Constituting the Mis-
siaaippl Railroad Commiasion.
Cabbiebs 4=»12(5) — OovERiniENT RsGin^-
TioN OF Rates— GonriBCATioiT — Cbaboc
AOAinsT OpEKATina Bxvehqi.
I. One ' twentieth of the amonut ex-
pended hy the owner of a railway in the
eonatruction of the road eannot be charged
against annual operating rerenue in deter-
mining whether rates fixed under state au-
thority are conllscatory, as not yield-
ing a proper return, merely because of
a contract whereby the ownership of the
road was to be transferred at the end of
twenty years to a connecting railroad with-
out payment of any purchase prices
' [BU. Note.— ror otkar eaisi^ lae
.- >18(Q — Bniennia Bailwaz
Baivs— Doubt.
2. The enforcement of railway rates
fixed under state authority will not be en-
joined as being omflseatory, where the eri-
dance tending ta show that they wera sat
remunerative, while baaed upon actual ex-
perience in the operation of the road, rs-
lates only to a brief period when eonditiona
were abnormal, and there has been no seri-
oua effort to develop traffic along the line
of the road from property other than that
owned by the owner of the railway.
[Btd. SatB.-~-VoT other casst. sa* Carrtars,
Cent. Sic li U, U-U. iO, ».]
Oabsiebs ^3l8<6) — En JO IN I If D Railwat
Batis— DiBKiBaAi, Without Pbejudiok.
3. Tht dismiasal of a hill which secka
to enjoin the enforcement of railway ratea
fixed under state autboritj ee being con-
fiscatory, in advance of sumcient actual ex<
perience under normal conditions, should
1m without prejudice to another suit if, after
a full and lair test, the rates shall bo found
to be confiscatory.
rsd. Note.— Tor otber cuei, see Carrier^
Cent. Dlf. il 13. IC-IS, 20, 11.]
[No. 216.]
APPEAL from the District Court of the
United SUtes for the Southern District
of Mississippi to review a decree dismissing
the bill in a suit to enjoin the enforcement
of railway rates fixed under state authority,
as being eonflscatory. ModiBed by provid-
ing that the dismissal of the bill shall ha
without prejadic^ and, as ao modified, af-
See same case below, on motion for tem-
porary injunction, 209 Fed. 09.
The facts are stated in the opinion.
Messrs. Roger Montgomery and Wil-
liam P. Metcalf for appellant
Messrs. Jamea N. Flowers, J. B. Harris
Jamas Stone, Qeorge H. Bthridfe, AasC.
Atty. Oen., W. B. Woodik and i. M. Euy-
kendatl, for avptUees. g
•Mr. Justice Pitney delivered the opia-?
Ion of the court:
Appellant filed his bill In the district
court against the members of the Missis-
sippi Railroad Commission, an administra-
tlva body having the usual powers, in which
he sought relief by injunction against an
order prescribing maximum rates on logs in
carload lots transported in intrastate com-
merce, upon a railroad operated by him;
the ground of hia complaint being that the
rates were ao low aa to be confiscatory and^
therefore violative of the due process o^
law provision of the 14th*Amendment. The"
court refused a preliminary injunction {209
Fed. 99), and, upon final hearing, dismisaed
the hill. The caae Is brought here by direct
appeal because of the constitutional ques-
tion, under % 238, Judicial Code [36 Stat.
at h. 1167. chap. 231, Comp. Stat. 1910.
I ISU].
Iba railroad In queatioB is known as tlw
.■ topic A KBT-KUKBaa la aU Kar-NuBb«tea DlfMta A ladnai ) i
.gic
702
S7 SUFBEUE OOUBT BXPOBTEB.
Oot. Tnof,
BatcBville SontbneatOTn, and eitenda from |
» junction with the lUinoiB Central at
BatesTille for a distance of about 17 miles
through a timber countrj, its entire line be-
ing witbin the state of Migsiasippi, It was
built jointly by appeiUnt and the Illinois
Central Bailroad Companj, under a con'
tract pursuant to which be disbursed ap-
proximately $140,000 and the eompanj ap-
proximately $BB,0OO. The contract was
made in IBIO, and bj its terms Darnell was
to maintain and operate the road for twentjr
years, tlie company to pay blm for main-
taining it {143 per mile per annum, and the
road was to become the property of the com-
pany at the end of twenty years without
further payment; the agreement, however,
being subject to termination by the com-
pany prior to the expiration of the twenty
years upon speciBed terms. The building of
the road was commenced about June, 1911.
Darnell began operating it aa a common
carrier in March, 1912, but its construction
was not finally completed untti about the
middle of June, 1814.
The road is of standard gauge and eon-
■tructioD, ballasted, and built in a first-
alass manner. Its traffic consista almost
wholly of Hhipments of logs in carload lots
from points along tlia line to the terminus
at BateBville.
Pending the eonstmetlon of the road, the
Bateaville Southwestern Bailroad Company
was organized as a corporation to take over
the property, but the road remained in the
hands of Darnell as lessee. In April, 1Q12,
he established and promulgated a tariff pro-
Tiding a uniform rate for freight on logs
In carload lots, with a minimum of 4,600
feet, regardless of the Idnd or character of
^tbe timber; which was, for 10 miles and
Ponder, (2.60 per thousand 'feet; 10 to 15
tniles, $3.3G per thousand; IG to 20 mites,
$3.90 per thousand. Complaint having been
made to the Mississippi Bailroad Commis-
sion, by citizens interested in the logging
business, that these rates were extortionate
unjust, and confiscatory, a hearing was had,
and, as a result, the Commlselon, in July,
lOlS, made an order reducing the rates
nesrlj 50 per cent on oak, aah and hickory,
and more then 60 per cent on other kloda of
logs.
It appears that at the time of the eon-
struction of the railroad Darnell individu-
ally was the owner of a large amount (at
the time of the hearing he owned 19,000
acres) of timber land in the country through
wbicli the road was projected, and that this
furnished the reason for his interest in its
construction and operation. At the same
time he owned the principal part of the
stock of R. J. Darnell, Incorporated, a lum-
l>er<B;)llJng corporation; but iMtwem that
time and tha tima of the hearing tha bulk
of the stock had paased into the handa of
his sons, he still remaining president uf the
company, and having sold to it the timber
on the lands owned by him, the company
agreeing t« cut It, hava it hauled, and load-
ed <Hi the cars, and to pay him a fixed
amount per stump.
The bill of complaint showed groas re-
ceipts from the operation of the railroad
for the year ending June 30, 1013, amount-
ing to $16,6S3.01, and operating expensea
$4,208.20, leaving net earnings of 911,2SS.S1.
Against this, however, complainant charged
a* an annual rental $8,133.30, this being
%a ol $102,667.60, then stated to be th«
amount invested by him In the oonstruo-
tion of the road. Deducting this ao-cailed
rental charge left only $3,123.42, or lesa
than 2 per cent on the sum alleged to have
been expended by complainant These fig-
ures were the result of the ratea established
by him; and it was alleged that at tlia
much lower rates established by the Commis-
sion the road would yield no return above^
operating expenses. S
* The bill was filed in September, 1013, tha*
Commission's rates not having aa yet tieeii
put into effeot. At the preliminary hear-
ing the district couH held (209 Fed. 09)
that upon the showing then made it would
not interfere with the Commiaslon'B ratea,
at Isaat until flnsl hearini; thus affordinf
a period for experiment as to whether new
business would be developed in volume snfil-
cient to make those rates remimerative.
Upon the final bearing, evidence having
been submitted by l>ath sides, the court's
decree was to the effect that the ratea as-
tablished by the Commission were reason-
able and should be enforced.
In this court appellant insists, firsts that
the district court erred in holding that lie
was not entitled to charge against the an-
nual operating revenue ^ of the amount
expended by him in the construction of the
road. We are clear that this contention is
untenable. In determining whether ratea
are confiscatory because not yielding a prop-
er return, the basis of caleulati<»i is the fair
value of the property used in the service
of the public. Smyth r. Ames, 199 U. 8.
460, 646, 42 L. ed. SIO, S4S, 18 Sup. Ct.
Bep. 418: Minnesota Bate Cases (Simpson
v. Shepard) 230 U. 8. 3S2, 434, 67 L. ed.
1611, 1556, 48 L.BjI.(N.8.) 1161, 33 Sup.
Ct. Bep. 720, Ann. Cas. 1916A, 18. The
hypothetical annual payments of %o °' ^^
cost of the road to Darnell were not a
proper rant charge, and bore no relation to
the actual value of the property. Iliey aroae
out of the contractual arrangemmt betweoi
Darnell and the Illinois Central, and were
in the nature of an amortization charge t«
,A_.OOglC
uu.
80UTHBBH K. CO. t. FUCKBTT;
703
telu aceonnt of Um dlalnlihiiig InterMt In
the road. But, apon tliftt theoiy, ths lu-
taraat ot the lUinoli Central InereaMd In
value \ij aa much a* that of Darnell do-
eroaaed. In any aipect, the tranaference of
hU interest to the Illinoia Central, and anj
charge on that account, made by him for
purpoaea of hia own bookkeeping, had no
proper relation to the question of the value
«t the property, and hanee vers of no cob*
aern to the public
$ It ia iaristed that npon the proofa, and
f«Q)ecia1l7 by'actual experiment, the rntet
•stabllihed by the CanuniHim were shown
to be confieoatory.
It ia well eatabliahed that in a question
of rate-making there is a strong presump-
tion in favor of the conclusions reached by
an experiemced administrative body afttn'
a full heariog. Bealdea thia, there waa af-
flrmative evidence before the district oourt
to the effect that the rates were reasouableb
He evidence for complainant, tending to
show they ware nonremuneratlve, while
based upon actual experience in the opera-
tion of the road, yet relates to only a brief
period when conditiona were abnormal. Ths
road vai a new one, not completed until
June, l&lli that la, after the filing of the
bill and shortly before the final hearing.
The Commission's ratea, although promul-
gated in June, 1913, were not put into ef-
fect until September 10, and the period of
experimentation to which the erldence re-
lated extended only from ths data laat men-
tioned to March 31, 1914. Practically the
entire bualness of the road, at first, waa
hanting logs from complainant's land to a
mill operated by R. J. Darnell, Incorporat-
ed, at Memphis. That mill waa deatroyed
by fire in June, 1913, and thereafter the
corporation constructed a mill at Batesville.
but this waa not placed In operation until
March IT, 1S14. In consequence there waa
a heavy falling off in traffle on the road,
there being no Darnell shipments except
euch logs as were on hand when the Uam-
phis mill was burned.
The evidence throws doubt upon the ques-
tion whether the road, if built merely for
the purpose of serving the timber country
that ia tributary to its present line, was
not an extravagant venture. But, at yet,
there has been no serious effort to develop
traffic even from that country, aside from
aomplalnant'a own properties. II the road
was built rather as a branch of the Illinois
Central, and with a view to extending It
Into a more lucrative territory, any extra
Scost of construction attributable to this la
P hardly to be accounted as a part of the
fair value devoted to the use of the timber
traffic. The circum stances that a road may
hfve bean unwisely built, in a locally where
then la not anfflciant business to sustain it,
may be taken into account. Beagan T.
Farmers' Loan k T. Co. 164 U. B. 3B2, 412,
38 L. ed. lOK, 1028, 4 Inters. Com. Rep.
660, 14 Sup. Ct. TUp. 1047. And the nature
and value of the service rmdered by the
company to the public are matters to be con*
sidered. Covington k L. Tump. Road Co.
T. Sandford, 164 U. S. 678, S97. 41 L. ed. 680,
Sup. CL Bep. 41 B.
In the case before us. If the earning ca-
pacity of the railroad, present and prospec-
tive, really is as smalt aa appellant claims
it may be doubted whether the road is worth
what it cost. But it is sufficient for the
present to say that the experimental period
was too brief; there is too little showing
of an effort to develop traffic along the lius
of the road from property other than that
of complainant; and conditions during the
entire period covered by the testimony
have been too abnormal to enable us to say
that ths Commission's rates are confiscatory.
The decree under review should be so
modified that the dismissal of the bill shall
be without prejadlcB to another suit to
restrain the enforcement of the Commis-
sion's ratea if, after a full and fair test,
they shall be found to be confiscatory
(Knoxvllle r. Knoxville Water Co. 2)2 U.
S. 1, IB. 63 L. ed. 371. 382, 20 Sup. Ct. Rep.
148; Willcox v. Consolidated Oaa Co. 212
U. S. 19, BS, 63 L. ed. 382, 400, 48 L.RjL
(N.S.) 1134, 29 Sup. Ct. Ri^. 192, IS Ann.
Cas. 1034), and, as so modified, it should
be affirmed.
Modified and affirmed.
(W4 U. 8. 671)
SOUTHERN RAILWAY COMPANY, Plff.
in Err.,
E. B. PUCEBTT,
BxKOvaL or Cauan ^sft—Di verse Citi-
ZBHBSip— Suit Aaisiiro drdeb FsDERai.
Bmpuitxm' iJtaBiurr Act,
1. An action brought under the Em-
ployers' Liability Act of April 22, 1908
(36 Stat, at L. 66, chap. 149), as amended
by the Act of April G, IBIO (36 Stat, at L.
201. chap. 143, Comp. Stat. lnl6. g 8602),
cannot be removed from a state to a Fed-
eral court upon the ground of diverse eiti-
aenlhip.
[lU. Kcta.— For otlier eaaa^ sea Removal at
CauHs, Cent Dig. I| i, t.]
OomXBCE ^=>27(S)— EWpLOTIBfl' IiUBIL*
ITT— WlIEK EllPLOTEE ta EROAOED III
"ImEBBTATt COIOOEBCE."
2. An employee of an Interstate rail-
way carrier asaiatlng in clearing up a wreck
which was blocking the movement of cars
in interstate commerce, nho, while carrying
>r otber cases M* si
r-NUUBBR Id all Kar-Nninbered tXKWts * IndeiM
v*^iOOglC
7M
n SUFSBME GOUBT BEPOBTER.
Ooi. Tebii.
blocks on his shoulder vhich were to be
oacd in jackin^f up a wreclced car i.nd re-
placing it upon the track, atiimbled over
iome large clinkers which were on the road-
way near the track, and in atumhling struck
his toot on Eome old cross ties, overgrown
with grasB, as » result of which he wai
■eriously injured, was emplojed in inter-
Btate commerce within the meaning of the
Employers* Liability Act of April 22, 1D08
(35 Stat, at L. 66, chap. 149), as amended
by the Act of April 5. 1010 (36 Stat, at L.
8B1. chap. U3, Comp. SUt. 1916, 9 8662),
giving a right of recovery against the car-
rier for injury to an employee while so em-
Eloyed, although his primary object may
ave been the reacue <rf k fellow employee,
pinned beneath the car.
CBd. Hste.— For other deSnltlons. see Words
snd PhruDB. First and Secoad Series, loter-
■UIs Conunsrce.l
CODBTB ^a39&(^— E^ROB TO STATE GOUXT
— FOLLOWIHQ DECIUOH BkLOW— NlOLI-
3. The Federal Supreme Court will not
Uflitly disturb the coDcorrsnt cc»icIuaioB of
two state courts in an action brousbt nnder
the Employers' UabiUty Act of AprU 22, 1908
(as'Stat. at L. 66, chap. 149), as amended
by the Act of April S, 1910 (36 Stat, at L.
£01, chap. 143, Comp. Btat. 1916, g 8862),
that there was suf&cient ground for attribut-
ing negligence to the railway earrier because'
of the presence of large clinkers in the path
along which an employee was called upon
to pass in the course of his duty, and over
which he stanibled whils carrying some
blocks to be used in jacking up a wrecked
[No. 210.]
Argued April 25, 1917. Decided June 11,
1017.
IN ERROB to the Court of Appeals of
the State of Georgia to review a judg-
ment wkich affirmed a Judgment of the City
Court of Atlanta, in that state, in favor
of plain lis in a personal-injury action
brought under the Federal Employers' Lia-
bility Act. AfGrmed.
See same case below, 16 Qa. App. B51,
Be 8. E. 809.
The facts are stated In the opinion.
Heasre. Sanders McDanlel, E. H. Black,
and L. E. Jeffries for plaintiff in error.
Messrs. Edgar Watkins, Spencer B At-
kinson, and E. W. Born for defendant in
Fuckett reeoTered a rerdict and Judgment
i>in the city court of Atlanta against the
rBouthem Railway Company *for damages
arising from personal injuries sustained by
him in August, 1011, while at work for the
flompauy in it* yard at Atlanta, Georgia.
As submitted to the Jory, the action was
founded upon the Federal Employers' Lia-
bility Act of April 22, IBOS, as amended by
Act of AprU 6, 1010 (35 Stat, at L. 65, chap.
140, 36 6Ut. at L. 291, chap. 143, Comp.
Stat. 1916, { 8662). The judgment waa af-
firmed by the Georgia court of appeala (Ifl
Qa. App. £61, 86 S. E. 809), and a writ of
error brings it under our review.
The record shows that a petition and bond
for the removal of the cause to the appro-
priate Federal court upon the ground ol
diversity of citlienahip was filed in due time
by the defendant and overruled by the trial
court. An assignment of error based upon
this ruling has been abandoned, and proper-
ly so, in view of ma dedvon in iran^f
City Southern R. Co. y. Leslie, 238 U. ^
SOS, 602, SB li. ed. 1478, 1482, 36 Sup. Ct.
Rep. 844.
Whether, at the time he was injured,
plaintiff was employed in interatata com-
merce, is the only substantial question t
there being no jdiapute that defendant at
that time was a common carrier by rail-
road, engaged in commerce of that character.
As detailed in the opinion of the court
of appeals, the circumstance* of the oc-
eurrence were as follows: Plaintiff had
been engaged In inspecting cars which had
been put into an Interstate train — No 7S —
that ran between Atlanta, Georgia, and
Birmingham, Alabama; he had inspected
about 26 care, and there remained to be in-
spected about 12 cars, which were to be
placed in the same train; while plaintiff
was waiting for these, a collision between
other cars of defendant occurred in the yard
nearby, and several tracks were blocked by
the wreckage; one of defendant's employees,
named O'&erry, waa caught in the collision
and pinned beneath a car; in obedience to
the printed rules of the company, plaintiff
went immediately to the scene of the wreck
to render what assistance he could, and waa
there instructed by a supearior employee to
go and get a "jack" to assiat in raisingg
the wrecked ear • eo as to extricat**
03erry and clear the tradn of tha
wreckage; some of the remaining car*
not yet placed in train No. 76 were to
have been hauled orer the tracks that were
obstructed by the wreck, and on account of
the obstruction it became necesaary to de-
tour them, whereby train No. 76 was de-
layed for about an hour; while plaintiff,
aaeisting in clearing up the wreck, waa
carrying some blocks on his shoulder to be
used In jacking np the wrecked car and re-
placing it upon the track, he atumbted over
certain large clinkers which were on the
roadway near the track, and, in stumbling,
struck his foot against 100* old cross tie*
•a *•• same teplo « KBY-NOHBBB In aU K*r-H
1V18.
PUGET SOUND T. I* A P. CO. v. REYNOUML
overgrown with gr&sa, and in cotisequenee
f«ll and wag seriouBljr injured.
The court held that altliough plaintiri
primarj ohject may have Iwen to resgue hie
fellow employee, hie act nerertheleu was
tlie first step in clearing the obetruction
from the tracks, to the end that the remain-
ing cars far train No. 75 might be hauled
over themj that his work facilitated inter-
■tats transportation on the railroad, and
that canseqnentlj ha was engaged in inter-
•tate commerce when injured.
We concur in this view. From the facts
found, it ia plain that the object of clear-
ing the traclcB entered inaeparably into the
purpoae of jaclcing up the car, and gave to
the operation the character of interstate
eommeree. The case is controlled- by Peder-
•en T. Delaware, L. fc W. R. Co. 228 U. B,
146, 152, 67 I* ed. 1125, 1128, 33 Sup. Ct.
Rep. 648, Ann. Cas. 19140, 153, 3 N. C. C,
A. 779; New York C. 4 H. B. R. Co. t. Carr,
238 U. S. 260. 263, 59 L. ed. 1298, 1299, 85
Sup. Ct. Rep. 780, 9 N. C. C. A. 1; Pennsyl-
Tania Co. t, Donat, 238 O. S. 60, 60 L. ed.
139, 36 Sup. Ct. Rep. 4; Louisville A N. R.
Co. T. Parker, 212 U, S. 13, 61 L. ed. 119, 37
Snp. Ct. Rep. 4. Pedenen t, Delaware, L. &
W. R. Co. snpra. holda that a workman em-
ployed in maintaining interstate tracks in
proper condition while they are in use ia
employed in interstate commerce; the other
eases are to the effect that preparatory
movement! in aid of interstate transpor-
tation are a part of such commerce within
Z the meaning of the act.
? 'Of course, we attribute no significance to
Ue fact that plaintiff had been engaged in
Inspecting interstate cars before he was
called aside by the occurrence of the col-
lision, ntinois a R. Co. T. Behrens, 238 U.
B. 473, 478, 68 L. ed. 1061, 106S, 34 Sup.
Ct Rep. 646, Ann. Cat. 1B14C, 183, 10 N.
CCA. IBS ; Erie R, Oo. ». Welsh, 242 U, S.
808, 806, ei U ad. 318, 87 Sup. Ct Rep. 116.
It it contended that there was no suf.
flcient ground for attributing negligence to
defendant because of the presence of large
elinliers in the path along which plaintiff, in
the course of hit duty, wat called upon to
past. This is no more than a question of
fact, without exceptional features, and w«
content ourselvei with announcing the con-
elusion that we see no reason for disturb-
ing tbe result reached by two state oourta.
Great Northern K. Co. t. Knapp, 240 U. 8.
464, 466, 60 L. ed. 746, 761, 36 Sup. Ct Sep.
S99.
Jndgnent afBrmed.
Tbe Chuf Justice dlttenta.
(U4Q. 8. m)
PUGET SOUND TRACTION, LIGHT. A
POWER COMPANY, Appt,
CHARLES A. REYNOLDS, Fmnk R. Spin-
nmg, and Arthur A. Lewis, Constituting
the Public Service Commission of the
State of WeahingtoD, and W. V, laaner.
Attorney GeneraL
OONBTITUTIONAI. LiW *=3l35 — iMPAtBHia
Contract Obuqatiohb — RxqiriBiHa
Stbext Bailwaz PAaainaua to bi Qu-
BiZD Betoud FKsjicRiaK Lnan.
1. An order of the Pubite Serrict Con-
mission created by Wash. I*wb 1811, chap.
117, requiring street railway passengers to
be carried beynnd the limita of a particular
frsjichise, doea not Impair the obligation
of any contract contained in municipal ordi-
nance* i^rtnting street railway franohitea
which give the ttreet railway eoaqianiea
the right to make rules for the management
and operation of the line^ "provided that
such rules and regulations thall not con-
flict with the laws of the state" and the
they thall from time to time exist, and
the act creating the Commission and the
orders made by the Commission are within
this description.
[Ed. Nole.'-Far other cases, mat Ooastltutlanal
•w, Cent. Die. || MB-m.] ««">««»«
CoNoriTDTioHAL L*w «s»185— Iupaibhto
CORTRACT OSLIOATIOHa — MUNIOIPAt
CoNTRAOTS—PoucB PoWEs or State —
Street Railwat Fares add Transfem.
*u ^' J*" ^eierciee by the state, acting
through a Public Service Commission, of
Its pohcc power over street railway fare*
and transfers, could not be precluded bv
ordinances of the cities of Seattle and Bal-
lard, in the sUte of Washington, con-
tractual in form, granting street railway
trancbisee, where, under Wash, Const art
12, 9 18, adopted before the franchisee ware
granted, the legislature was required to
pBM laws establishing reasonable maximum
rates for transportation of passengers and
freight, and to correct abuses and prevent
diBcrimination in such rates, and was em<
powered to establish ft railroad and trana-
portation commisaion and define its power*
and duties, and by art 11, j 10, any city
containing a population of 20,000 inhabi-
tants or more It permitted to frame a char-
ter for its own goveromeDt "consistent with
and subject to tile Constitution and lawi
of this state."
OoMSTiTDTroNAi, Law «=a2Q7~-I>T]H Pm-
CEsa OF Law— Rate RiflULATioir.
8. Whether an order of a Public Serr.
Ice Commission requiring street railway
passengers to be carried beyond the limita
of the particular franchisee covering those
lines, and at a reduced rate, is confiscatory
or otherwlBo arbitrary within the inhibition
of U. S. Const 14tk Amendl, U not to ba
>• topla 4 SfilT-NDHBBa la aU K*r-Numb«r^ DIswto A Indet
A^^OOglC
» SUPBEUE COUBT BBPORTES.
Ooi. ■
deUrmlned wltli reference to Cftrnlngi ud
operktiUK ei^eneei at Uia line* in cnieation,
•upaniteljr conilderad, where raeh liiiea ftre
and htve Img been operated M perU of
[Ed. NoU.— ror othw ouM, M* Ooartltatloul
L«v. ont. Dir- H sn-mi
Cabriebs tf=3l2nO) — OovzBTniEmAZ, Con-
TBOL — Stkett Rah-watb — Tkeottoh
SuTioB— Snrsu Faix.
4. A street railira.7 vnepaaj operating
ft number of line* ki parte of a eingle efe-
t«m niB7 be required to eetablUh through
Bcrvic« upon the payment of a single fare.
TBd. Notfc— For oOM OMM, BM Ckrrlen,
Cent. Die H U-Mll
[Ho. 220.1
APPEAL from the District Court of the
United SUtea for the Western District
of Washington to review a decree denying
an application for a temporary injunction
to restrain the enforcement of an order of
the Public Service Commission of that state,
requiring street railway passengers to be
carried bejond the limits of the particular
franclLise and at a reduced rate. Affirmed.
See same case below, 223 Fed. 371.
The facts are stated in the opinion.
Meesn. Jatnea B. Howe and Hugh A.
Tait for appellant.
Mr. W. T. Tnnner, Attorney General of
Washington, and ITeaare. Scott Z, Header-
con, L. L. Thompson, and C. E. Amey for
appellees.
i.
. Mt. Justice Pitney delivered the opinion
of the court:
e Appellant (plaintiff below) owns and
t operates a street railway system in the city
* of Seattle, Washington,* aggr^atjng about
EOO miles, as assignee of numerous fran-
chises granted to its predecessors in inter-
est by the cities of Seattle, West Seattle,
and Ballard, snd by King county. It filed
Its bill in the district court to obtain relief
from tbe operation and effect of an order
made by the Public Service Commission of
the state on March 24, 1916, bringing in
pa defendants the members of the Commis-
sion and the attorney general of the state.
Plaintiff being a corporation of the state
of Massachusetts, and defendants citltens of
the state of Wasltlngton, the jurisdiction
was invoked both upon the ground of di-
Terslty of citizenship and upon the ground
that the order complained of was alleged to
impair the obligation of contracts and de-
prive plaintiff of its property without due
process of law, in violation of the Const!-
hitton of the United Statea The order was
made ■■ the result of an Investigation of
which plaintiff had notice, and It contaiw
the following provisions:
"(1) niat ths defendant company [plain-
tiff] contlnDe the operation ol Uumch
service on the Ballard beach line.
"(2) That the Alki point and Pauntleroy
park lines be operated through the city of
Seattle on First or Second avenue as far
north at least as Virginia street.
"(3) That the defendant c<Hnpany fur-
nish sufficient cars to provide seats for sub-
stantially all personi using the Alki point
and Fauntleroy park lines."
The third paragraph was subject to a
qualification; but sines the district court
granted an injunction against this part of
the order, and defendants have not ap-
pealed, the qualifying clause need not be
s«t forth and we may confine our attention
to the requirements of ^I 1 and 2. As to
these, the district eour^ three judges sit-
ting, denied an application for a temporary
injunction [22S Fed. 371), and plaintiff
brings the case here by direct appeal under
I 238, Judicial Code [30 Stat at L. 1157,^
chap. 231, Comp. Stat. 1013, S 1216]. g
* In order to understand the effect of the*
first two paragraphs and the grounds upon
which they are attacked, it should be stated
that the Ballard beach line was constructed
and is operated under a franchise ordinance
of the city of Bsllard, which city after-
wards became and now is a part of the city
of Seattle. The line extends from Ballard
beach to the intersection of West 69th street
snd 24th avenue, at which point it connects
with lines of plaintiff that were constructed
under other franchises. For some time
prior to and at the date of the making of
the order In question, plaintiff had been
and was operating through cars over the
Ballard beach line and the connecting lines
to and into the business section of Seattle,
instead of physically transferring passen-
gers from car to car at West SDth street
and 24th avenue. Because, as is said, of
the expense attached to the operation of
through cars, plaintiff had given notice that
It would discontinue such operation and re-
quire the transfer ot passengers at the point
menttooed. The effect of the order was to
require plaintiff to eontlnne the through
The Alkl point and Fauntleroy park
lines, each of them 9 or 9 miles in length,
were constmeted unda separate franchisea
granted to predecessors In interest of plain-
tiff by the city of Seattle. They have their
northun termini at or about Yessler way,
but for two or three years prior to the dat«
of the order cars on these lines, instead of
stopping on their north-bound trips at that
point, continued about a mile farther north
along First or Second avenue to Virginia
^9For etlierci
■ sea ssBt* topic * KBT-NDMBSB In all Ktr-Numtwred OlcMts ft IndMse
1»1«.
PDGEf sotnm T. L. * p. oa T. bxzholds.
707
•tTMt, !b the Imilnu* ^atrtet of thi Mf.
Shortif before tlu promulgatlan of tha or-
iw, this through lervice vaa diMontlnned,
kiid north and South-bound pAHMtigeri n-
quirod to trangfrr at Ycsalcr way. The
affect of the order wa« to compel the rain-
■tatement of tiie through aerviee.
^ The ordinaacea under which theaa three
gHnea were cimatructed provide In enbatanee
• th«t the eompsDj "ehall*hftva the right ht
■nj and all times to maka reaaonable rule*
and regulation B for the managunrat and
Operation of tiie railway llaea herein pro-
Tided for; provided that meh rule* and
regulations shall not conflict with the lawa
of the state of Waehington and the charter
and ordinaacea of the city." Baeh francblH
providra also that tha compaa; ehall have
the right to charge a paeaenger fare for one
eontinuons pauage, not iiceeding S cent*,
even though a transfer be neceasary, but
■hall sell commutation ticketa entitling the
purchaser to 25 ridea for |1, mch tlckata,
however, not to be transferable, and not to
•ntitle the owner to the transfer priTilege.
<1) One ground of complaint reapecting
the order of tha Commiaaion la that, in
requiring patacngera to be carried beyond
the limits of a particular franchlae, it in
effect confers the transfer pTi*i1ege upon
holders of commutation or "4-cent" tickets.
The order says nothing about rates of fare;
but we will aeanme, as the district court
assumed, that it ha« the affect attributed
to it in this respect
It ia urged that the order Impairs the
obligation of the contracts contained in the
franchise ordiDancea, both in regard to
transfers and in regard to plaintive right
to make Tulea for the management and
operation of ita Hnea. As to the latter
point, the proviao that the rules "shall not
conflict with the laws of the state," ate.,
by fair construction, means the laws as
they shall from time to time tttlst. The
aot eatablishing the Public Serriee Commis-
sion (Laws 1011, chap. 117) and orders
made by that Commiaaion ale within the
description; hence, the contract, if it l>a a
eontraet, was subject to and la not impaired
by the order in question.
Assuming (what la not clear) that the
prorision in ths franchise ordinances re-
specting the rates of fare and the transfer
privilege ara contractual in form, itill it is
»<well settled that a municipality cannot, by
■ a contract of this'nature, foreclose the ex-
ercise of the police power of the state un-
lesa clearly autlioriied to do so by the su-
preme legislativa power. The Constitution
of Waahington, art. 12, g IB, requires the
I^islature to pass laws establishing reason-
able maximum latas of charges for Oia
transportation of paasengers and freight,
and to eorrect abuaes and prormt discrimi-
nation In rate* I7' railroads and other eom-
mon earrieia, and provides that "a railroad
and transportation commission may ba ea-
tabllshed, and Its powers and dntiea fully
defined 1^ law." By art. 11, | 10, any ci^
containing a population of twenty thousand
inhabitants or more is permitted t« frama
a charter for its own government "consist-
ent with and subject to the Constitution
and laws of this aUta." lliis Constitutitm
was adopted In 1SB9, long previous to the
date of tha earliest of plaintiff's franchise
ordinances. Tfae supreme court of Wash-
ington haa held that the provisions of mu-
nicipal chartora are subject to the legisla-
tive authority of the state; that the Publle
Utilities Act superseded any cooflieting or-
dinance or charter provision of any cltyi
and that contractual provisiona in fran-
chises conferred by municipal corporations
without express legislative authority ara
subject to ba aet aside by the exercise of
the sovereign power of the state. Ewlng r.
Seattle, fiS Waah. 229, 104 Pac. 269; Btata
ex rel. Webster v. Superior CL fl7 Wash.
37, 43-00, L.BJ.191BC, 287, 180 Pac. 8S1,
Ann. Cas. 1913D, 7S.
"nia present case la very clearly dlatln-
guishable from Detroit United B. Co. r.
Michigan, 242U. 8.28S,248,61L.ed. 268,
87 Sup. Ot Rep. S7, wliere the state legisla-
ture had expraasly provided that the munici-
pal emporatlon ndght maka a binding agree-
ment with a street railway reapecting tibe
ratea of fare.
(2) It Is insisted that ndUier tha Alkl
nor tha Pauntleroy park line Is earning
aufflcient to pay ita operating cost, or ever
can do so under a fare limited to B oent^
and that for this reaaon an order requiring
these lines to carry pasaengers beyond thaw
termini fixed in their 'franehises np<m 4-*
cant tickets, and to give them the mora
costly through serrlc* by means of a aingla
ear, is neeeaaarily a taking of plaintiff's
property without eompensatlon, and henea
without due process of law, within the
meaning ot the 14th Amendment. A similar
point was made in the bill with respect to
the Ballard beach line, bnt Is not seriously
pressed here. As to the other two lines,
there seems to ba no question that sinoa
they run for a considerable distance over
the tide flats, receiving and diacharpng bnl
few passengers en route, to that a majority
of the passengers are carried distances of
6 or 6 miles, these lines, separately consid-
ered, never have paid operating ^pensea,
and probably never will.
But we cannot accede to tba mggeatlOK
that the question whether the Commiasloa'a
order is eonflscatory or otherwise arbltrar*
witUa tba liiUi>ltioa «f tka 14tk Ai^wl-
A^TOOglC
7W
$7 SnPSXUE COCBT BEFOBIEB.
Oct. :
maat Is to ba Jatcrmliwd with raferenM
clone to the Alfci, tlu Fanntleroj, or the
BalUrd bwdi linee. Theea en end long
luire been operated by plaintiff u parte of
tt Bjatem comprising 200 mile* of tracke.
The Commission found thAt the net earn-
ings of the B^TBtem for the jeer ending Feb-
ruary 28, 1B16, not Including depreciation
ftnd taxee, were upward* of 91,000,000; that
the company had refused to produoe the
valuations of its property made bf experts,
and had failed to show that tliere was not
■ufficient return from its property to pay
operating eipeneee, taxes, and depreciatii»i,
and leave a balance. And from the evidence
introduced the CommiBiion found the laot
to be that, allowing for the serricet re-
quired by its order, the company would
have net returns over and above operating
expenses, taxes, and depreciation. It was
not and U not contended that the system
•amingB are un remunerative.
PiaintifT relies upon Northern P. K. Co.
T. Korth Dakota, 236 U. S. 586, 604, 69
.L. ed. 735, 7*5, L.R.A.— , — , P.UJL
glSieC, 277, 35 Sup. Ct. Rep. 42B, Ann. Caa.
• 1916A, 1, where this court held that a*stat-
nte which segregated a tingle commodity,
and imposed upon it a rata that would
eompei the carrier to transport it foi less
than the proper cost of transportation, was
In exeest of the power of the state. In our
opinion, that decision 1* Inapplicable, the
present caae being controlled rather by St.
Louis i 8. F. R. Co. v. Qill, 15fl U. S. 049,
eS6, 39 I. ed. 567, 673, 16 Sup. Ct. Rep.
484, where the state of Arkansas had pre-
serilKd a maximum rata of 3 eente per mile
(or each paMenger, under a penalty payable
to the passenger from whom an overcharge
waa exacted, and in an action to recover
Bueh a penalty the company defended on the
ground that the portion of ita road over
which plaintttt waa carried waa highly ex-
pensive to construct and maintain, and that
the cost of maintaining it and transporting
paesengers over it exceeded the maximum
rate fixed by law. But this oonrt held
"that the correct test was as to the effect
ttf the act on the defendant's entire line,
and not upon that part which waa formerly
a part of one of the consolidating roads;
that the company cannot claim the right to
earn a net proSt from every mile, section,
or other part into which the road might be
divided, nor attack aa onjust a regulation
which fixed a rate at which aome inch part
would be unremunerative; , . . and,
finally, that to the extent that the question
of injustice is to be determined by the ef-
fects of the act upon the earnings of ths
company, the earnings of the entire line
must be estimated as against all its legiti-
Bate Apenaes noder the aeration of the
act within the limits of the staU of Az-
kanaaa."
(3) PlaJntilTs brief contains aome general
attacks upon the effect of the Commission's
order in requiring plaintiff to carry passen-
gers over portions of "separata and distinct
franchise routes" upon payment of a single
fare. This criticism is not well founded.
Even were the aeveral portions of ite linea
separately owned, they being operated preo-
tieally as a single system, it would be with-g
in tbe*boiinds of reaaonable regulation to*
eatablish through service and a joint rat*.
Wisconsin, M. i P. R. Co. v. Jacobson, 179
tr. 8. 287. 290, 801, 46 L. ed. 194, 199, 201,
21 Sup. Ct Rep. 116; Michigan C. R. Co.
V. Michigan R. Commission, 230 U. 6. 015,
629, 59 L. ed. 760, 755, P.UJL 191SG,
203, 35 Sup. Ct Rep. 422.
The decree of the IMstiict Court, BO far
aa appealed from, is affirmed.
The Cana Justice and Mr. Justioa H^
Konna dissent because they are of tha
opinion that this case, as a matter of au-
thority, is controlled by Detroit United R.
Co^ V. Midissn. 242 U. 3. 238, 61 L. ed. 268.
37 Sup. Ct. Rep. 87, and that as a matt«r
of original consideration the assailed legia>
lation has impaired the obligation of •
contract, in violation of the ConstitutioD
of the United States, and was repugnant
to the Constitution because wanting in due
Mr. Justice McRejnoIda also dlsaentt.
OH Q. 8. m)
FERRY 0. LANRAU, as AdmlntBtrafor td
the Estate of Afary J. T..ni.am_ Deceased,
et al., PIffa. in Err,
3- T. McKEEL.
TiVB ^s5 — OouPUTATioif — Efibotivb
Datb of Removai. ot BEsmiOTias ok
Alibnatidit.
The removal of reatrieitons on alieuatloa
of a BurpluB Indian allotment becsme effec-
tive on the 30th da; sfter the date of th«
Secretarr of the Interior*! approval, eon-
formably to the Act of Congreas of April ZL,
1904 (33 Stat at L. 189, chap. 1102), of
an appropriate finding and recommenda-
tion by the Indian agent, where the order
of the Secretary of the Interior read, "Ap-
proved : this approval to be effective thir^
days from date.
r. Note.— re
enbmltted April 80, I91T.
11, 1U7.
II topLc A KXT-NUMBSR In all K*r-Namberwl Dlgastsf* {^llf(nfO | ([-
Ul«. UoCOACH r. INSUEAKCB COMPAIfT OF KOBTH AUERICA.
TN ERROR to Om Supreme Court of th« I Bakar r. H&miDett, tlie languid in que*-
. Stats of Oklahoma to review a jndg- 'tton was that contained ' " '* ' " "
meat which afflnned a Judgment ol the DIb-
trict Court of UarahaU Coimtj, in that
state, in favor of defendant in an action of
ejectment. AfDrmed.
See same case below, — Okla. —, 148
Pae. 844.
The facta are atated in the opinion.
Measia. Orion L. Rider, George E.
Rider, and E. S. Hurt for plaintiffs in er-
ror.
iSr. J. P. HcKeel, in propria pereona,
and MeasFB, C. H. Ennia and Jamet E. Webb
^for defendant In error.
■ * Ur. Justice Pltner delivered the opinion
af the conrti
This writ of error presents but a single
Federal question, and that is within narrow
eompass. The suit involves the title to a
part of the surplns allotment of Marj Jane
lAnham, who woa a Choctaw Indian of
three- fonrthe blood. Defendant in error
claims title under a deed made hj her on
April 25, 1908. It is conceded that because
of legielation by Congress prior to the Act
of April 21, 1004 (chap. 1402, 33 6UL
at L. 1S0, 204), the land was inalienable,
itnleas the restriction upon its alienation
had twen removed bj an order of the Secre-
tary of the Interior, made pursuant to that
act. In contonnity to its proviaionB, the
United States Indian agent, after investiga-
tion, made the appropriate finding and tee-
onmended the removal of restrietlons up-
on the alienation bjr Mary Jane Lanham of
ber surplus allotment, and this waa ap-
proved hy the Secretary of the Interior in
writing under date of March 26, 190S, in
these terms: "Approved: this approval to
be effective thirty days from date." If
either the day of Uie approval or the day of
the conveyance be included, thirty days had
expired on the day the deed was ozeeuted.
He supreme court of Olclahoma, following
Taylor v. Brown, 147 U. 8. C40, 37 L. ed.
813, 13 Sup. Ct. Bep. S40, and Baker v.
Eammett, 23 Okla. 480, 100 Pae. 1114, held
that the data of approval should be In-
eluded in computing the thirty-day period,
and that therefore the deed waa valid (—
Dkla. — , 148 Fac 844).
In our opinion the decision was oorrect,
Salthough we sustain it upon grounds differ-
• ing somewhat from those*upon which the
cited cases rest. In Taylor v. Brown, the
question aroao under the proviso to } 16 of
an Act of Uarch 3, 1875 (18 Stat at 11
402, 420, chap. 131, Comp. Stat. 1916,
I 4611), that the title to lands acquired by
certain Indiana under that section should
"remiMi inalienable for a period of Ave
years from tbt date of the patent.'
g 16 of the Sup-
plemental Creek Agreement (Act of June 30^
1002, chap. 1323, 32 SUt. at L. GOO, 503), to
the effect that lands allotted to citijiena
should not be alienated "before the ezptra»
tien of five years from the data of the
approval of this supplemental agreement.**
In each ease the statute contemplated a
vesting of title accompanied with a prohibit
tion of alienation during a apecified period,
and it was held that the initial date should
he included in the computation because,
but tor the restriction, the land might bava
been alienated on that data. Here the r»
striction upon alienation arose out of an-
tecedent legislation, and continued until tlia
effective approval by the Secretary of the
Interior of an appropriate finding by the
Indian agent. The approval was reqiured
to be^ and in this case was, in writing, and
we have to do merely with its interpret^,
tion. What, then, ia the meaning of "effee-
tive thirty days from datel" Certainly thia
cannot be construed the same as if it read,
"^eetlve n/ter thirty days from date."
Plaintiffs in error, in argument, suppose it
to have read; "effective one day from date,"
and ask whether in that event it would
have become effective immedlHtely upon be-
ing signed by the Secretary ot the Interior.
We answer "No," but tliat it would have
beeoma effective on the following day) that
ia, on the first day after its date. By like
reasoning, the order as written became effec-
tive on tta 30th day after its date; that
is to say, on April 25th, and enabled the
allottee to make a valid conveyance on that
day.
Judgment affirmed.
(M4 U. B. ua
WnXIAH UoCOACH, Collector of Internal
Revenue, Petitioner,
InXBItAI, RXTEIfn ^92S — COSPORATIOIf
EtxoiBB Tax — DKDcortoNB raou GaOM
Iroohb— RiSBRVKB or Insurance Cou-
PAHT Hkld AoaiNSi Unpaid Losau —
"Resuvi Punna."
The amounts of accrued unpaid loseea
which fire and marine insurance companiel
are required by the State insurance com-
mlasioner, under the authority of Pa. Act
June 1, 1011, F. L. 607, to schedule each
year as items of liabilities, are not "reaerve
funds required by law," within the meaning
of the provision of the Federal corporation
excise tax law of August 6, ISOS (36 Stat
at L. 112, chap. 6), g 88, which permits a
deduction from annual gross income of in-
surance companies subject to the tax of
"the net addition. If any, required by law
^=iFor eUier ci
isloplcaKBY-NOUBBBlDaUKer-NumberedDtCMtsAlDanea >i
iglC
710
87 SUPREME COUBT BEPOBTEB,
OOT, Tnu,
to b« made within the jeax to reaerre
(Bd. Hot*.— For otlitr euaa, M* InUraml B«T-
•nu«i C«nL Dl>. 11 71, Tl.
For other delDltlaai. mb Wordi &ad Fbruw,
rint and Saoond SerlM, Romttb road.]
[No. 475.]
Argued MarctL 14, lgl7. Decided June 11,
1817.
ON WRIT of Certiorari to the United
Statee Circuit Court of Appeals for the
Third Circuit to review ft judgment whioh
rerened a judgment of the District Court
for the Eaatem Diatrict of Pennaytvania in
favor of plaintiff in a suit to recover baclc
taxes, with Inetructione to tillow a dis-
puted Item In full. Beversed. Judgment
ol District Court affirmed.
Bee eame ease below, 140 C. C. A. 187, 224
Fed. SS7.
The facta are itated in the opinion.
AaaiBtant Attorney Oeneral Wallace for
petitioner.
Meaara. B. P. Pepper, O. W. Pepper,
KOd Bayard Henrr for respondent.
iti. Juetice Pltnej delivered the opin-
ion of the court;
Thia wai an action brought by rapondent,
• flra and marine insurance company of the
atata of Pennsylvania, to recorer a part of
the exciae taxea exacted of it for the years
1910 and 1911 under the Act of Anguat S,
1909, chap. <t, S 38, S6 SUt. at L. 11, 112.
Aa the eaae cornea here, only two Itema are
In dispute, one for each of the year* men-
tioned, representing the tax upon amounts
added in each of those yean to that part of
what are called Ita "reaerre funds" that ia
beld against accrued but unpaid losses.
S The act imposed upon every Insurance
• company 'organized under the laws of the
United States or of any state an annual
•zeise tax with reapeet to the carrying on
or doing buiinesa, equivalent to I per
centum upon its entire net income over and
above t£,000, with exceptions not here
pertinent. The second paragraph of | 3t)
provided: "Such net income ehall be ascer-
tained by deducting from the gross amount
of the income of such . , . insurance
company . . . (second) all lossea actual-
ly sustained within the year and not com-
pensated by insurance or otherwise, includ-
ing a reasonable allowance tor depreciation
of property, if any, and in the case
of insurance companies the sums other
than dividends, paid within the year (m
policy and annuity contracts and th« net
addition, if any, required by Imo to b§
made within the year to reserve fundi."
The italics Indicate the particular words
upon which the controversy turns; the ques-
titm being whether, within the meaning of
the set of Congreas, "reserve funds," with
annual or occaaional additions, are "required
by law" In FennBjlvanla to be maintained
by Are and marine insuranea companies,
other than the "unearned premium" or "re-
insurance reserve," known to the general
law of insurance.
The district court rendered a judgment In
plaintiff's favor, excluding, however, the dis-
puted items (ZIS Fed. SOS): on plaintifa
writ of error the circuit court of appeals re-
Tbraed this judgment, with instructions to
allow the claim in full (140 C. C. A. 107,
224 Fed. 057): ud the case waa brought
here by writ of certiorarL
Plaintiff was chartered by a spedal act,
but la subject to the state insurance law.
Its business ia confined to fire and marine
The law of Pennsylvaola (Act of June 1,
ISll, P. I^ 007, eOS) createa a state in-
Burauoe commissioner with supervisory con*
trol over the companies ; provides in S * t'^t^
he shaU see that all the laws of the«
commonwealth ■ respecting insurance com-*
panics are faith Sully executed, authorising
him to malce examinations, to have aoeaaa
to all the book* and papers of any company,
to examine witnesses relative to its affain,
transactions, and condition, to publish tha
result of his examination when he deems it
for the interest of the policy-holdera to do
so, and to suspend tlie entire business of
any company during its noncompliance with
any proviaion of law obligatory upon it, or
whenever he shall find that its aaeeta ar«
insufficient to justify its eontinuasee ia
business; and whenever he finds any com-
pany to be insolvent or fraudulently con-
ducted, or ita assets insufficient for tha
carrying on of ita buainees, he Is to eom-
niunicate the facta to the attorney ganeraL
By I IS every insurance company ia re-
quired to file annual atatementa with tlw
eommiasioner, upon blank forma to be fur-
nished by him, such as shall seem to him
beat adapted to elicit a true exhibit of their
financial condition. Sections T, 8, and 9, setS
forth in the margin,! ' make specifie pro-?
1 Section 7. In determining the liabili-
ties upon Its contracts of insurance of any
Insurance company other than life ii
tor eosiMiKy inaurance companies, charge
one half of the premium on all annual poli-
•iaa written within one fear, and on poli-
ciea written for more than one year he shall
charge one half of the current year'a pre-
miums, plus the whole of the premiums
for subsequent rears. For fiat insur-
ance comiianies he shall charge SO per
centum of the premiums written In their
policies upon all unexpired risks that hav*
one year, or leas than oiu year, to run, and
■ urn* topic * KVT-mniBxa U ail Ksr-Nombsred DIxwta
-"tWWgic
ISM.
ttaiou for Meertalnlng the reserre for
diSereiit cluses of * companies other than
life iuuranM eompaniea. Another act of
the Mime date (P. L. 1911, p. 099] proridet
for judicial procecdingi at the instance of
Qie insurance commissioner looking to the
disaolution of insolvent and delinquent
eompaniea. Its provisions need not b«
A previous act (April 4, 1ST3, P. L. 20,
£2) required a specified reinsurance reserve
against unexpired risks on fire, marine, and
Inland policies. The Act of 1911, just quot-
ed, requires the maintenance of a lub-
stantiallj similar reserve; and, with respect
to casualty companies, and these only, that
a reserve be maintained against unpaid
losses, based upon the amount of claims
presented. The reference in g 9 to "reiiuur-
■nce and loss reserves, as above defined," Is
limited by what precedes it; and the sec-
tion deals not alone with "reserves," but re-
quires "all other debts and claims" to be
accounted as liabilities.
It appears that under this legislation, and
under previous statutes in force smco 1873,
the insurance commie si oner has required
plaintifT and similar companies to return
each year, as an item among their liabilities,
the net amount of unpaid losses and claims,
whether actually adjusted, in process of ad-
justment, or resisted. And, although this
practice has not been sanctioned by any
decision of the supreme court of the state,
it Is relied upon as an administrative In-
Sterpretation of the law.
f •Conceding full effect to this, it still does
not answer the question whether the
amounts required to be held against unpaid
losses, in the case of fire and marine insur-
ance companies, are held as "reserves," with-
in the meaning of the Pennsylvania law or
of the act of Congress, however they may
be designated upon the ofiicial forms. As
already appears, the Pennsylvania act
speciBcally requires debts and claims of all
kinds to be included in the statement of
Uabilitiea, and treats them as something
distinct from reserves. The object is to
WAIXXK
III
exercise abundant eaution t« maintain th«
companies in a secure flnancial position.
The act of Congress, on the other hand,
deals with reserrea not particularly in their
bearing upon the solvency of the company,
but aa they aid in determining what part
of the gross income ought to be treated aa
net income for purposes of taxation. There
ii a specific provision for deducting "all
losses actually nuatained within tha yaar
and not compensated by insurance or other-
wise." And this is a sufficient indication
that losses in immediate contemplation, but
not aa yet actually sustained, were not in'
tended to be treated as part of the reserra
funds j that term rather having referene*
to the funds ordinarily held as against tha
contingent liability on outatandlng poUcie*.
In our opinion Uia reserve against unpaid
losses is not "required by law," in Pennayl- .
vania, within tha meaning of tha act of
Congress.
It results that the Judgment of tha
Circnit Court of Appeala should be reverted
and that of the District Court affirmed.
Beversed.
FRANK WALKER et al.
CODBIB ^=299— JlTBIBDICnoH OF U KITED
States Codbts — rsDEBAL Qdestios—
PtXA.DTtia.
Allegations of the bill in a suit by
tificates as a cloud t
of tha defendants' certificates of location,
must, when determining whether the bill
states a cause of action under the mining
laws of the United States justiciable in tha
a pro rata of all premiums on rislcs having
more than one year to ran; on perpetual
Colicies he shall charge the deposit received,
WB a surrender charge ol not eiceedinR 10
per centum thereof. For marine and inland
risics he shall charge 60 per centum of the
premium written in the policy upon yearly
risks, and the full amount of the premium
written in the policy upon all other marine
and inland risks not terminated.
Section 8. He shall, in calculating the re-
serve against unpaid loases of eatiuUty com-
fianles, other than losees under liabil-
ty policie*, set down by careful estimate
in each case the loss likely to be incurred
agiinst every claim presenj^di or that may
be presoited in pursuance of notice from tha
insured of the occurrence of an event that
may result in a lossi and the sum of the .
items BO estimated shall be the total amount
of the rncrve. . . .
Section 9. Having charged as a liability
the reinsurance and loss reserves, as above
defined for insuraneo companies of this com-
monwealth other than life, and adding there-
to all other debts and claims against the
company, the coramtssloner shall, in case ha
flnds the capital of the company impaired
20 per evitum, give notice to the company
t« make good Ute oapital within Mtttf dafa.
>• topic A KBT-NDliBBB In aU Ksr-Nmnbarad DlcwtS * Indeiaa
.gic
TU
IT SUPUSME COUBT REPORTER.
Oct. Txut,
F«derftl courts, be regarded u eaaentuil '
Suia of the cause of action, either nnder
le general rule of equitj respeetfiig aaita
to remove a cloud on title, or nnder the
local law (Mont CodM 1»0T, H fillS and
6S70), under which, ae coitBtnied bj the
Btata courts, the complaint in suits to re-
move clouds from title must disolose the
facts neccBsary to show that, but for the
interposition of the court, the plaintiff may
■ulTer injury.
ed. Note.— Vor oUm casaa, Ms Oourta, Osnt.
I ML]
[No. 234.]
8ulnnitt«d October 18, 1916. Decided June
11, 1917.
APPEAL from the District Court of the
United States for the District of Mon-
tana to review a decree dismiuing, tor want
of jurisdiction, the bill in a suit to remove
a cloud OQ the title of a placer mining
el aim. Reversed.
He facts are stated in the opinion.
Messrs. John A. Shelton and H. C Hop-
kins for Olivia H. Hoplcins.
Messrs. John A. Sfaelton and 3. L. Tem-
pleman tor the Washington-Butte Iflning
Company.
MesErs. Ii. O. Slvans, W. B. Rodgers,
D. M. Kelly, and D. Gay Stivers for the
Anaconda Copper Mining Company.
I. Hr. Tbomas J. Walah for appellees.
«
• ■ Mr, Justice Tan DevanUir delivered the
opinion of the court:
This is a direct appeal undo- i 238,
Judicial Code [36 Stat, at L. 11S7, chap.
£31, Comp. Stat 1916, J 1216], from a
decree dismiBsing a suit in equity for want
of juriidiction, the queeUon for decision now
being whether the case presented by the
bill is one arising under the laws of th*
United States.
With considerable detail the bill alleges
that the plaintiffs are the owners of a placer
mining claim in Montana for which a Unit-
ed States patent was issued to their pre-
decessors in interest in 189fi; that they and
their predccesBors have been the owners and
In actual posaession for more than twenty
years; that at the time of the application
for the patent no mineral-bearing vein or
lode was known to exist within the boun-
daries of this placer claim; that prior to
Ha location two loda locations were made
•r attempted to be made, eovering part of
it, and while the application for the patent
was pending the lode claimants conformed
to the mining laws of the United States by
filing adverse claims In the local land office
and bringing suits to establish thorn In a
•onrt of competent jurisdiction; that the
plaoer claimants prevailed la those suits
and oertifltd ot^Iea of the Judgments wer«
duly filed in the local land office; that fur-
ther proceedings were then had in the Land
Department, resulting in the issue of a pat-
ent to the placer claimants according to
those judgments; and that under the mining
laws this passed to the plaintiffs' predeces-
sors a full title to all land and all minerals
within the boundaries of the placer claim. ^
The bill further alleges that, notwith-J
standing the 'absence of any known rein*
or lode within the Ixnmdaries of the placer
claim at the time of the application for the
patent, notwithstanding tiie judgments in
favor of the placer claimants in the two
adverse suits, and notwithstsnding the issue
of the pstent, several persons claim to have
mads lode locations at different timea from
1900 to 1913 upon port of the placer claim,
— the part covered by the two earlier loda
locations which were unsuccessfully asserted
in the adverse suits, — and have caused cer-
tificates of the location of these later loda
claims to be recorded in the office of the
clerk of the county wherein the land lies;
that theae certificates contain declarations
and recitals tending to support the loda
claims to which they refer,— there are nine,
— and give the length of each claim as 1,600
feet and its width as 600 feet; that these
lode claims and the certificates were made
Upon the mistaken theory that, under the
mining laws, the placer patent Is wholly
invalid as to ths ground covered by the
two earlier lode claims, and, if this be not
so, that the ground in controversy waa
known at the time of the application for
the patent to contain valuable mineral-bear-
ing veins or lodes, and therefore, under th«
mining laws, was excepted from the patent
and remained subject to location as lod«
claims; that, even if there were known min-
eral-baring veins or lodes within the placer
claim at the time of the application for
the patent, no subsequent location of any
such vein or lode could be made, under the
mining laws, to embrace more than 26 feet
of the surface on each side of it; that the
defendants are claiming the ground in con-
troversy under the later lode claims and
the certificates before described; that for
the reasons indicated these locations snd
certificates are invalid and the certiflcatea,
as recorded, constitute clouds upon the
plaintiffs' title snd reduce its market value;
and that the determination of the plaintiff^
rights requirea a conttmction of the mining
laws under which the proceedings resultingS
in the patent were had, 'and a decision of*
what, aceordlng to those laws, passed by
the patent, and what, if anything, was ^
eeptad and remained open to loeaUon.
There is also an allegaticm that the anit
Is one arising under the laws at the United
IT cases sae sam* topis ft SST-mmBBB lb all Ker-Nombered Plseala *
tJScTgic
loic
HOPKINS V. WALEEB.
TIS
BtatM, »nd the matUr In diBpato exceeds,
ezcliuive o( intorets and ooBts, tlie aum or
value of $3,000, but thers la no all^stian
of diverse citizeaihip. The prayer is that
the cloud caused hy the recording of the
certiScateB of location be removed and the
title of the plaintiff* quieted.
It la conceded that the plaintiff*, being
hi possCBaion, have no remedy at law, aod
that their remedy, if any, is In equity.
Our concern is not with this, but with the
queetion whether the caae ie one arising
tinder the law* of the United Stats*. A
ease doe* so ari** where an appropriate
■tatement of the plaintiff** eauie of action,
Doaided bj any anticipation or avoidance
of defenses, diaclosei that it really and sub'
■tantially involves a dispute or controversy
respecting the validity, conatruction, or ef-
fect nf a law of Congresa. Boston ft M,
Consol. Copper ft S. Min. Co. v. Montana
Ore Purchasing Co. 188 U. 8, 632, 47 L.
ad. eS6, 23 Sup. Ct. Rep. 434; Shultbls v.
McDougal, 225 U. S. 6S1, 66S, 66 L. ed. 120C,
1210, S2 Sup. Ct. Rep. 704; Denver v. New
Toric Trust Co. 2SD U. S. 123, 133, 67 L. ed.
1101, 1120, 33 Sup. Ct. Rep. 667; Taylor
T. Anderson, 234 U. 8. 74, 58 L^ ed. 1218, 34
Sup. Ct. Rep. 724. Assuming that the al-
legations of the hilt concerning the nature
and validity of the plaintiffs' title and the
existence, invalidity, and recording of the
defendants' certificates of location consti-
tute a part of the plaintiffs' cause of action,
it is plain that a controversy respecting the
construction and effect of the mining laws
U involved and ts sufficiently real and
substantial to bring the case within the ju-
risdiction of the district court. This is prac-
tically conceded In the brief for the defend-
ants which says: "The controversy arises
by reason of Uie peculiar provisions of the
law (Rev. Stat. S 2333, Comp. Stat. 191B,
I 4632) under which one 1* permitted to
enter upon lands patented as a placer claim
and to locate within such claim k lode or
S lodes known to exist at the time of filing
7 the^p plication for the placer patent." But
It is insisted that the allegations concern-
ing the existence, invalidity, and recording
of the defendants' certiflcates of location
form no part of the plaintiffs' cause of ac-
tion, and so, for present purposes, must be
disregarded. To this we cannot assent.
In both form and substance the bill is
«ne to remove a particular aloud from tlie
plaintiff*' title, — as much ao as if the pur-
pose were to have a tax deed, a lease, or a
mortgage adjudged Invalid and canceled. It
hardly requires statement that in such eases
the facta showing the plaintiff's title and
the eristence and invalidity of the Inatro-
ment or record sought to be eliminated aa
« «loud upon the title are easentiAl parta
of the plaintiff's causa of action. FuH recog-
nition of this is found In the decisions Ot
this and other court*. Wilson Cypreas Co.
V. Del Pozo y Marcos, 236 U. S. 036, 643;
644, 60 L. ed. 768, 761, 766, 33 Sup. CL
Rep. 446; lAncaster v. Kathleen Oil Co.
241 U. S. G51, 664, 656, 60 L. ed. 1161, IIBS,
1166, 36 Sup. Ct. Rep. 711; Walton v.
Perkins, 28 Minn. 413, 10 N. W. 424; Wab
V. Grosvenor, 31 Wis. 681 ; Teal v. Collins,
9 Or. 8S; Sheets v. Prosser, 16 N. D. ISO,
1B3, 112 N. W. 72.
If we turn to the statutes and decisions
in Montana relating to the right to main-
tain *uch suits, we find Uiat the same rule
is recognized there. Two statutes may be
noticed, Both were copied from the laws
of California and are found in the Montana
Codes of 1907. One, 9 611S, provides for
the cancelation of an Instrument, apparent-
ly valid, but actually invalid, where there
is reason to apprehend that, U not can-
celed, it may prove injurious to the plain-
tiff. The other, % 6870, permits a suit to
quiet title against an adverse claimant In
the absence of conditions which formerly
were deemed essential. In California suits
under the former are referred to as suits
to remove clouds from title, while those
under the latter are called suits to quiet
title. Tlie two sections are there regarded
as different In both substance and purpose,
— the former as putting in statutory form
and preserving "an old and well-settled
rule of equity," and the latter as greatlyg
liberalising and enlarging another old rule.*
Of the former. It is said that it "is aimed
at a particular Instrument, or piece of evi-
dence, which is dangerous to the plaintiff's
rights," and that "there can be no question
but that the facts which *haw the apparent
vaL'dity of the instrument which Is said to
constitute the cloud, and also the facts
showing its invalidity, ought to be etsted."
Castro T. Barry, 70 Csl. 443, 21 Pac. 040;
Hibemia Sav. ft L. Boc. v. Ordway, 38 CaL
670. The supreme court of Montana fol-
lows the California decisions, quotes ap-
provingly from them, and holds In respect
of suits to remove clouds from title thst
"the complaint must disclose the facts neces-
sary to show that, but for the interposition
of the court, the plaintiff may suffer injury."
Hicks V. Rupp, 49 Mont 40, 44, 4G, 140
Pac 97 ; Merk v. Bowery Min. Co. 31 Mont,
208, 309, 78 Pac 619.
Thus, whether we apply the general rula
or the Montana rule, it is manifest that the
allegations of the bill which it is insisted
must be dlsr^arded are material parts of
the plaintiffs' cause of action ; that Is to
say, thvy are Important elements of th*
■sifirtml lifpii to have the recording of tb*
A^^OOglC
31i
87 StIPHEME CQUBI. BBPOBTEB.
OOT. iMMia,
certificate* canceled u 4 cloud upon tlia
title.
Recorded ceitiflcates ol location constitute
tbe first muniment of the locator's paper
title (Ltndley on Mines, 3d ed. S 370) ; tuid
wbefi veriiicd, oe in the case here, are, in
Montana, made prima facie evidence of all
facti property recited in them. Codei 190T,
S3 2284, 22S5. So, when thej are appar-
ently valid, but, under thE mining laws, are
actually invalid, as ia asserted here, they
Biay becloud the title injuriously.
We are accordingly of opinion that the
bill states a case arising under the mining
laws of the United States, and of which
the District Court i^ given jurisdiction.
Decree reversed.
(24( V. S. (H)
BAMTA FB PACIFIC RAILROAD COM-
PANY, Appt,
OoNsmmoNAL Liw «=278(1> — Vebted
Right*— Dux Pkoocss o» Law — Rail-
way IiAND Gbant — lupoBiNO Cost or
Sub VET on Grantei.
1. Vested rights of the grantee under
the Railway Land Grant Act of July 27,
1800 (14 Stat, at L. 202, chap. 278}, which
sxpressly stated that such act was subject
to addition, alteration, amendment, or re-
peal by Congress, regard being had for tha
righta of th« grantee, were not Infringed,
'contrai^ to the due process of law clausa
of U. S. Const. 5th Amend., by the enact-
ment by Congress, while the grantee waa in
default, of the provisions of the Act of
July 31, 1878 (19 Stat, at L. 121, ehap.
246, Comp. Stat. 1016, S 48B2], requiring
tlie grantee railway company and similar
grantees to pay far the survey of the grant-
ed lands, and directing that this be done
Id advance of the issue of the patents.
CEM. Nut*.— For other cases, gee CaDetltutloul
Lisw. Cent. Dig. | TS3.1
Public Lands *=>82 — Baii,wat T.jwn
G»ANr— Cost of Subvet.
2. The departmental construction of the
prorisioni of the Act of July 31, 1876 (19
6Ut. at L. 121, chap. 246, Comp. Stat. 1016,
I 4882), requiring the grantee in a railway
land grant to pay for the survey of the
granted lands in advance of the issus of
the patents, as charging the grantees with
the cost of surveying the granted lands
only, and not with the mtire cost of the
survey of a township In which the grantee
is, entitled to a part of the lands only, was.
In etfect, incorporated Into the Act of June
25, 1910 (3Q Stat, at L. 834, chap. 406,
Comp. Stst. 1016, 3 4S14), In whidi Con-
gress, with undoubted knowledge of that
construction, chose to leave the terms of
the former provision undisturbed save as
the time of payment was advanced bj re-
quiring a depoalt of the cost In advance tA
tne survey.
[Bd. Nots.— FV)r otber esses, sea Ptibllo I^nds,
Cent. Dig. It 23t. W-lta.]
IlTJUSCTIOM «=r7S — AOAINST UWAUTHOB-
jZED Deicand bt OfficuIi — AoxtUAis
RxiiEDT AT Law.
3. The insistence upon or the giving ef-
fect to the unautliorized demand by the
Secretary of the Interior, made under the
Act of June 26, 1910 (36 Btat at L. 834,
chap. 406, Comp. Stat 1016, g 4014), that
the ^antae in a railwsy land grant, with-
in ninety day* of the demand, make an ad-
vance deposit of tbe entire cost of survey-
ing a township within the primary limits of
the grant, in which the grantee waa en-
titled to the odd-numbered sections only,
may be enjoined in equity, where there are
millions of acres of unsurveyed lands with-
in the primary limits of such grant, and
the railway company la entitled to many
of the odd-numbered aectione within the
unsurveyed areas, and where tbe statute
contemplates that when a demand there-
under Is not complied with the rights of
the grantee in the granted lands specified in
the demand "shall cease and forfeit" to the
United States, and the Seoretary of the
Interior shall notify the Attorney Greneral
in order that the latter may begin 'proceed-
ings to declare the forfeiture ana to re-
store the lands to the public domain. Tlie
plaintiff was not required, in order to test
the validity of the demand, to permit the
ninety days to pass and to rely entirely
upon defending such suit as might ha
brought by the Attorney General.
[Ed. Note.— ^FoT ottwr esses, we Injniketlon,
Cent. Dls. |] 113, IM, 160.1
PuBuc Landh «=82— Coot of Subvit—
Tender bt Graktxb in Railwat Ij4RD
OBAHT— A DB Q U ACT,
4. Tender by the grantee In a Tailw»
land grant of one halt the amount demand*
ed by the Secretary of the Interior as as
advance deposit under the Act of June 2S,
1910 (36 Stat, at L. 834, chap. 406, Comp.
Stat. igiS, 9 4014), to cover the entire esti-
mated cost of aurveying a township in
which the grantee was entitled to the odd-
numbered sections only, was adequate, the
Btajnite charging the grantee with the cost
of the survey of the granted lands only,
which i»)uld not, at most, be more thu
half the acreage in the township
[Ed. I4Dta.— For othar caMs, sea Public Lands,
Cent. Dig. 11 at, m-Ka.]
[No. 170.1
APPEAL from the Court of Appeals of
the District of Columbia to review a
decree which affirmed a decree of the Su-
preme Court of the District, dismissing the
bill in a buH to enjoin the Secretary of
the Interior firom insisting upon or giving
effect to a demand that the grantee in a
railway land grant make an advance d^
H ••• same tople * KBT-NUHBBR In sll Esr-Kombared Dicwts * Indaaes
.A^^OOglC
Ul«.
SANTA FB PAOXnO B. 00. t. LAHS.
r»
pMtt to cover tlie entire e«tim&ted cost of
■urrefing a townghip in whicli tlie grantee
wu entitled only to the odd-numbered mc-
tiona. Reversed.
See aa.me case below, 43 App. D. C. 407.
Tbe facts are stated in the opinion.
MeMfB. Alexander Brltton, Evans
Browoe, and Francis W. Clementa for ap-
pellant.
AsBiatant Attorney General K«arfnl (or
^appellae.
7 *Ur. Jnstice Tan Dcranter delivered tbe
opinion of the court:
Hia la a anit to enjoin the Secretary of
tbe Interior from InaistiDg upon or giving
effect to a demand heretofore made by him
on the plaintiff to the effect that the latter
make an advance deposit, under the Act of
June 2fi, 1910, chap. 400, 3fl Stat, at L.
834, Camp. Stat 1910, S 4914, of $6,600 to
eover the cost of surveying certain land*
within the primary limits of tbe land grant
made by tbe Act of July 2T, IBOO, chap.
KTB, 14 SUt. at L. 202, to the Atlantic A
Pacillc Railroad Company, to whose rights
the plaintiff has succeeded. The court of
first instance refused the injunction and
dismUsed the bill, and its action was af-
firmed. 43 App. D. C. 497.
The land grant was made in aid of tbe
construction of a proposed railroad from
Miatouri through Arizona to the Pacific
ocean; and included, subject to exceptions not
here material, every alternate odd-numbered
aaection of public land within defined limits
• on eitlier side of tbe road.* The lands along
the proposed road had not been surveyed at
the date of the grant, but the President
was to cause tbem to be surveyed as the
construction proceeded; and as each 26
miles of road waa completed patents were
to be issued for the granted lands lying
opposite that section. The grant was made
upon condition that construction be com-
menced within two years and that not lees
(Jian SO miles of road be completed during
each year thereafter; and the granting act
was declared to be subject to addition, al-
teration, amendment, or repeal by Congress,
due regard being had for the rights of the
grantee. Although expressly contemplating
that the granted lands should be surveyed
along with the other lands on each side of
tbe road, the granting act said nothing
about who should bear the cost of the sur-
vey. At first the grantee did not proceed
with the construction at the rate prescribed
(Atlantic 4 P. R Co. v. Mingus, 105 U. S.
413, 442, 41 L. ed. 770, 781, 17 Bup. Ct,
Rep. 348; House Report No. 1S3, 49 Cong.
let Sesa), and during tbe continuance of
this default Congress incorporated in the
Appropriation Aet of July 31, J976, ohap.
246, 10 Stat, at L. 121, Comp. Stai 1016,
S 4882, a provision requiring tbe grantee,
as also other similar grantees, to pay for
the survey of the granted lands, and direct-
ing that this be done in advance of the
issue of the patents. This provision, it it
contended, iafriuged upon the vested rights
of the grantee, and tlierefore was repugnant
to the due process of law clause of the 5th
Amendment to tha Constitution. But, in
view of the grantee's default and the re-
served power to add to, alter, amend, or
repeal the granting act, tbe contenticoi
must be held untenable. This necessarily
follows from tbe decisions in Northern P.
R. Co. V. TraiU County (Northern P. R.
Co. r. Roclcne) US U. S. 600, 29 L. cd. 477.
0 Sup. Ct. Rep. 201, and New Orleans P.
R. Co. V. United States, 124 U. 8. 124, 31
L. ed. 383, 8 Sup. Ct. Bep. 417.
Under the rectangular system of Burvey<
ing tbe public lands, whicji long has been
in f<H'ce, they are divided into townships '
and sections bounded by north and southS
and'eait and west lines. A township con-*
lists of thirty-six sections,— «acb approxi-
mately 1 mile square, — arranged in six rows
and progressively numbered by starting
with the northeasterly one and proceeding
west through the upper row, then east
through the second row, snd then alter-
nately west and east through the others. '
Rev. Stat. 3 2300, Comp. SUt. lOlS, S 4803.
A township has the same number of odd-
numbered sections that it has of even-num-
bered ones, and the two are so arranged
that they alternate just as do the different '
colored square* on a checker board. Tha
only lines run in the course of the survey
are tAe township lines and the exterior sec-
tion lines and tbe only monuments erected
or placed are those whitA mark these lines.
Every section line is a boundary between
two sections, one having an odd and the
other an even number. A township cannot
be divided until its exterior lines are estab-
lish ed, and the lines of the alternate odd-
numbered sections cannot be establbhed
without at the same time and by the same
acts establishing the lines of the even-
numbered sections. In short, the system is
such that a township Is surveyed as a unit.
Witb this surveying system in mind, the
officers of ^e Land Department construed
the provision of 187S as intended to charge
the grantee with the cost of surveying the
granted lands, and not with the cost of
surveying the township. A plsn for divid-
ing the coet on an acreage basis between
the granted and tbe ungranted lands was
accordin^y adopted. By it, if the granted
Isnds constituted half the total area, aa
they would where all the odd-numbered seo-
tions passed nsder the grant, the grantaa
,A_.OOglC
7U
n SUPRBUE COUBT BXFOKTEa.
Oor. Tnat,
WH <hBrged witb lutlf the total coit. Thla
plui wftB followed uniformlj m to all the
land grants coming' wiUtin the punrlsw of
that proviBion up to the pauage of tha Act
of June 25, 1910, rapra. Of the tenni of
this act It Bufficea to tay in thia connecLion
that it require* tha cost of aurTeTiiig the
S'landa granted" to be depoiited within
■ ninetj'dajH after a demand b; the Secre-
tary of the Interior ipecifjing the amount
required and the landa to be aurveyed. It
malcea no other change in the duty or obli-
gation of the grantee. In other words,
what la to be paid remaina the aame aa
before, but the time for payment ia ad-
Taaced. Following this act Uie officers of
the Land Department adhered to the view
tiiat the cost to be paid waa that of aur-
Teying the granted lands, and continued to
divide the cost of aurveying the township
according to the plan previously adopted,
save as a different courae wai puriued io
this and poBsibly a few other inatancea.
The demand by the Secretary, out of
which this suit arose, relates to the aurrey
of four townships in Arizona, the odd-num-
bered sections of which are claimed by the
plaintiff under the grant of 1866. The
amount specified in the demand la the esti-
mated coat of surveying; thesa townships,
and not a proportional part of the total
coat corresponding to the acreage of the
granted lands. The townships lie opposite
the conetracted portion of the road, and,
speaking generaUy, the plaintiff's right to
the odd -numbered sections is not quea-
tloned; indeed, it is the basis of the Secre-
tary's demand. The townahipa also lie
within the limits of a forest reserve, but
this does not lifect the plaintiff's rights
under the grant, for tha reserve waa estab-
lished long after the road was constructed.
The construction which the officers of the
Land Department placed upon provision of
1676, if not the only permissible one, was
obviously both reasonable and equitable.
Their uniform adherence to it for over
thirty years prior to the Act of 1910 gave
it additional force, and when Congress, with
undoubted knowledge of what had been
done, chose, a" It did In passing that acl^
to leave the terms of the former provision
undisturbed, save as the time for payment
was advanced, the departmental eonstruc-
. ticm received a further sanction which, In
Aeffect, incorporated it into the statute.
7CoDvincing evidencethat Congress took the
same view of the matter aa did the officers
of the Land Department is afforded by the
committee reports on the Act of 1910,
wherein the grantees in the land grants
were spoken of as under an existing duty
"to pay one half tha cost of surveying the
lands within their granted limlta," aad tha
8eeretai7 of tha Interior waa eBoonTaged
to call upon Congreas "for a sufficient ap-
propriation, from time to time, to cover the
government's aftora of the cost of the work
of surveying aa It progressed." See Senate
Report No. 609, Slst Cong. 2d Seea., which
includes the House Report. One of the re-
ports, in evident explanaticai of provisloua
in the act Intended to hasten such surveys,
"It is deemed wise and important that
these lands be surv^ed as promptly aa pos-
sible for various reaaona: first, that they
may become taxable by the states and com-
munities; second, that the government may
dispose of its landa which join the railroad
lands, and In order that where the railroad
lands oeour within forsat reserves — about
3,000,000 acrea of the unsurveyed landa
being in reaervea — the government officials
may be able to determine the boundaries of
the public landa for tha purpose of regulat-
ing and controlling the same, selling the
timber, etc."
Wa conclude that the provision of 18T8,
aa supplemented by the Act of 1910, gives
no warrant for demanding of the grant«e in
a land grant a deposit covering the entira
coet of surveying a township, wherein tha
grantee la entitled to only a part of tha
landa, and that in making such a dranand
of tha plaintiff the defendant plainly ex-
ceeded hia authority. Thus, tha demand
was an unauthorized act, done under color
of office, and the defendant properly may
be enjoined from insisting upon or giving
effect to it, unless it be that there is an
absence of other elements essential to grant*
ing such relief. ^
We think tha other elements are nota
wanting. There>are millions of acres of*
unsurvqred lands vrithin the primary limits
of the unforfeited portion of the grant of
1866. See Senate Report, supra. The plain-
tiff is entitled to many of the odd-numbered
sections within the unsurvi^ed areaa. A
claim anch aa is evidenced by the demand
made by the defendant, unless and until it
is adjudged usauUioriaed, will east a serioua
cloud upon the plaintiff's ri^ta in tli«
granted landa remaining unsurveyed and b«
a source of serious embarrassment. Be-
sides, the Act of 1010 contemplates that
when a demand thereunder is not complied
with the rights of the grantee in the granted
lands specified in the demand "shall cease
and forfeit" to the United States, and the
Secretary shall notify the Attorney Oeneral
in order that the latter may b^n "proceed-
inga to declare the forfeiture" and to rn-
st^re the lands to the public domain. Tha
plaintiff was not required, in order to teat
the validity of the demand, to permit Uta
ninety days to pass and to rely ntirelji
,A_^oogle
lUC
HATTER OF IKSIANA TRAN8P0ETATION CO.
riT
npcm defending maeh mlt m ml^t b*
brought bj the Attornej OeneraL Do the
mattmrj, U the demand waa nnlawfnl, u
we hold it wao, the pUintiS wm entitled
to eue in equity to have the defendant en-
joined frcaa iniisting upon or giving any
«ffect to it. ^e haiard and erobairaMmeiit
Incident to anj other courie were inch ai to
emtitie it to act promptlj and afflrmativelj,
and of courte there waa no remedy at law
that wonld be aa plain, adequate, and com-
plete aa a suit aneh aa thla agaJnat the
defendant.
The plaintiff promptly tendered a depoatt
•f half the amount demanded, but the
tender waa rejected. Aa the granted lands
Muld not, at moat^ be mors than half the
Acreage In the towashipi, and the amount
demanded waa what waa required to lurrey
the entire acreage, the tender waa adequate.
Decree rereraed.
OMU. 8.<Bfl)
IN THE MATTER OF THE INDIANA
TRANSPORTATION COMPANY, P«ti-
ADUIRALTr ^=950— FBOCE88— Necebbitt Or
SEBVICE— AXENDED LiBEL— iKTBODDOIMa
New G1.U11B or New Ci^nunTs.
1. New claims of new cliimanta may no^
without aerrice of proceea, be Introduced by
an amended libel into an existing suit begun
by a libel in personam, letting up a c
of action far a death caused by ttie capaii-
Ing of a vessel, although tbk respondeat has
Appeared in the suit; the new claimants ar*
etrangers and must begin their action by
ierrice of procees just aa It no one had
aned the reapondent.
ADUIBAI.TT C'/ill — Apfeasance — Ab
Waives of Lack or Service of Pbocem.
2. He right of the respondent, who had
appeared in a suit begun by a libel in per-
sonam for a death caused by the capsizing of
a vessel, to object that new claims of new
claimants could not be introduced into the
Buit without service of process, waa not
lost when respondent excepted that it could
not in law In this case be called upon to
answer the amended libel as to additional
libellants, or when, not waiving its previous
exception, which had been overruled, it
again excepted that the court had not juris-
diction over it in respect of the additional
libellants, and that the amended libel did
not state a cause of action against it.
[Bd. Note.— For otbar easea, sea Admlraltr,
Csnt. DiR. gg stg-jm.]
[No. 26, Original-l
ORIGINAL PBrrnON for k Writ of
Prohibition directed to the Judgii of the
District Court of the United States for tha
Northern Diatrict of Illinois, Eastern Divi-
sion, to prevent that court from exceeding
its jurisdiction by permitting new elsJma
of new claimants to be iutrodueed without
service of process by an amended libel Into
an existing suit b^un t^ a libel in peraon*
am, setting up a causa of action for • death
caused by the capiixlng of a veasaL Rule
made absolute.
Tha facts are atated In the opinion,
Messrs. Chsrlea E. Kremer and Bnaadl
Hott in support of tbe petition.
No appearance for respondent.
Mr. Hanr W. Standldge (by apedal
leave) in aupport of the return of rMqpoad*
ent,
Hr. Justice Holmea delivered the opln**
ion of Uie conrt:
The suit In which thU writ of prohibition
ia sought was originslly a libel In personam
against the petitioner, an Indiana corpora-
tion, and others, for causing the death of
one Dawson through the capsizing of the
steamer Eastland in the Chicago river.
The libel was filed on August 21. IQIS. A
citation was served upon an agent of the
petitioner within the district, and tha petl'
tloner Bled exceptions to the libel. On July
24, 1D16, leave waa granted "to oertkin
partiea" to intervene as libellants, and »
citation to respondente not served waa
ordered, returnable the first Monday In Sep-
tember. At this time the petitioner waa
not subject to aervice in the district and
waa not served with process. The "certain
parties" mentioned In the order seem to
have been 373 other libellants, each alleging
a distinct cause of action for death due to
the same accident. The petitioner excepted
that the amended libel was contrary to law
because it joined 873 other libellanta who
had separate causes of action, and also be-
cause the petitioner could not in law be
called on to answer the amended libel as to
additional libellants. Tha exceptions
were overruled and the petiUoner directed
to answer in twenty days from the date of
the order, September 18, 1S16. Thereupon
the petitioner, not waiving its previous ex-
ceptions, on October 7 again excepted that
the court had not jurisdiction over It in re*
spect of the additional libellants, and that
the libel did not state a cause of action
against it. On October 26 this petition waa
filed.
The foundation of jurisdiction la physical
power. If a defendant's body were in
custody by arrest, or a vessel were held by
proceedings in rem, it well might be that
utm elalma would be entertained ajcainat
a>For otber cases see ai
« tepla * Kirr<Mtm8BR ta aU Ker-Mvoibered Dtvaats * Indexes
S7 SUPREME COUBI BEPOEIEB.
Ooi; Tmxm,
the person or against the ship, in addition
to those upon which the arrest tru nuda.
The Oregon, 168 U. S. 186, 210, 39 L. cd.
^943, 953, IS Sup. Ct Kop. 804. But appesr-
Mauce in ansner to a citation does not bring
• a defendant under * the general physical
power of the court. He is not suppoaed,
even by fiction, to be in prison. Convention-
al effect is given to a decree after an ap-
pearance because when power once has been
manifested, it is to the advantage of all
not to inaist upon its being maintained to
the end. Michigan Trust Co. v. Ferr;, 223
V. 8. 346, 3£3, 67 L. ed. 807, B74, 33 Bup. Ct.
Rep. 650. That, however, ia the limit of
the court's authority. Not having anj
power in fact over the defendant unless it
can seiie him ag&in, it cannot introduce
new claima of new claimanta into an exist-
ing suit limply because the defendant haa
appeared ia that suit The netr claimants
are strangers and must begin their action
by service juat as if no one had lued the
defendant before. The Oregon, 158 U. 8.
136, 206, 210, 39 L. ed. 943, 0S2, 953, 16 Sup.
Ct. Bep. 804. W« mnj. repeat with more
/orce concerning defendants what was said
alio intuitu in a Ne? Jersey case cited in
Beynolds t. Stockton, 140 U. S. 264, 263, 36
L. ed. 464, 468, 11 Sup. Ct. Rep. 77S.
"Persons by becoming suitors do not place
themselves for all purpoaea under the con-
trol of the court."
The only question ia whether the peti-
tioner lost its rights by its mode of assert-
ing them; the argument for the respondent
being that the exceptions above mentioned
amounted to an appearance and plea to the
merits, and that tjtus the absence of se^
was cured. But ft is to be remembered
that the motion tor leave to intervene was a
motion in the cause in which petitioner ^■
raady bad appeared. We should not be
aatute to treat recognition that it was in
court as the case stood before the motion,
to let in upon it an avalanche of new claims,
as waiving what it was the prime and only
purpose of the exceptions to prevent The
language of the first exceptions waa not as
explicit aa it might have been, but the ab-
sanee of service seems to us sufiiciently
covered by the words; "Because the above-
named respondent cannot in law, in this
ease, be called upon to answer the said
amended libel as to 373 additionaj libal-
lanta."
a The second exception, still insisting on
$the petitioner's* denial that the court had
■ jurisdiction of It in respect of the new
claims set up, pleaded further, upon the
rule to answer, that the amended libel did
not state a cause of action. But if the
principles of waiver and appearance by
f4eading to the merits are not modified, m »
case where tha defendant already is in
court, it is true at least that when objec-
tions to the jurisdiction have been overruled
the defendant does not lose its rights by
pleading to the merits. Harkness v. Hyde,
OS U. 8. 476, 26 L. ed. 237. The District
Court attempted to exceed it* jurisdiction
and the writ af prohibitioB abould b*
granted.
Kule absoluK.
mtv.M.4a)
PAINE LUMBER COMPANY, Limited,
Gould Manufacturing Company, tha Ik
HcMillen Company, et. al., AppU.,
ELBRIDGE H. NEAL. Individually and as
Secretary and Treasurer of the Joint Dis-
t»ict Council of New York and Vicinity
of the United Brotherhood of Carpent«rs
and Joinei'B of America, and Amalga-
mated Society of Carpentera and Joinera
of America, et al.
MONOPOLIBB «=324<1) — RESTRAIHIirO TlO-
LATiOK OB Sberkah Akti-Txdot Act—
Who Mat Maiktaih Suit — Puv^ra
Party,
1. Concerted action to prevent the UB*
of nonunion-made materials manufactured
in other states, even if a violation of the
Sherman Anti-trust Act of July 2, 1S90 (2A
Stat, at L. 200, ehap. 647, Camp, Stat. 1916,
§ S820), may not be enjoined under § 4 of
that act at the Instance of a private party,
although he may have suffered special dam-
age therefrom. The remedy by injunctioS
is available only to the government.
Tbadb— CoHCEBTED Action to
Peveitt Use of NoitninoN-MADE Ma-
TEUALS.
2. The Federal Supreme Court will not
hold that the usual devices of labor unions
?'ound of an injunction under the New
orb anti-trust laws, in the absence of a
decision of the highest state court to that
effect.
IBd. Nota.^PoT other casni^ see HanapoUei^
Ceat. Dli. I II.)
[No. 24.1
Argued May 8 and 4, 1916. Restored t*
docket for reargument June 12, 1918,
Reargued October 24 and 26, 1918. De-
cided June 11, 19IT.
APPEAL from the United States Circuit
Court of Appeals for the Second Cir-
cuit to review a decree which affirmed a de-
cree of the District Court for the Southern
District of New York, diamisaing the biU
in a suit by private partieB to enjoin cop*
certed action to prevent the nse of dob-
topic ft KBY-NUUBER m all Ker-NlUDtHTwI DlieaU ft Indeias
A^iOOglC
uu.
-PA2HK LIJHBSK €0. t. HEAL.'
Titf
■ntoninada matarlftU nwinif Mttirtd In othar
■tatM. Affirmed.
8m eanu cue belqw, 130 CCA. 022, £14
Ted. B2.
Tha fact* an staUd in the opinion.
Meurs. Walter Gordon HerrfU and
Daniel Daveiiport for appelluits.
Mr. Charles 3IalUand Beattie for Laboi
UtiionB, BppellfflB.
Mr. Frederick Halae for Manufacturing
Woodworkers' Aswdation and Master Car-
penters' Association, appellees.
Messrs. Anthony Gref, Chsrlea J, Bardj,
and Frederick P. Whitaker for appellee
James Elgar, loe.
8
• • Mr. JuHtice HoIidm delivared the opin-
ion of the court;
This is B bill In equttj brought by cor-
porations, of states other than New York,
Oigaged in the manufacture of doors, Bsah,
0tc., in open shops, again at officers and
agents of the United Brotherhood of Car-
penters and Joiners of Americs, and of the
New York branch of the same, certain union
manufacturers of doors, sash, etc., members
of the Manufacturing Woodworkers' Asao-
cistion, and many master carpenters, mem-
bers of the Mastar Carpenters' Association,
whose business is to install such products
in buildings. The bill was dismisaed bj
the district court (212 Fed. 269), and the
decree was affirmed hj the circuit court of
appeals (130 C. C A. 622, 214 Fed. 82).
Tbe bill alleges a conspiracy of the mem-
bers of the Brotherhood and the New York
branch to prevent the exercise of the trade
of carpenters by anyone not a member of
the Brotherhood, and to present the plsln-
Uffs and all other employers of carpenters
not such members from engaging in inter-
state commerce and selling their goods out-
side of the state where the goods are manu-
factured, and it sets out the usual devices
of labor onions as exercised' to that end.
In 1909 the Master Carpenters, coerced by
the pracUcal necessities of the case, made
an agreement with the New York branch,
accepting a previously established joint
arbitration plan to avoid strikes and lock-
outs. This agreement provides that "there
shall be no restriction against the nse of
any manufactured material except nonunion
or prison-made;" the arbitration plan is
confined to shops that nse union labor, and
the employers agree to employ union labor
^only. The unions will not erect material
■ made by nonunion mechanics. * Another
agreement lietween the Hannfaeturing
Woodworkers' Association, the Brottierhood,
and the New York branch, also adopts the
plan of arbitration ; the labor anions agree
that "none of their members will erect or
Install nonunion or prison-made material,"
and the Woodworkers undertake that mem'
bers of the Brotherhood shall "ht employed
exclusively in the mills of the Manufactur-
ing Woodworkers' Association." It la
found that most of the journeymen car-
penters in Manhattan and part of Brook-
lyn belong to the Brotherhood, and that,
owing to their refusal to work with non-
union men, and to employers finding it wise
to employ union men. It is very geueralljr
impracticable to erect carpenter work in
those places except by union labor. It also
is found that, owing to the above provisions'
as to nonunion material, the sate of tha
plaintiffs' goods in those places has been
made leas. He woikmen have adopted the
policy complained of withont malice toward
the plaintiffs, as part of a plan to bring
about "a nation-wide unionization in their
An injunction la asked against the de-
fendants (other than the Master Carpen-
ters) conspiring to refuse to work upon
material made by the plaintiff, because not
made by union labor; or enforcing by-
laws intended to prevent working with or
upon what ia called unfair material; or
inducing persons to refuse to work tor
persons purchasing inch material, or tak-
ing other enumerated steps to the same gen-
eral end; or conspiring to restrain the
plaintiffs' interstate business in order to '
compel them to refuse to employ carpentera
not members of th« Brotherhood. It is
prayed further that the provision quoted
above from the Master Carpenters' agree-
ment and another ancillary one be declared
void and the parties enjoined from carrying
them out. No other or alternative relief
prayed. TOe ground on which the in-
junction was refused by the district court
was that, although It appeared that the
agreements shove menUoned were parts o^
a'comprehensiva plan to restrain cmnmerce?
among the states, the conspiroi^ was not
directed specially against the plaintiffs and
had caused them no special damage, differ-
ent from that inflicted on the public §t
large. The circuit court of appeals, reserve
ing Its opinion as to whether any agree-
ment or combination contrary to law was
made out, agreed with the judge below on
the ground that no acts directed against
the plaintiffs personally were shown.
In the opinion of a majority of the court,
it the facts show any violation of the Act
of July e, 1S90, chap. 647, ZS Stat, at L.
CoRip. Stat. 1918, I B820, a private
person cannot maintain a suit for an in-
junction under § 4 of the same (Minnesota
'. Northern Securities Co. 194 U. S. 48,
TO, n, 48 L. ed. 870, 880, SSI, 24 Sup. CL
Rep. 69S) ; and especially such an injunc-
tion as Is sought; evsn U we should gft
,A_^OOglC
87 SUPBXUE COUBT RSPOBnS.
Oat. 1
bdilnd wlutt Mem! t« have been the view of
both eourU below, tbat no speeial dunage
VRt Bbonn, aad reveraa their coQclusioa ol
fact. No one would maintain that the in-
JtmetloD should be granted to parties not
■bowing epecial injur;^ ^ thenwelvet. Pcr-
■onall7, I lay those questions on one side
because, while the Act of October 15, 1S14,
chap. 323, | 16, 38 Stat, at L. T3Q, 737,
Comp. SUt. IDIQ, S9 SS3Sa, 8835d, estab-
liahea the right of private parties to an
Injunction in proper cases. In m; opinicm
It also establiahea a policy Inconsistent with
the granting of one here. I do not go into
the reasoning that satisfies me, because up-
on this point I am in a minoritj.
Aa this court Is not the final authority
eouoeming the laws of New York, we nay
but a word about them. We ^ajl not
believe that the ordinary action of a. laJwr
onion can be made the ground of an Injunc-
tion under those laws until we are so in-
structed by the New York court of appeals.
National Frotective Asso. t. Gumming, 170
N. Y. 315, 68 LJLA. 136, 88 Am. St. Rep.
t4e, 63 N. E. sea. CerUlnly the conduct
complained of has no tendency to produce
ft monopoly of manufacture or building,
since the more successful it is the more
^eompetitoTB are Introduced Into the trade. '
^Cases like Kellogg t. Sowerby, 190 N. Y.
• STO,*63 N. E. 47, concerning conspiracies
between railroads and elevator companies
to prevent competition, seem to us very
clearly not to have been intended to over-
rule the authority that we cite, and not
to have any bearing on the present point.
Decree affirmed.
Ur. Justice Pltnoy, with whom concurred
Ur. Justice McKcnna and Ur. Justice Tan
DeraDter, dissenting;
Appellants, who were compliinants be-
low, filed their bill in the United States
drcuit court (afterwards district court) in
the month of February, 1011, to obtain an
Injunction against the prosecution of a con-
spiracy to restrain Interstate trade and
commerce in the products of complainants'
woodtrorking mills, and destroy their in-
terstate business by mesne of a boycott.
The Federal jurisdiction was Invoked both
on the ground of diverse citizenship and
on the ground that the action arose under
the Sherman Anti-trust Act of July 2, 18S0,
chap. 647, 26 Stat, at U 209, Comp. StaL
1916, i 8820. Upon the merits the laws
of the state of New York were relied upon,
as well aa the Federal act General Buai-
nesa Law of New York, S 340; Penal Iaw
ol New York, § 580, subd. B.
It was found by the district court (212
Fed. 268, 263, 266) that the defendants were
■ogaged In a combination directly restrain-
ing competition between maaafaetarwa ami.
operating to restrain Interstate comasree,
in violation af both Federal and state acta.
The elrcnlt court of appeals asBUmed this
to be so (130 a C. A. S22, Z14 Fed. 82),
and thers is no serious dispute about It
here. The district court dismissed the bill,
upon the ground that injunctive relief un-
der either statute could be had only at the
instance of the United States or the state
of New York, aa the eaae might be, and
therefore eomplainajits could not have re-|g
lief In this suit; citing National Fireproof-^
ing'Co. T. Mason Builders' Asso. £0 LJLA.*
(N.S.) 148, 94 C. C. A. 636, 169 Fed. 269,
263. The circuit court of appeak affirmed
the decree upon the ground that defendants*
acts were not malicious and not directed
against the individual complHinants pei>-
sonally, and hence relief by injunction could
not be granted, irrespective of whether the
particular combination In question was ob-
noxious either to the common law or to
the statutes. This decision was rendered
on April 7, 1914.
In this court, the prevailing opinion Is
that, although the facta show a violation of
the Shermsn Act, a private person cannot
maintain a suit for an injunction under its
4th section. I dissent from tiie view that
complainants cannot maintain a suit for
an injunction, and I do so not because of
any express provision in the act authoriz-
ing such a suit, but because. In the absence
of some provision to the contrary, the tight
to relief by Injunction, where irreparable
injury Is threatened through a violation of
property rights, and there Is no adequate
remedy at law, rests upon settled principles
of equity that were recognized in the con-
stitutional grant of jurisdiction to the
courts of the United States. I think com-
plainants were entitled to an injunction
also upon grounds of state law; but will
confine what I have to say to the Fedaral
question.
The proofs render it clear that defendants
are engaged In a boycotting combination in
restraint of intestate commerce prohibited
by and actionable under the Sherman Law,
on the authority of W. W. Montague ft Go.
V. Lowry, 193 U. S. 38, *4-i8, 48 L. ed.
608, 611-613, 24 Sup. CL Sep. 307; Loewe
V. lAwlor, 2DS U. & 274, 2S2, et seq., 62 h.
ed. 488, 4S6, 28 Sup. CL Rep. 301, 13 Ann.
Gas. 815; Eastern States Retail Lumber
Dealers Asso. v. United SUtes, 234 U. S.
600, 614, ee L. ed. 1490, 1500, L.B.A.1B16A,
788, 34 Sup. Gt Rep. 951; Lawlor v. Loewe,
235 U. S. 622, 634, 69 L. ed. 341, 348, 36
Sup. Ct. Rep. 170. The proof is clear also
that the conspiracy Is aimed at the property
rights of complainanta In particular; cei^
Uinly that It Is designed to injure directly
D,at,z.d-,.'^-.00'^IC
uia.
FAINi: LUHBEB CO. T. SEAL.
721
u>d drire out of trarineM ft limited «IaH of
tntdetB— the ■o^ealled "nonmiioii'' wood-
!• working mills — to which eomplainaota be*
• long; that oomplcinanta >r« lustiitiing'di-
rect and Mrions injur; through ths cloaing
of tbe channeU df intontate trade to their
producti, — an injary quite diSerent from
that (uffeTed bj ths public In general ; and
that it it a continuing injury not adeqaate-
Ij remediable b; the ordinary action at
law or tbe action for treble damages under
the Bherman Act, and hence is an trrepar-
abla injury in the light of equity. That
there ii no particular animoBity toward!
complainantB aa individualB — aammtng It
to be true — ii, in my view, a matter of
no conaequenca. It evidence of malice be
neCBuary (and I do not think it la), thia
la only in the aenie that maJlca eonaiats
In the intentitmal doing of an unlawful act,
to the direct damage of another, without
Jult cause or excuse. Breunan T. United
Hattera, 73 N. J. L. 729, 744, S L.E.A.
(N.S.) 254, lis Am. SL Rep. 727, OS AtL
lOS, e Ann. Caa. 603.
Fre« acceas to the markets through nn-
obatructed cliannels of commerce ii tbe very
breath of the life of such manufacturing
establish men ts; and to aay that complain-
ants are not specially injured by ths con-
duct of defsndants seems to me to require
that the eyes be closed to the evidence in
the ease and to the familiar facta of com-
merce. I do not understand either of the
oourts below to have held as natter of
fact that complainants were not specially
Injured; but that the district eourt (812
Fed. 207), white finding in fact that com-
plainants were directly injured, reasoned
(erroneously, as I think) that It was not
inch special injury as was contemplated
by certain New York decisions cited.
Section 1 of tbe Sherman Act declarei
that every combination or conspiracy In
reatralnt of trade or commerce among the
several states or with foreign nations is
Illegal, and impoiCi a punishment of flne
or imprismment upon the guilty parties.
It clearly recognizes, what Is well known,
that injury to other traders and competitors
Is the primary effect of such a combination.
^A ri^t of action for damages by a party
b specially aggrieved would have followed by
• implication (Texaa A P. R. Co.'v. Higsby,
241 U. S. 33, 3S, 00 L. ed. 674, 877, 36
Bup. Ct. Rep. 488); and it was doubtless
because treble damages were to be allowed
that an express authorization of suit at law
was included in the act j 7.
The 4th section provides: "The several
drcuit courts of the United States are here-
by Invested with jurisdiction to prevent and
restrsin violations of this aet; and It shall
of the United States, in their respective
districts, under the direction of the Attor-
ney^Oeneral, to institute proceedings in
equity to prevent and restrain such violM
tions," etc. The act was designed to b*
highly remedial, so far as prwentMy rs-
stralnts of trade and commerce is oon-
cerned, and the semicolon in the sentenc*
just quoted indicates, as I think, that Oi»
grant of jurisdiction was intended to im
general, and that the following clause was
intended to impose a special duty upon th«
district attorneys to resort to tliat jurisdic-
tion whenever, in the discretion of the At-
torney Qener^, a public prosecution should
seem to be called for.
Nor is the omission of an express decla-
ration that persons threatened with special
injury through violations of the aet may
have relief by Injunction, of particular sig-
niflcance. Declarations of that character
are rarely met within the legislation of
Congress.! The reason Is not far to seek.
By S 2 of article 3 of the Constitution, the
judicial power Is made to extend to "all
cases, in law and equity, arising under this
Constitution, the laws of the United States,"
ete. This hod the effect of adopting equito-^
ble remedies in all cases arising under theC
•Constitution and taws of the United SUtes*
where such remedies are appropriate. The
Federal courts, in exercising their jurisdic-
tion, are not limited to the remedies exist-
ing in the courts of the respective states,
but are to grant relief in equity according
to the principles and practice of the equity
jurisdiction as established In England.
Robinson v. Campbell, 3 Wheat 212, 221,
223, 4 L. ed. 372, 375, 376; United States
Howland, 4 Wheat lOB, 116, 4 L. ed.
I, SS8; Irvine v. Marshall, 20 How. 6S8,
666, IB L. ed. 9S4, 9SB. In United States
Detroit Timber ft Lumber Go. 200 U. S.
321, 330, EC L. ed. 490, 606, 26 Sup. Ct.
Sep, 282, the court, by Mr. Justice Brewer,
declared: "It is a mistake to suppose that
for the determination of equities and equita-
ble rights we must look only to the statutes
of Congress. The principles of equity exist
independently of and anterior to all Con-
gressional legislation, and the statutes are
either annunciations of those principles or
limitations upon their application in par-
See. 16 of the so-called Gayton Act ol
October 15, 1014, chap. 323, 38 Stat at L.
730, 737, Comp. Stat. 1016, g§ BS.SSa, 88360,
contains such a provision; but this was In-
serted only because some of the Federal
courts had held — erroneously, as I think-
that private parties could have no relief by
injunction againts threatened violations of
the Sherman Act These decisions will Iw
discussed below.
,A_^OOglC
722
S7 SUFREUB COUBT BBPORTEB.
Oct. lant,
' To ipeak accuratelj. It la not the statute
that givea a right to relief in equity, but the
fact that in the particular caw the threaten-
ing efTects of a continuing Tiolation of the
statute are euch as only equitable proceoi
can prevent. The right to equitable reliel
does not depend upon the natuie or source of
the Bubfitantive right whoM riolation la
threatened, but upon the conaequence* that
will flow from ita Tiolation. Am the court,
by Mr. Juatice Field, declaxed in Holland t.
Challen, 110 U. B. 16, 26, 23 L. ed. S2, 6fl,
3 Sup. Ct. Sep. 406: "If the coutroTeray
be one in which a court of equity only
can afford the relief prayed for, i^ Jurisdic-
tion is unaffected by the charaetxr at the
queetioni involTed."
To take a familiar example: ^e Oon-
■titutioti of the United Statei does not de-
clare in terms that infringements of the
rights thereby secured may be prevented
by injunction. Ordinarily they may not
be. It is only where a threatened infringe-
ment will produce injury and damage for
which the law can afford no remedy — such,
k*for instance, as irreparable and continuing
• damage, or a*multiplicity of auite — that
resort may be had to equity; and when
this does appear, the right to an injunction
arises because that is tjie only appropriate
relief. Osbom t. Bank of United States,
B Wheat. 738, 638-846, S L. ed. 204, 228,
229; Pennoyer t. McConnaughy, 140 U. 8.
1, 12, 18, 35 L. ed. 363, 366, 36S, 11 Sup.
Ct. Kep. 690; Fargo t. Hart, 193 U. S. 490,
603, 48 L. ed. 761, 767, 24 Sup, Ct Rep
498.
So, Ux lawi rarely. If over, oontaln ex-
press authorization of an injunction to re-
strain illegal taxea. And a suit in equity
wiH not lie on the mere ground that a tax
la illegal. But if, in addition, enforcement
of the tax would lead to a multiplicity of
suits, or producB irreparable injury, or if
the property taxed is real estate and the
tax throws a cloud upon the title, equity
will interfere by injunctlca. Dows v. Chi-
cago, 1] Wall. IDS, 112, SO L. ed. 6S, 67;
Bannewinkis y. Georgetown, 16 Wall. C4T,
81 h. ed. 231 ; Union P. R. Co. t. Cheyenne
(Union P. R. Co. v. Ryan) 113 U. S. 616,
625, 28 L. ed. 1098, 1101, 6 Sup. Ct. Rep.
601; Pacific Exp. Co. v. Seibert, 142 U. S.
S39, 343, 3S L. ed. 1035, 103S, 3 Inters.
Com. Rep. 810, IS Sup. Ct. Rep. 250; Ogden
City T. Armstrong, 168 U. B. 2Z4, 237, 42
L. ed. 444, 461, 18 Sup. Ct. Rep. 98; Ohio
Tax Cases, 232 U. S. ST6, 687, 68 L. ed.
7S8, 743, 34 Sup. Ct. Rep. 372.
The fact that the threatened inraalon of
plaintiff's righto will amount at the same
time to an offense against the criminal laws
l> no bar to relief by injunction at the in-
stance of a private par^. Sa Debt, U8
U. 8. 664, 693, 39 L. ed. 1002, 1106, U Sup.
Ct Rep. 000.
I find nothing in the letter or policy of
the Sherman Act to exclude the application
of the ordinary principles of equity, recog-
nixed in the constitutional grant of juriedie-
tlon. Applying them to the facte of the
present case, appellants are entitled to an
injunction to featrain the threatened, con-
tinuing, and Irreparable injury and dam-
age that otherwise will result from defend-
anU' violation of the act.
The special duty imposed upon the Attor-
ney General and the district attemeya ia
not inconsistent with this view. The field
to be covered by such poblie pToaecutioos,
and the objecte sought thereby, are quite
different from the aeope and effect of an in-
junction granted to a private par^ threat-
ened with specisl and irreparable injury?
to'bis property righto through a violattona
of the act Ha proceeding by the district
attorney la a kind of equitahle quo war-
ranto, calculated to bring the entire com-
bination to an end, whether It be in the
fonn of a corporation or otherwise. But
there may be and are eaaee of direct and
irreparable Injury to prlnto parties re-
sulting from violations of the act not cap-
able of being redressed throu^ aetions «t
law under J 7; and justice to the parties
aggrieved requires that the act be conatrued,
if the language admite of such a eonstnto-
tion (and I think it does), so as to allow an
injunction to prevent IrreparaUe injury to
a private part^, otherwise remedileaa, with-
out going to the extent of dissolving the
combination altogether, which In stmie rases
might not be a matter of pnUie intereto or
Impcrtanea. Unleas so construed, the act
must operate in many Instancea to deprive
parties of a right of injunction that th^
would have had without it So t»r, at
least, as boycotting eombinaUona are con-
cerned,— and this case is of that character,
— the act ereatea no new offense and gives
no new right of action. Temperton v. Rus-
sell [1893] 1 Q. B. 71S, 62 L. J. Q. B. N.
S. 412, 4 Reports, 376, 60 L. T. N. 8. 78.
41 Week. Rep. 605, 67 J. P. 676; Quinn
V. Leathern [IBOll A. C, 405, 1 B. R. C.
197, 70 L. J. P. C. N. B. 78, 06 J. P. 708,
fiO Week. Hep. 130, 86 L, T. N. 8. 289, 17
Times L. R. 749; Barr t. Bssez Trades
Council, 63 N. J. Eq. 101, 112-121, 30 AU.
681; George Jonas Glass Co. v. Glaaa Bot-
tle Blowers' Aseo. 77 N. J. Eq. 210, 226,
41 LJt.A.(N.a) 448, 7S AU. 202.
I find no oentrolUng decision in tills court
Minnesota v. Korthem Seenritiea Co. 194
U. 8. 48, 71. 48 L. ed. 870, 881, 24 Bnp.
Ct. Rep. 698, is not an antliority against
th* ri^t of ooroplainante to an InjmHitMMi
,A_.OOglC
ISIO.
PAZHl LUUBER CO. T. HZAL.
128
to pravmt tpedd and Irr»pftraU« ianagt
to their property rigiita thTon^ • -riola-
tion of the Sherman Act; the effect of that
decision being merely to ieaj relief bj
iujunctioQ to indiTidnale not directly and
■pecially injured. There the gtste of Minne-
*ota Bued in one of Its own courts under
eertaia statutes of its own, as well as nnder
the Sherman Act, and the case was remored
to the United Statei circuit court as being
Sone arising under the Constitution and laws
7of the United States. The purpose of'the
suit was to annul an agreement and sap-
press a combination alleged to exist between
the defendant railroad corporations; and
the only threatened injury because of which
an injunction was prayed was that the
state, being the owner of large tracts of
land whose value depended upon free and
open competition over the lines of railway
involved in the combination, and being the
owner of certain public institutions whose
supplies must, of necesaity, be shipped over
the same railways, it was alleged that the
■uecessful maintenance of these institutions
as well as the performance by the state of
tts governmental functions depended largely
upon the value of real and personal proper-
ty litoste within the itat* and the general
prosperity and business success of Its citt-
cens, and that these in turn depended upon
maintaining free and unrestricted competi-
tion between the railway lines involved.
He court, by Mr. Justice Harlan, said (p.
70) that the threatened injury was at most
only remote and indirect, and such as would
come alike, although in different degrees,
to every individual owner of property In
« state by reason of the suppression of free
competition between interstate carriers, and
was "not such a direct, actual Injury as
that provided for in the 7th section of the
statute;" and that upcm the view contand-
•d for, "every individual owner of property
in a state may, upon like general grounds,
by an original suit, irretpeotivt of any
tftreot or special injury to Mm [Italics
mine], invoke the original jurisdiction of
a circuit court of the United States, to
restrain and prevent violations of the Anti-
trust Act of Congreas." It was said further
(p. 71] .- 'Taking all the sections of that
act together, we think that its intention
was to limit direct proceedings in equity
to prevent and restrain tucA violation* of
the Anti-truit Act as oaute injury to t\a
fmeml fwftlio, or to aR aliJtv, merely from
the tuppreinon of competition in trade and
gfonunerce among the several states and with
7foreign nations, to Ihote i7tttituted*in the
mame of tk« United Statc«. . . . FoMibly
the thought of Congress was that, by such
a limitation upon suits in equity of a
general nature^ to restrain violations of
the act, WretpeeHve vf any Hreet injury/
nutain^ by partioulw pwsont or corpora-
tiont, intaTstat« and international trade and
oommerc* and those carrying on such trade
and commerce, as welt as the general busi-
ness of the country, would not be neediesa-
ly disturbed by snits brought, on all sides
and in every direction, to accomplish im^
proper or specnlative purposes." [Italics
mhie.] The reasoning manifestly proceeds
upon the assumption that individuals sus-
taining direct and irreparable injury
throi^h a continuing violation o( the act
would be entitled to an injunction.
D, R. Wilder Mfg. Co, v. Corn Product*
Raf. Co. 236 U. S. 1S5, 174, ITS, 59 L. ed.
520, 526, see, SS Sup. Ct. Sep. 398, Ann.
Cas. IQISA, 118, Is not in point. There
plaintiff In error, which had purchased,
received, and consumed goods from defend-
ant In error, defended a suit for the pries
upon the ground that defendant in error
waa an ill^t combination in violation of
the Bhermau Act, and therefore could not
sue to reoDver for goods sold with direct
reference to and in ezecation of agreementa
that hod for their object and effect the
accomplishment of the illegal purposes of
the combination. The court held that an
individual could not defend a suit brought
against him on hia otherwiee legal contrad
by asserting that the corporation m- com-
bination suing had no legal existence bo-
cause of ita violations of the act, the statute
having cast upon the Attorney General of
the United States the responsibility of en-
forcing its provisions in that regard.
He question whether private parties
threatened with injury through violations
of the Sherman Act might (prior to the
Clayton Act of October 15, 1914, chap. 323,
S 16, 38 SUt at L. 730, 737, Comp. Stat.
1B16, Si BSSSa, 8836o) have relief by in-
junctitm Is one upon which the lower Fed<
eral courts are not in accord. In the pres-
ent ease, the district court, in dismissingS
the bill upon the 'ground that relief by*
Injunction might be had only at the in-
stance of the United SUtes (212 Fed. 269,
266), merely'cited and relied upon Nation-
al Fireprooflng Co. v. Hason Builders' Asso.
26 L.R.A.(N.S.) 148, 94 C. C. A. S35, 169
Fed. 2S9, 263. That case was decided upon
the authority of Greer, U. k Co. v. Stoller,
77 Fed. 1, 3, and Southern Indiana Exp. Co.
T. Unitod States Eitp. Co. 88 Fed. 659, 663.
Beference was made also to E. Bement ft
Sons v. National Harrow Co. 189 U. S. 70,
S7, B8, 46 L. ed. 1058, 1067, 1068, 22 Sup.
Ct. Hep. 747, where the point was astamed
arguendo; Post v. Southern S. Co. 103
Tenn. 184, 828, 55 L.R.A. 481, 62 S. W.
301, where it was ruled on the authority of
86 Fed. 407 aad 88 Fed. 660, 663; and
.A^iOOglC
7M
ST 8UPBKUE COUST SEPOBXKE.
Oot. Tmt.
tlis rolloDing CMes In tli* Federal conrta:
Bllndell r. Hsgui (C. C.) 54 Fed. 40, 41)
EagUL r. Bllndell (U C. A.) S C. C. A. 86,
13 U. S. App. 364, se Fed. 696; Pidcock
T. Harrington (C. C.) 64 Fed. B21; Gulf,
C. ft S. F. R. Co. T. Uiami 6. S. Co. (C. C.
A.) 30 C. C. A. 142, 52 U. S. App. 732, 86
Fed. 407, 420; Block v. SUndard BiBtlUing
A Distributing Co. [C. C.) 96 Fed. 978; and
Metcalf T. Americut School -Furniture Co.
(C. 0.) IDS Fed. B09. An examination of
these cases (including Greer *. Stoller and
Southern Indiana Exp. Co. r. United States
Ezp. Co. supra) discloses that BUndell v.
Hagan, 64 Fed. 40, 41, is the source from
which all the others derive the onlj au-
thority they have for the doctrine that,
under the Sherman Act, the remedy by in-
junction was available to the government
only. But one or two of the cases contain
any reaeoning upon the question, and that
is meager and unsatisfactory.
Moreover, to far as these cases have held
that private parties could have no injunc-
tion for a violation of the Sherman Act
(some of tliem have not so held), the real
ground of decision in Blindell t. Hagaa
was misunderstood. In that ease the ju-
riadietion of the Federal court was invoiced
upon the ground of the alienags of com-
plainants, defendanta being dtiKent of the
state of Louisiana, and also upon ths
^ground that defendants were engaged in a
|BeombinatiQn In rpitraint of trade between
« New Orleans'snd Liverpool, c(»]trary to the
prohibition of the Sherman Act. The cir-
cuit court, in declining to allow an Injunc-
tion under the act, said: "HiIs act makes
■11 combinations In restraint of trade or
commerce unlawful, and punishes them by
fine or imprisonment, and authorizes suits
at law for triple damaf^s for lU violation,
but it gives no new right to bring a suit
in equity, and a careful study of the act
has brought me to the conclusion that suits
in equity or injunction suits by any other
than the government of the United States
are not authorized by it." Evidently this
was Intended to be confined to the question
of an express authorization of an injunc-
tion for a mere violation of the act, for
the court proceeded to grant preventive re-
lief on the ground that there was Jurisdic-
tion because of the citizenship of the parties,
and that under the ordinary equity juris-
diction an injunction should issue because
of the threatened irreparable Injury and
the inadequacy of pecuniary compensation,
and in order to prevent a multiplicity of
suits. Upon appeal the decree was affirmed,
upon the grounds expressed fay the court
below (6 C. a A. ee, 13 U. S.'App, 364,
66 Fed. 606). Since there was no infringe-
ment of complainants' rights except through
a eombination in restraint of foreign trade>
as to which manifestly the Sherman Act
furnished the exclusive rule of law, the
eSeet of the decision is to allow an injuno>
tion to one injured throu^ a violation <rf
that act if he show In addition the ordinary
grounds for resorting to equity, such na tha
probability of irreparable mischief, the in-
adequacy of a pecuniary eompenaation, or
the neoesaity of preventing a multitude of
So, in Bigelow v. Calumet ft "H. Hin.
Co. (C. a) 166 Fed. 869, 876, the court,
after reviewing the previous deiuuona, de-
clared (p. 877): "They do not commend
themselvea to my judgment ao far as th^
deny the right of a private |>arty, who
has Buatained special Injury by the viola-S
tion of the Anti-trust Act, to relief by*lii-7
junction under the general equity jurisdio-
tion of the court. Aa already seen, the case*
referred to do not generally announce sod
Aside from their righta under the Act oi
1890 [26 SUt. at L. 209, chap. 647, Comp.
Stat. 1016, i 8820], I think appeUanta ar«
now entitled to on injuncticm under | 16
of the Clayton Act, — tlte coae clearly being
within the terms of the section, — notwith-
standing the act took efl^ect after the final
decree in the district court. In an equity
suit for injunction the reviewing court
should decide the case according to the law
as It exists at the time of ita decision.
Thia is not giving a retrospective eSect to
the new statute, for the relief granted oper-
atea only in futuro.
The suggestion, in behalf of defendanti^
that S e of the CUyton Act* establishes m.
policy inconsistent with relief by injunction
in such a case as the present, by making
legitimate any acta or practices of lalxw
organizations or their members that werw
unlawful before, la wholly inadmissible.
The section prohibits restraining members
of such organizations from "taui/itlly canr-
ing out the Ugitimatt objects thereof."
What these are is indicated by the qualify-
ing words: "Instituted for the purpose of
mutual help, and not having capital stock
» "Sec. 6. That the labor of a h
is not a commodity or article of o
Nothing contained in the anti-trust laws
shall be construed to forbid the existanc*
and operation of labor, agricultural, or
horticultural organizations, instituted for
the purposes of mutual help, and not hav-
ing capital stock or conducted for profit,
or to forbid or restrain individual membera
of such organiiations from lawfully carry-
ing out the legitimate objects thereof; nor
shall such organizationa, or the membera
thereof, he held or construed to be illegal
,A_.OOglC
yAIJ>EZ T. UNITED STATES.
729
<ff eondueted for proAL" But tlisM vre pro-
tected onlj when "lawfully carried out."
The Mction aafeguards ttteee organizationa
while puTHuing their UgiUmaU objecte bj
tawfttt mean*, and preventa theni from be-
ing ceneidered, merely beeaiua organlud,
^to be illega.1 combinationi or conapiraeiet in
^reatraint of trade. The Kction, fairly eon-
• atrued, haa'no other or further Intent or
meaning. A reference to the legialatlTa
history of the meaaure eonSrma thii view.
House Rep. No. 627, 63d Cong. 2d Seaa. pp.
E, 14^16i Senate Rep. No. 698, 68d Cong.
Ed Seaa. pp. 1, 10, 46. Neither In the lan-
gnage of ths tection, nor in the eommittea
reports, is there any indication of a pnr-
pOM to render lawful or legitimate anything
that before the act was unlawful, whether
la the objects of such an organlcation or ita
memlrars or in the meaaurea adopted for
■ccompliBhing them.
It ia altogether fslUdoua, I think, to tay
that what ia being done by tha present de-
fendants is done only i^ the pnrpoae of
strengthening the onion. Conceding this
purpose to be lawful, it does not justify or
excuse the resort to unlawful meaaures for
Its accomplishment. A member of a labor
nnion may refuse to work with nonunion
men, but Uifa does not entitle him to threat-
en manufacturers for whom he ia not work-
ing, and with whom he hM no concern,
with loss of trade and a closing of the chan-
nels of interstate commerce against their
products if they do not conduct their busi-
ness in a manner satisfactory to him.
And the suggestion that, before the Clay-
ton Act, unlawful practices of this kind
were usually and notoriously resorted to
fay labor unions, and that for this reason
Congress must have intended to describe
them as "legitimate objeeta," and thus ren-
der lawful what before was unlawful, is a
libel upon the labor organizations and a
■erious impeHcbment of Congress.
Nor can I find in g 20 of the Clayton Act
anything interfering with the right of com-
plainants to an injunction. It refers only
to casea "between an employer and em-
ploy eee, or between employers and em-
ployees, or between employees, or be-
tween persons employed and persons seek-
fing employment, involving, or growing
out of, a dispute concerning terms or
• conditions of employment." ■ These words
ovidently relate to suits arising from strike*
and similar controversies, and the commit-
tee reports upon the bill bear out thia view
of the scope of the section. But this Is not
•uch a suit. Tliere is no relation of em-
ployer and employee, either present or pros-
pective, Ijetween the parties in this case.
Defendants who are employees are in one
branch of industry In New York city; com-
plainanta are employers of labor In another
branch of industry in distant states. Nor
is there any dispute between them concern-
ing terms or conditions of employment.
Section 20 prohibits an injunction restrain-
ing any person "from eeaaing to patroniz*
or to employ any par^ to aweh dMpuf*,
or from recommending, advialnK or per-
auading others by ptae^til and lamfvl
means wo to do; , . . or from peaceably
assembling w • lois/ul Momter, and for
lawful purpoMe*; or from doing any act or
thing v>ki«h vUght iMofvilj/ be ioite •• tht
ah««NM of meh dupuU by any party ther»'
to."
Clearly, this proridon ia limited to the
partidpanta in « diapate of the character
just Indicated. And, quite aa clearly, only
"lawful" meamrea are sanctioned, — that i^
of eonrae, meaaurea that were lawful beforo
the act. There Is no grant, in terma or by
necessary Inference, of immunity in favor
of a boycott of traders in interstate com-
merce, violative of the provisions of tht
Sherman Act, to which the Clayton Act !■
■upplementaL
Ur. Justice HcReynolds also disaenta.
UNITED BTATEa
Canniiu, L&w *9608<B} — Dvidkhok —
WBiaHi^-TEsmiOHY or Self-Co hfemm>
ACCOUPUCB — GOITTBADIOTOKT STAH-
1. The testimony of a self-confessed, ee-
tive, hired accomplice as a witness for tha
prosecution on a trial for homicide is not
to 1m disregarded because, while flrst testi-
fying to the guilt of defendant, he, by a
subsequent statement, retracted the accusa-
tion, and later retracted the retraction, but
his testimony is to be judged by confirming
or opposing circumstances as welt as by his
character and Uie Influences that invest
him.
[Bd. Nota.— For other bshSu sts Criminal IjSW.
Cent. DIE, I mi.]
Criuiical Law ^=>S11(1) — Btidercx —
WEIOBT — COEROBOHATIOH OF AOCOH-
2. There was sufficient corroboration of
the testimony of a self-confessed, active,
hired acoomplice as a witness for the proae-
cntion on a trial for homicide to sustain a
verdict finding defendant guilty, notwith-
standing the well-nigh incredible character
of his testimony, and his various repudia-
tions and retractions, where the evldenco
shows such mental and social interiorly at
to render him eaally pnrchaaabia by defend
«s9Ftir oUiar CI
■• tople « KBT-NUUBBR la oU Key-Nambaraa IM«wla « ladeaei i
r eUPB£UB COURT BBPOSTEB.
OCT. '.
knt, uid defendant !■ •hown to have enter-
tained % fixed enmity to tlie deceated.
[BU. Note.— For dUmt OMI, m* Criminal Law,
Crat. DlK. I UI8.1
sence of the accuBed himself, did not in-
friuge the rigM to "meet the witnesaeB face
to face," aecured to an accused by the Act of
July 1, 1002 (32 Stat, at L. SOZ, chap.
ISSEI), g 6, enacting a Bill of Right* for
the Philippine lalandfl, where the judge, in
his inspMtion of the scene, wa« not im-
properly addreatad by anyone, and did no
more ttian viaualiie the teatimony of the
vitnessei.
[Bd. No(e.~For otiur ouea, bm Criminal Law.
Oml DiB. H n iin.i
[No. 30].]
JN ERROR to the Supreme Court of the
Philippine Islands to rerlew a judgmeot
which affirmed a canviction of homicide
rendered by the Court of First Instance of
tlie Province of Nueva Ecija. Affirmed.
The facts are stated in Uie opinion.
Uessrs. Tlmottay T. Ansberry and
Challen B. Ellis for plaintiff in error.
Solicitor General Davis and Assistant At-
torney General Warren for defendant in
s.
Mr. Justice HoKenna dellrered the
•pinion of the conrti
Valdea was proceeded against by oem-
plaint undertbeproeedure.ofthePhfllpplne
Islands for the crime of murder. It was
eircumBtantially described as baring been
committed by Valdez and one Francisco
Amante and one Juan Gatnaltan, tbe latter
having been induced by Valdei "by reaaoa
of a promise of rewud" (900 peaoi)
■hoot one Enseblo Yuson with a ibotgnn
furnished by Amante, inflicting nine mortal
wounds, instantly killing Yueon.
lliere was a demurrer filed to the
plaint which need not be noticed. Upon tlie
trial of Valdez and Amante, after pleas of
not guilty, the court in an opinion circum-
stantially reviewed the evidence and found
Amante not guilty, "for insufficiency of
evidence." Valdez was found guilty "Y^-
yond a reasonable doubt." He was
sentenced to the penalty of deatb and to In-
demnification of the family of the deceased.
At a separata trial Gatmi^tan was also
found guilty and sentenced to Imprisonment
for life.
There was a motion Ua rehearing which
was denied.
Valdes and Qatmaltan took separate ap-
peals to the supreme court of the Islands,
but, according to the statement of the cour^
at the request of counsel, the appeals were
"heard and considered together, in order to
give counsel for the defense an opportunity
to develop any inconsistencies or contra-
dictions which might appear as a result of
a critical analysis and comparison of the
evidence of record in both cases."
Thn judgment against Valdes waa^
affirmed; that against Gatmaltan was modi-^
fled by the substitution of death fot*1ife>
imprisonment. Two of the judges dia-
sen ted, one thinking that the "accused,"
not designating him (presumably Valdez),
entitled "to an acquittal on the facta
nited;" the other being of opinitm that
the prosecution had "not proved the guilt of
appellants <d the crime of which they were
convicted,"
He'cASe is here upon a writ of error sued
out by Valdez, and the questions presented
are, to quota counsel! (1) Whether the
absenoe oi the accused during a part of the
prooeedings ik the trial constitutes an error
requiring reversal, and (2) whether there
was any evidence adequate to warrant the
conviction.
The second qnestion may be disposed of
first. A negative answer is urged upon a
consideration of the credibility of the wit-
nesses, the relative probative strength of
their testimonies, their mental and moral
defects, the various statements of Gst-
maitan, I>eing a witness for the prosecution,
first testifying to the guilt of Valdez and
by subsequent statement retracting the ac-
cusation, and later retracting the retraction,
and an asserted absence of motive for the
He elements of these contentions were
passed upon by the lower courts and the
guilt of Valdez and Oatmaitan determined.
It ordinarily would be enough to say that
there waa Justification for the deter-
mination ; but lest it may be supposed Uiat
the guilt of Valdez depended nlone upon the
testimony of Gatmaitan, he having Iieen an
active accomplice in the homicide, some
comment becomes necessary and at least a
characterisation of the evidence.
Gatmaitan's testimony was, of course, an
important factor, but it had substantial
corroboration. He was shown, it is true,
to be a low type of man. One who becomes
for hire, as be did, the criminal executor of
another's malice, is usually such. No other
would accept the shameful service. But^
it is not reserved tor this case to malce s^
vovel contribution to the criminal eipe-<
rience of the country, or to demonstrate that
there are such bireri and hirelings; and
When- the hireling turns state's evidence, as
as sM sanetovie * KBS-HDIIBBR In air K«r-Niunb«r«d Diswts * Indeua
lOlB..
VALDBZ t. UNITED STATXS.
727
Im ■ometimM doei, <x hit weaknMi, awed I7
Iha penaltiee of hU crime, breaks 'down and
confeBsea, as it sometimes does, or Im
changes or qualifies or retracts, a« be some-
times (]oes, as hope or interest or lear awajs
him, his testimony or conleESion. is not to
be Bummuril; discarded, but to be judged
of by confirming or opposing circumstances
as well as bj bis character and tba influ-
ences tliat may invest him. And it wm such
judgment the two lower court* exercised;
it is sucli judgment in our turn that we are
required to exercise. This record, indeed,
sbtnvB that the character and characteriBtica
of Gatmaitan, his mental and social in-
feriority to Valdez, made him facile to
Valdei's solicitation and a purchasable
agent for Vatdez's purpose. And Valdei
was Ehown, independently of Qatmaitan's
testimony, to have had a purpose, — a fixed
enmity to Yueon, engendered in a emtro-
versy over certain water rights. lu gratifi-
cation of it he carefully planned the crime,
set its time and place, procured its Weapon,
gave the weapon to Gatmaltan, and hired
a scout to observe the moments of Yuaon
and report bis approach. The service was
exactly performed, and upon Us approach
occurred the tragedy,
VuBon waa shot In the back and Instant-
ly killed aa he was entering his home; and
the crowning horror of it was that it was
done in the hearing and almost In the
preaence of his wife, even as she was speak-
ing to him and moving to meet him.
Such la the outlins of the crime. And
crime it was. There is no dispute about
that or the manner of execution. Valdez,
aa a witness in his own behalf, denied
participation In it or precedent knowledge,
and attempted to prove an alibi. His
^denial was not believed, his alibi decided
Jnot to have been established. It cannot be
■ held, therefore,* that his conviction was not
' mistained by the evidence, and the aentenee
Imposed upon him not justified, even though
Its doom be death.
Upon the other question the record ihows
thia: Gatmaitan was a witness for the
prosecution. He related that he was
employed by ValdeK to kill Yuaon for BOO
pesos, given him, Gatmaltan, for that pur-
pose, and that he shot Yuson aa YuBon waa
approaching his (Yuson's) houie— Valdet
assisting him, Gatmaitan. Indeed, Gat-
maltan testified that Valdez ordered him to
shoot, but that the gun would not go off,
and Valdez showed him how to shoot — "and
right at that moment the gun went ofi*."
Gatmaitan further testified that he and
Valdez located themselves "in a fence near
the staircase" of Yuson'a house, and from
that location fired the shot.
', TbtT* waa other testimony, as wo have in-
dicated, and distances of objecU from oam
another were testified to.
At the close of the testimony the prose-
cuting attorney aaked the court to visit "the
place of the occurrence In order to make
there an inspection so that the court may
judge the distances." One of the counsel
for the defense assented, saying: "Yes: wa
do not abject, so Uiat the court may see."
Another counsel for the defenaa called for
the "motive" of the prosecution in asking
"for the ocular inspection." It was replied
that its object was to enable the court to
obtain a correct idea of all the distances in
connection with the assassination of the
deceased, aa well as, of the places where the
witnesses for the prosecution found them-
selves and where they talked together.
And further, "We want that done in order
that everything may be clear." To which
counsel for the defense replied that he had
on occasions been present at ocular in-
spections and that testimony was taken
which produced confusion, and, further:
"What I wish, with the consent of the
prosecuting att«raey. Is that an inspection
be made there, but that no testimony b«8
place of the c
Tho prosecuting attorney, however,
thought It advisable not to dispense wlUt
such testimony or take from the court its
discretion, "so that when the court arrives
there it may ask all unknown persons where
the deceased fell, where the wad was found,
where Gatmaitan was, and where Uateo
Arcilla was." All of which opposing coun-
sel thought had been already proved.
The court expressed Its wHlingnesa to
make the Inspection, as the result would b«
evidence for both parties after the defense
had produced its rebuttal testimony, and
upon the defense announcing that it had
no rebuttal testimony, the case was closed.
The court made the Inspection; Valdei
was not present, but his counsel were. There
is an opposition of afSdavlta submitted upon
a motion for new trial. Those submitted by
defendant (three of which were In almost
exactly the same words] averred that the
persons making them were present at the
inspection by the court and saw the judge
examine the various paints at the scene al
the crime and the point where Gatmaitan
stood when he fired the murderous shot.
That they also saw the widow of the de-
ceased show the manner in which her
huel)and fell, — she illustrating, — and that
she ateo told the judge "certain facts which
happened at the time of the murder." That
they also saw Captain Crockett, of the aoa-
stabulary, point out to the judge the places
In the stairway and in the house where tha
,A_.OOglC
728
S7 SDPEElfE OOUBT BEPORTEB.
Oct. :
■bot had penetrated, and uw Um walk witli '
the judge and foint cut t« him certain
streeta and hvoaei connBCted trith the eaae,
and bIbo saw the judge and such c^cer and
the Httoriie}rB in the caae and other persona
examine other place*.
One of ths coiuimI for the defenM also
filed an affidavit. It averred that tha judge
J went to the acene of the killing, accom-
panied bj the attomeja for both sides, but
• thatmeither Valdei nor his attom^i were
consulted by the judge as to whether or not
Taldes desired to accompany the court.
That the widow of the deceased "explained
to the judge many occurrences which she
claimed to have taken place on the night of
the killing, what she claimed to have said
to the deceased juat prior to the killing and
Illuatrated how and where the deceased
had fallen, and diacnsaed maoy other mat-
ters in connection with the case, during all
which times she was crying and wringing
her hands in grief." That Captain Crockett
was charged by at least one witness as being
an ofllcial "of a body which had forced and
intimidated" the witness to give false testi-
mony against Yaldez. That Captain
Crockett pointed out bullet marka to the
judge, pointed out where the shot was fired
as indicated by Gatmaitan, and made other
statements to the judge that Gatmaitan
had made to him "as to other circumstances
of the case." That Captain Crockett walked
through the streeta with the judge and
pointed out to him Tsrioua objects which
had been referred to during the trial, part
of the time being alone with the judge.
That Captain Crockett diacusaed distances
between ohjecta, giving his opinion of the
same, and particularly the distance from
the house of the deceased to the house of
Valdex, and told the judge in that ccmnec-
tion that he had measured such distance
with a " 'apeedometer" on his motorcycle."
That during the inspection the affiant made
objections as attorney for Valdez as to the
conduct ef the widow and Crockett, but
thcj were allowed to continue their cou-
Teraations with the judge.
These affidavits were distinctly and cir-
cumstantially contradicted by affidavits,
accompanied by photographs of the posi-
tions of the judge and the persons involved.
One of the affidavits waa by Captain Crock-
ett and two of them were by the attorneys
who prosecuted the case, both of whom
were present at the inapection and in such
S relation to It a* to know what occurred.
? 'The supreme court, in paaaing upon the
motion, aaid: "A careful examination of
these affidavits end the counteraffidavita
filed by the appellee satisfies us that noth-
ing more than inapection of the scene of the
murder was made hj the trial judges uid
tliat BO evidence whatever was taken oo
that oeeasioDi and we are of opinion that,
under all the circumstances, there was no
violation of the eonstitutional right of the
priaoner to be confronted with the wit-
nesses. People T. Thorn. 168 N. T. 286,
42 L.R.A. 368, 50 N. E. 947, and the case*
cited in the extended note in the annotated
Such being the record, wa must assume
that the judge. In his inspection of the
scene of the homicide, was not improperly
addressed by anyone, and, in the preaencs
of counsel, did no more than visualize the
testimony of the witnesses, — giving It a cer-
tain picturesqueness, it may be, hut not
adding to or changing it. It would ba
going a great way to say that the require-
ment of the Philippine Code, carrying the
constitutional guaranty to an accused to
"meet the witnesses face to face," was vio-
lated and could not be waived. And wo
think practically Valdez*s presence waa
But, aside from any question of waiveTr
It would be preaeing the right of an ac-
cused too far and Diaz v. United States
223 U. a. 442, SB L. ed. 600, 32 Snp. Ct.
Rep. 260, Ann. Cas, 1013C, 1138, beyond
its principle to so hold. As well might it
be said that an accused is entitled to lie
with the judge in his meditations, and that
he could entertain no conception nor form
any judgment without such personal pres-
The judgment should not be reversed
upon a mere ahatraction. It la difficult to
divine how the inspection, even If the affi-
davits of the defendants should be taken
at their face value, added to or took front
the case as presented.
It follows that the judgment of the Su-
preme Court must be and it is affirmed.
*Mr. Justice Clarice, dissenting: ?
I greatly regret that I cannot concur In
the opinion of the court In this case, and
the fact that the decision must cost two
men their lives Impels me to state, as
briefly as I may, my reasons for dissenting
from It.
We have before ns the record only In
the case of Gmilio Valdes.
Valdez is described in the opinion of tho
trial judge as "a highly educated man and
very prominent both on account of his
social standing and his wealth;" and bj
the supreme court as "a recogniied leader
of an active political faction and a member
of one of the richest, most powerful and
influential families in the community."
He was convicted of lying concealed wllb
another and of shooting. In the early even-
ing, one Euseblo Yueon, also a man of
A^iOOglC
U18.
V,ALDBZ T. UNITED STATES.
7SS
promiuoiM, u lie wu mounting aa otttaide
•tairwttj to the aecond story of hli vilUga
hone. Punuuit to the prwtlM of tiie
Fliilippiiia Islands, the cu* wm txled hj %
judge without the ftld of ft Jui?-
Tbe guilt or innoeeno* of VUdei turns
upon the testimony of one Juan Oatouutui,
Who was found by Uie trial court to be so
"densely ignorant a man, of bo low an order
«f intelligence and so lacking in instnie-
tion, both mental and moral," that upon
flndiug him guilty of parttnipatlng In the
murder, the court, on this acoouut, reduced
bia wntence from death to life imprison-
■lant. The supreme court lay* of him that
ha "is a convicted cattle thief;" that "his
teitimcaiy in his own behalf la wholly un-
worthy of credit," and that in his own case
he repudiated all of hia testlmimy in the
Valdez case and teatifled tn a manner "ao
Incoherent, irrational, and Incredible aa to
east doubt on all that he said in his own
behalf."
^ To this we must add that this witness
^Oatmaitan first confessed to haring mur-
-• dered YuBon, without mentioning 'Valdez.
That afterwards, but two months before the
trial of Valdez, he made affidavit that he
and one Mateo Arcilla went to Valdez's
house during the early erening of the day
of the murder, that Valdei there gaxe them
« shotgun in the village atreet, and that
th« the two, without Valdez, wont and
concealed themselvea on the lot of Yuson,
and when he came home "I (Oatmaitan)
Recharged botli barrels of the shotgun at
faim at the same time and then ran to
Valdez's house and delivered the shotgun
Next he gave testimony, aneh as we shall
«ee, on the trial of Valdez, and eight days
later made oath in prison that the local
-constables bad tortured him for three
weeks, not allowing him to sleep day or
night, and thereby bad forced him to con-
fess that he and Valdez had committed the
4Qurder, when the truth waa he did not
know who killed Yuson.
Nine days after this, again mider oath,
be denied all torture and proaecution and
«aya that his testimony on the trial of Val-
4es was true.
And Anally the supreme court saya that
«n hia own trial he repudiated his t^ti-
mony in the trial of VaUw, denied aU
knowledge of the crime, and attempted to
-MUblieh an alibi for himseU.
Such is the witness who tells the follow-
ing amazing story en which Valdes ia sen-
tenced to death:
I can neilher read nor writ*. I Mrver
talked with Valdcs bat three times In my
lUt. The frat tima I was lookiog for
■agar cane seed and he said to me that 1»
wished to win my friendship,' — Dothing (da*
and we parted. The second time we met In
Valdez's seed field and he offered me a
business, which, aooording to his own state-
ment, was KB eB«y oa& / oafced him what
hittd of a huHMsf it wo* and he aOMl to
«M . . . 'that I ahotM hUl Aka^io
FueoM otMt (Aot he wotitd paj/ me 900 p«*o*^
itiSO).' I told him I aould not pUoM him-f
beoduee / wot eery busy of wtg loorfc'anda
no one could releaae me in said work. And
he told me to say nothing about It to any
one and thus we parted. Hie third Uma
I met Valdez he came to my hut in my
sugar eane flelda about five o'clock of a
Sunday evening [the evening of the mur-
der) and he invited me to return to town
and I rode with Um in his caleta {car<
riage) to hia home. During this drive of
about an hoar he said nothing to me.
When we arrived at his house he left me
in the street and went into the house.
When the bell struck the time of evening
prayer as he did not oome down from the
house I thought that he was praying and
when he did come down from the house ha
said nothing to me but handed me a shot-
gun.
Q. And what did yon do when yon t»
ceived the gunT
A. He still invited me to go to Loaoo.
Q. What <tMi Ae <for
A. He foUovxd me.
Q. Where did you got
A. To the house of UentcDant Enseblo
He says that on the way to Tuson'a honaa
he and Valdez stopped at a store and mw
Figueroa came and told them that Yuson
waa already there, and they then ap-
proached YuBon's house and located them-
selvea in the fence near the staircaaa (out-
side the house, leading to the secmd story),
and when Yuaon arrived Valdes ordered OM
to shoot.
Q. And what did yon doT
A. I tried to ^oot, but the gnn would not
Q. And then —
A. He approached me and aald, "Son of
a whore, he was able to go np and yon
won't ahoot," and he showed ma how to
ahoot and right at that nom«it the gun
went off.
On eroas-examlnatlon he saya he palled
the two triggers and that the gun would
not go off, and that then Valdes ikowed
him bow to shoot. "I waa holding the shot-
gun this way llndtcating) and he waa$
ahowing ma how t« akea^'sayin^ *nuB^
,A_.OOglC
7M
37 SUPBBMB OOUBT BKPOKTEB.
Oct. Tmc
tray,' and iriUiout more ftdo tke ibot «ama
out, the ihot gOB fell uid I wm frigfataned
and rsn ftw^y from tli« place and I know
■kothing more." He aaya he had uerer
handled firearma before, and did not Iokfw
how to Bhoot a gun, aiid that lu did not
tell Taldez that he did not know how to
■hoot. The shot thua flred waa the one
fatal to Tuaon.
I ahall not go Into the teatimony of the
eorroborating witneasea for th« proaecution,
Mateo ArcUla, who ia deaeribed bj the au-
preme eonrt u "a conricted wife murderer,
sentenced to life imprlaonment for that
crime since he appeared aa a wltneaa at
the trial at Valdez," and Fi^eroa, who,
with Oatmaltau and Areilla, the trial Judge
■87B pleaded guilty, before a justice of the
peace, to murdering Tnaon, without impli-
cating Taldez.
The only motive auggested on the part
of Valdex for murdering YuBon la a dif-
fuence IwtweeD him or hia mother (it la
not clear which) and Yusod about aome
boundary and water rights, which had been
amicably aettled four yeara before the mur-
der, and an indefinite husineea rivalry,
which is only remotely alluded to by the
widow of the deceased.
A careful reading of thia enUre record
conrinces me, and the opiniona of the lower
courta throughout proceed upon the aaaump-
tion, that the conviction of Valdez could
not be thought of except thia atory of Gat-
maitan, which I have thua detailed from
the record, la belieTed to be true. Under
the authority of the decisiona of thia court
In Wiborg t. United Statea, 183 U. 8. 632,
ess, 41 L. ed. 2B9, £98, 16 Sup. Ct. Rep.
3127, 1197; Clyatty. United StaUa, 197
V. 6. 207, 48 L. ed. 726, 25 Sup. Ct. Rep.
429; and in Diaz t. United States, 223 U. fi.
4M, E6 L. ed. GOe, 32 Sup. Ct. Rep. 260,
Ann. Caa. 1913C, 1138, I have thua ex-
amined tlilB record for the purpoae of de-
termining whether there ia any aubatantlal
evidence to be found in it to warrant the
conviction of the defendant, and my con-
clusion ia that there la no aueh evidenee,
beeauae, after making full allowance for
^differencea of habit, of life, and of character
■ of the peraona^involfed and of the witneeses,
I Cannot conceive it poasible that a man
Buch as Yaldez is described to be, even If
he deeired the death of an enemy or k rival
(as to which there ia no evidence), would
bribe to shoot him, an entire stranger of
the most ignorant type ohtainable, who had
never used firearms; should promise htm
money to commit the murder; should de-
liberately hand him, in the early evening,
in ft village street, the gun with which to
ahoot the victim; and tAen ihovid go with
tilt mwrdefw to (Ae leent and partictpata
in tkt oMOMiMMo* &y pulling flU Mffer
«0Moh firad tkt /aioJ ihot.
Comment would be auperflnons. Hie
mere nuration of the story malies it tm-
poasible for me to eonasnt to making it the
legal basis for depriving a man of his life,
for the testimony of Oatmaitan ia not mere-
ly mistaken testimony, due to faulty recol-
lection or atatonent, but one of hIa series
of atories Is necessarily, conaciously, and
corruptly false, and therefc^v the other
ahould not be relied upon; especially not
in a capital caae. It ia not uncommon for
ignorant and corrupt max to falsely charge
others with doing what they imagine tliat
they themselvea, in their narrow miuda and
experience, would hava done under the dr-
cumstancea of a given case, and the surest
cheek, often Uie only cheek, on auch per-
jury, is to recognize the impossibility that
men of larger instruction and resources and
experience could have been guilty of such
conduct. It ia, of course, possible that Val-
dei committed or inspired this crime, but
it ia impossible to believe that he would
have committed it in the crude, certain to
be detected, manner described by Oatmaitaji.
Thia conclusion ia arrived at putting
wholly aside the defwse of the accuaed, in
which he took the witness stand, and, so
far aa the record shows, snatained himself
through a searching cross-examination, in a
categorical denial of the, to me, utterly in-^
credible atoriea of the proaecuting witneaaes.^
* But even if the evidence in the caae were*
deemed by me credible, I atill should con-
elude that the Judgment should be reversed
for the purely legal reason which I ahall
now state-
When the atate dosed its evidence in re-
buttal, the proaecuting attorney requested
the court (there waa no jury) to view the
scene of the murder. To thia counsel for
the accuaed asaented, but with the request
that "no teatimony be taken because it pro-
duced great confusion when trying to ex-
amine wltneases at the place of the occurs
rence." To this request the prosecuting
attorney replied: "What Mr. Southworth
■ays would be very advisable, but I believ«
it would be very advisable also not to dia-
penae with tbe task in which the court may
exercise Ita discretion, so that when said
court arrives there it may ask of unknovm
peraone lehsra the dtoeaaed fell, lohere t\a
lead %ea» found, ioh«re Qatmaitan wtu, wi^
where if oteo Aroilla wa*,"
Then this follows 1
The court: Hie court has no objection tit
making that inspection after the defense
has produced its rebuttal evidence, not
ihounng in (A« reoord the mult «t taid
'itupecTtHMk
,A_^OOglC
VALDEZ T. UHITED fflATES.
7M
iSr. SouUiwortltt W« ItkTs bo nbnttml
«*ideace.
Tha court: So that we mM.y doM tli*
Mr. Chicot«: Tm, sir.
The court: Good; to-morrow you in»y
preKnt your arguments. The oeeaion at the
«ourt is closed.
The record furUior ihowe th»t the judge
Tlsited the Ecene at the murder, th&t Valdez
xrta confined in prison Bereral miles sway
«t the time of Uie visit, and that ba was
neither required noi invited to be present
at the view.
This visit to the scene by the judge with-
out the presence of the accused Is assigned
aa one of the reasons why a new trial should
be granted, on the ground that such action
violated g 5 of the Act of Congresa of July
Slst, 1902 [32 Stat, at L. 8K, ekap. 1160],
7known aa the "Philippine bill," and also
article e of the Amendments to the Consti-
tution of the United States, providing tliat
tiie accused "shall enjoy Uis right to be
confronted with the witnesses against him."
What was done by the judge at this view
b the subject of much dispute and conflict
of statement made in affidavits on motion
for a new trial. A typical statement in the
Interest of the accused of what occurred Is
Bade by his attorney, who is described In
the record as a repntable member of the
bar, who stated that the widow of the de-
•eased explained to the judge what she
daimed had taken place on tha night of
the murder, pointing out where the deceased
hsd fallen, and discussing msny other mat-
ters in connection with the case, sha weep-
ing and wringing her hands all of tha tim«
that such interview was In progress, and
that one Crockett, a constable, was active
fn indicating to the court various points
and ctrcumstsnees connected with tha mur-
der, all of this against objections mads by
counsel as to the conduct of tlie widow and
Crockett.
A typical aAdaTit Introduced by tha state
was by the private prosecutor Buencamino,
who stated that he was present at the view,
that the judge "neither received any evi-
dence nor admitted any testimony referring
to the ease then being prosecuted against
Valdez, and, according to my best recollec-
tfon, I did not seo the widow crying,, but
I saw her at a place distant from the judge.
I also state that Captain Crockett did not
give any evidence before the judge."
An assistant attorney for the government
made affidavit that at no time did be see
the widow crying or talking to the Judge,
or Illustrating how her husband had fallen.
However, a phob^aph of the scene at
the time of the view Indicates that It mnat
have been a very imnsna] local event, for a
large crowd waa praaent, and in this photo>
graph the widow la shown in a positicmg
which must have been* very eloae to thaj
judge, and it is very significant tliat there
ia no statement from the judge as to just
what he did and aa to what oocuned at
It has long l>een familiar, textbook, law,
that a viewing of the premises where the
crime is alleged to have bean conuuitted ia
part of the trial. Thus, In Wharton's Crim-
inal Law, 9th ed. vol. 3, j 707, it U said:
"The visit [of the jury) must be made in
the presence of the accused, who ia entitled
to have all the evidence received by the
jury taken in his presence." And in Ene.
of PI. k Pr. vol. 22, p. loss, it Is said:
"In criminal causes tbt accused ia entitled
to be present if the jury is aent to view tha
locus of the crime, as a view in the absence
of the accused would violate his eonstitu-
tional right to appear in person and be
confronted wltli the witnesses against him."
But the law upon this subject has been
recently summed up by this court (Diax
v. United States, 223 U. B. 442, 454, SO
li. ed. eOO, BOS, 32 Sup. Ct. Rep. 250, Ann.
Gas. 1913C, 1138) In an admirable state-
ment, which, In my judgment, rulea the caae
before us, and ia as follows:
"We are thus brought to the question
whether the provision in g 0 of tlie Philip-
pine Civil Qovemment Act, seeotlng to the
accused In all criminal prosecutions 'the
right to be heard by himself and counsel,'
makes his presence Indispensable at every
stage of the trial, or invests him with a
right which he is always free to assert,
but which he also may waive by his volun-
tary act. Of course. If that provision makes
bis presence thus indispensable, it is of no
moment tliat the Philippine laws do not go
so far, for they cannot lessen its force or
effect. An identical or limilar provition la
found in the constitutions of the several
states, and Its substantial equivalent it eia-
bodi«d ta the Stk Amendment to the Con-
stflufton of the United Statu. It Is the
right irtklch these constitutional provisions
secure to persons accused of crime in this
country Mat toot carried to the Philippine*
hy the eongreational enactment, and th«re-K
fore, aooording to a familiar rule,'the pr»»
vailing eourte of decition here may and
thould le accepted a* determinative of (A«
fuiture and meaeure of the right there.
Kepner v. United States, ISG U. S. 100,
124, 49 L. ed. 114. 122, Zi Sup. Ct. Rep.
797, 1 Ann. Cas. 655.
". . .'In cases of felony our courts,
with substantial accord, have regarded it
aa extending to every stage of the trial,
inclusive of the impaneling of the jury and
,A_iOOglC
TW
ST BDFBEHE OOTIRI HKFORISR.
OoT. TnM,
the reMption of tbt Tardlet, mA ka being '
taareely teti important to tAa aooiuvd than
the right of trial ittelf. And taiih Uke go-
oord they haivt regarded an aaouted who i»
*H cuetody and one toho it oharged vith a
capital offense a* incapable of vtai^ng tha
right; the oub, because his preBonce or ab-
aenoe it not within hb own control, and the
other because, in addition to being tuuallf
In custody, he la deemed to suffer the con-
straint naturally Incident to kn apprehen-
sion of the Bvful penalty that would follow
conviction. . . .
"The reasoning upon which thU rule of
decision resta is clearly indicated in Barton
V. SUte^ 67 Oa. 053, U An. Rep. T43,
where tt Ii said by the aupreme oourt of
" 'It is the right of the defendant In CMea
of felony ... to be present at all
stages of the trial, — especially at the ren-
dition of the verdict, — and if be be In such
custody and confinement ... as not to
be present unless sent for and relieved by
the court, the reception of the verdict dur.
Ing auch compulsory absence is so illegal
as to necessitate the setting it aside. . . .
The principle thus ruled is good sense and
sound law; because ha cannot exercise the
ri^t to be present at the rendltim of the
Terdict when in jsil, unless the officer of
the court brings him Into the court by its
order.' "
It Is dIfBcult to imagine a case which
would show the ralue ol this rule more
strongly tJian the case we are considering.
It the description of what occurred as given
by counsel for the defendant is even ap-
proximately true, it is not improbable that
even the most stoical judge might have
been Influenced by It, and the presence of
§the defendant might very well have bad a
• eounterbalancIng*infIuence, and. In addition
to this, he was entitled to the benefit of
any suggestion which he might have been
able to make throu^ his counsel.
It is very clear to my mind that Dias v.
United States, supra. In principle rulee
this case, and that the Tlewlng of the scene
of the murder by the judge without the
presence of the accused requires that it be
reversed and a new trial granted.
That the conclusion I have reached In
this ease is not idioeyneratlc, or the result
of an undue r^ard for a man's life when it
Is sdequately proved to have been forfeited
under the law. Is, I think, sufficiently
ahown by the fact that two of the members
of the supreme court of the Philippine Is-
lands arpreased their estimate of the case
made against Valdei by this record to
these terms:
Uoreland, }., dissenting: "^ dissent I
think that the least the accused is entitled
to, under the facts and the law, ia a new
trial I bellare, however, that he ia entitled
to an acquittal upon the facts as presented.*
And
Grant T. Treit, J.i "^ dissent on the
ground that the prosecution has not proved
the guilt of the appellants of the crime of
which they were convicted."
For the resaona thus stated, I am of
opinion that this record does not show any
credible testimony supporting the judgment,
that, upon the authorities cited, It rests
upon srror of law gravely prejudicial to
the accused, and that it therefore should
be reversed and a new trial granted.
I am authorised to say that the CHmr
JuanOB concurs in this c^inion.
(IH U. 8. 4il>
EX PASTE THE PARK SQUARE ADTO-
MOBILE STATION, PetiUoner.
MAtnturuB «=>4(S)— l?o RxviEw Jmioui.
Action — Other Remedt— -BsuaHD or
OATTBK IKFBOPKBI.T BXUOVKD.
The refusal of a Federal districfe
court in the state of New York to remand
a cause which had been removed to that
court from a state court of New Hampshfr*
may not be reviewed by mandamus, how*
ever manifest may be the error of the dis-
trict court, and however grave the incon-
venience arising in the particular case from
the construction which that oourt gave to
the removal statutes, and upon which it
based its jurisdiction, sinoe such error is
susceptible of review in the Federal Su>
preme Court by certificate and direct review
on the question of Jurisdiction alone, after
final judgment, or by review of the whole
ease in the circuit court of appeals, and
by certiorari from the Supreme Court.
[Sd. NotB.— For other caMa, sea Maadamiu,
Cent, DIK. H 10-lG, U.I
[No. SI, Ori^al.]
ORIGINAL PETITION for a Writ ol
Mandamus directed to the District
Judge of the United States for the Northern
District of New York to compel the remand
of a cause to the Superior Court for Hills-
borough County, in the State of New Hamp-
shire, aa having been improperly removed
to the Federal Diatriet Court. Rule dia-
charged.
The tacts are stated in the opinion.
Mr, Edward O. Stone for petitioner.
Mr. Robert O. Dodce for respondent.
Mr. Chief JuaUce WIUt« deUvered th*
opinion of the court:
Upon the ground that the American Loco-
motive Company, * corporation created un-
M topic A KBT-NUMBBR In all Ker-Nitmbsred DIgwi
A^iOOglC
K»1S.
KX PABTB TEX PABE SQUARE AUTOMOBILE STATKHT.
7SS
■ dar tha law* of New TDrk,*waa oiTTjliig' on
bnaiiMM In the at&te ef New Hjunpalilra «nd
amenable to the jnrisdietion of the eourta
of that BtaU, the petitioner, the P&rk
Square Automobile Station, k Uiiiiie eorpo-
ration, commenced ita anit for breach of
contract againat the American ZiocomotiTe
Company in a New Eampahire state eourt.
In each court, after aervice npon It, the
LocomotiTa Company prayed a remoTal of
the eauae, not to the district court of the
United States for the district of New Hamp-
ahire, but to the diatrict court of the United
State* tor the aouthem district of New
York, and ita prayer U> this effect was de-
nied by the etate court. Some time there-
after the prayer for remoTal was renewed,
moditled, however, by asking that the re-
tnoTal be ordered to tha district court of
the United States for the northern diatrict
of New York on tha ground that the corpo-
ration was an inhabitant of that diatrict
and had ita principal place of bnainess
there. This request I>eing also denied, the
LocomotlTe Company, executing a bond for
remoral, filed the record In the diatrict
«OUrt of the United States for the northern
district of New York. The Automobile
Uompany thereupon moved to remand, not
on the ground that the case was not a re-
norable one, but becaUEe It waa solely en-
titled to be removed to the proper district;
that ia, from the state court in New Hamp-
ahire to the United States district court of
that atate. Thia motion having been over-
ruled (222 Fed. 9TB), the caae waa brou^t
directly here upon the theory that the al-
leged error reeulting from the refusal to
remand waa susceptible of being reviewed
althou^ no final judgment had been entered
in the cause. At thia term the writ of error
taken for the purpose atated was dismissed
beeanae there was no final Judgment (244 U.
B. 633, 61 L. ed. — ,37 Sap. Ct Bep. 4S1),
and thereopoa, on petition to that effect, a
rule to show cause why a mandamua abould
not be granted, directing the diatriet court to
^nverse Its ruling refusing to remand the
J cause, was allowed, and on a return of the
■ diatrict eourt to that rula the aubject la ba-
fore ns for consideration.
The contention of the petitioner Is that
■Hiiifest error waa eommltted in taking
furladietion on a remoral of the eanae from
the state eourt of New Hampshire aince the
proper court, npon Uie assnmptlon that the
caae waa removable, was the diatrict eonrt
•f the United SUtes for the diatrict of Hew
±lampahire, and that eourt alone.
At the threshold, however, we are met by
the auggeatloB that, ooneedtng, for the sake
of the aignmant, that the lowv court erred
In refnaiag t« r«Dand and In takiag Juris-
dletioa, as audi error wm naoeptibla «f
being reviewed by the regular methods priv
Tided by the statute, that ia, by certKleato
and direct review en the question of Jurla-
dietlon alone after final judgment, or by
review of the circuit court of appeaJs where
allowed if the whole caae were taken to
that court, or I^ the exercise by thia court
of ita power to lasue a writ of certiorari In
a proper case, there Is hence no power to
substitute the writ of mandamua as a meana
of reviewing for tha express remedial pro-
eessea ereatad hj tha statute for such pur-
it la not diaputabia that tha propoaitlon
thua relied upon is well founded and benca
absolutely debara ua from reviewing by man-
damus the action of the court below com-
plained of, whatever may be our oonvictica
aa to ita clear error. { Ez parte Harding, 219
U. 8. 363, S6 L. ed. 2S2, 37 L.ILAfN.S.)
392, 31 Hup. Ct. Rap. 324 ; Ex parU Roe, 234
U. S. TO, 68 L. ed. 1217, 34 Sup. CL Rep.
722), unleea it be that by acnne ezceptloa
the case is taken out of the reach of the con-
trol of the cases referred to. It is inaiated
that thia easa ia such aa exceptional one,
tirst, becaiue of the clearly erroneoua eon-
atructioa of the statute upon which tha
court below baaed ita aaaertion of juris-
diction and the atrange result which arose
from that construction, that is, the removal
of a case pending in the atate court of New
Hampshire to a district court in the atat«
of New York, and second, because of thcia
grave wrong which would result from foro-^
Ing the petitioner to'try ita ca«e in the*
state of New York, at great inconvenience
and expense, aa a preliminary to securing a
review of the question of Juriadiction, — an
expense and incanvenience which would be
saved if, by review, now, by means of a
writ of mandamua, the removal statute* ba
giren their natural meaning, and thus tho
wrong and confusion arising from their mia-
construction would b« avoided. And in aup-
pml of the exceptions thua asserted, re-
liance la placed on expreasiona contained in
the opinion in Ex parte Harding, 219 U. B.
363, 373, 6S L. ed. 252, 265, 37 L.R.A.(N.8.1
302, 31 Sup. Ct. Rep. 324, by which it ia
contended they are sustained.
But conceding that the error which tha
proposition attributea to the ruling below
ia manifeat, the conclusion drawn from tho
opinion in Ex parte Harding is obvionsly
a mistaken one. Indisputably In that caaa
the court was called npon to consider in a
twofold aspect some contrariety of riewa
manifested in decided caaea, flrat, as to the
power to correct an nnwarraiited exereiae of
jarisdiction by way of proeaedings in man-
damus b a case where no method of review
I otharwisa prcrlde^
,A_.OOglC
?w
ST SUPREMB COUBI EEPOBIEB.
Oor. 1
luid aecond, the right to resort to mandamuB
in disregard of and u a subetituta for ex-
press and pOBitive statutory regulations
pointing out the method bj which such re-
Tiew could be had. Bearing thii in mind,
it is plain that the language relied upon in
Ex parte Harding related to the first class
and established the doctrine that even in a
case where no means of review were provid-
ed b7 statute, the writ of mandamus could
be used only in exceptional cases calling for
an exceptional remedy. But tUs did not In
the slightest degree qualify or limit the
comprehensive rule which was established as
to the second class, to the effect that wliere
statutory methods of review of questions of
jurisdiction were provided for, they could
not be disregarded, and therefore that there
was no power to override the statutory pro-
^Tisions by resorting to the writ of man-
'Idamus. And the whole subject will be made
• very clear by a consideration of tbe opinion
in Ex parte Boe, supra, which gave effect
to and applied the rule laid down in Ex
parte Harding.
Indeed, when tbe ■ituatlan dealt wltli in
J£x parte Harding is taken into view, it be-
comes apparent that the confusioD and con-
Hkt which had imperceptibly arisen from
obscuring the lines dividing tbe statutory
methods for review of questions of juris-
diction, and the effort to review them by
the writ of mandamus, which was cwrected
by the decision in that case, would ba re-
created by now permitting a resort to the
writ of mandamus in this eass. And this
also makes clear that, however grav* may
be the inconvenience arising in this par-
ticular case from tbe constrnction which the
court gave to the statute, and upon whieh
It based its assertion of jurisdiction, greater
inconvenience in many other cases would
necessariJy come from now departing from
the established rule and reviewing the
action of tbe court by resort to a writ of
mandamus instead of leaving the correction
of the error to the orderly methods of ra-
Tiew established by law,
Kule discliarged.
(HI 0. B. an
FIEST NATIONAL BANK OF BAT CITY,
Pltr. in Err.,
GRANT FELLOWS, Attorney General of
t)ie StaU of Michigan, ON THE RELA-
TION OF UNION TRUST COMPANY
et aL
BAime AiTD Baitkinq ^=>234 — National
Rankb— Powra or CoNORZsa — Iuplted
POWEBa — CONFEBBIHO ACTaOBITT TO ACT
AH Trustee, Executob, ADiniilSiBATOB,
OR ItrOIBTBAR.
J. Conorons did not exceed its power
under U. S, Const art. I, g B, clause 18, to
make "all laws whieh shall be neceaaary
and proper for carrying into execution" th«
powers expressly given by the Constitution,
when giving authority to the Federal Re-
serve Board by the Aet of December 23,
leiS (38 Stat, at L. 262, chap. B, Comp.
Stat. 1918, g 9704), J 11 (k), to grant liy
special permit to national banks applying
therefor, when not in contravention of stata
local law, the right to act as trustee,
cutoT, administrator, or registrar of
stocks and bonds under such rules and iegu>
lationa as the board may prescribe.
[Bid. Nate.— For other cases, hs Bank* and
BanklHE. Cent DtK. H ffif-Sn, VrO-lUT.}
2. Legislative power was not unconsti-
tutionally conferred on the Federal Reserve
Board by the Act of December 23, 1913
(38 Stat, at h. 2B2, chap. 6, Comp. Stat.
1916, g 9764), i II (k). giving authority
to that board to grant by specif permit to
national banks applying therefor, when not
in contravention of state or local law, the
right to act as trustee, executor, adminis-
trator, or registrar of stocks and b<Hids,
under such rules and regulations as the
board may prescribe.
[ES. Note.— For other casei.
Law. Cent. Dig. || H-IOI.]
OonETs «34S8<11> — OoiTPLicnnQ Juns-
DICnoIT— Quo WAKKAmro — NATIOltAI.
Bans.
3. The Institution by a stat« attorney
general In a state court of the proceeding in
the nature of quo warranto to test the au-
thority of a national bank, under the Aet of
December 23, 1913 (38 Stat, at L. 262, chap.
6, Comp. SUt 1918, S 9794), 3 11 (It), to
act as trustee, executor, administrator, or
registrar of stocks and bonds, was implied*
ly if not expressly authorized by the pro-
visions of that section giving such power
only "when not in contravention of state or
local law," and of the Act of June 3, 1864
(18 Stat at li. 116. chsp. 106) | IfT, now
in Rev. St | 5196 (U. 8. Oomp. St. 1918. |
6709), making controversies ooneeming n»-
tional banks cotniiable in stata oonrta.
[No. 764.1
Argued March 22 and 23, 1917. Decided
June 11, ISIT.
t N ERROR to the Supreme Court of the
X State of Michigan to review a judgment
which, in a proceeding in the nature of quo
warranto, held that a national bank conld
not ba clothed with power by the Federal
Reserve Board to act as trustee, exacutor,
administeator, or registrar of stocks and
bonds. Reversed u)d remanded for further
proceedings.
See same ease below, — Hieh. — t 16B N.
W. 33S.
The facts are itated in tbe opinion.
I Messrs. Bdward S. Clark and H. U.
Glllett for plaintiff in error.
csiM fee Mm* topic * KIT-NDKBER In all Kar-Nombered Dlteats * lodexes
L',oiii,j-,<^-.OOglC
1S1«. riBST HAT. BAHE T. FELLOWS ON BSLATIOH OV UmON TBUST CO. TU
UcMn. neiU7 ir. C*i>ipb«n and John
O. fohnsoR for defoidkiit In error.
SolldtoT (ienen.1 DsTta ud Mcmtb. ]
too C. Elliott and Joseph P. Cotton m
■miei euiin, for the United Btatet, b; 1mt«
^of conrt
• ■ Mr. Chief Juatle« White dellTered the
opinion of the court;
We are of opinion that the proeednra r*-
•ort«d to was appropriate and that the state
eourt waa competent to admlnlater relief,
but we postpone atating our reasona on the
■abjeet uuUI the merits hare Ixen paaaed
Hie eonrt beloir held that an act of Con-
gresa conferring on national banki addition-
al poweri was in excess of the authority
of Congress, and was hence repugnant to
the Conititution. — Mich. — , 169 N. W.
S3S. The correetneia of this conelnsion la
in substance the sole question for dedfion
on the merit*.
Although the powers glren were new,
the principles involved in the right to con-
fer them were long since considered and
defined in adjudged cases. We shall first
consider the leading of such esses and then,
after stating this ease, determine whether
they are controlling, causing the subject
not to be open for original con si deration.
In M'CuHoch y. Maryland, 4 Wheat Sl«,
4 L. ed. 679, the bank had heen incorporated
by Congress with powera to transact busi-
ness of both a governmental and of a privata
^character. The question which was decided
^was the authority of Congress to grant
• such eharter. Without undertaking 'to re-
state the opinion of Mr. Chief Justice Mar-
shall, It lUlBces for the purpose of the mat-
ter now before us to aay that it was held
that although Congress waa not npressly
given the power to confer the ehart«r, au-
thority to do so waa to be implied as appro-
priate to carry out the powers expressly
given. In reaching this conclusion it was
further decided that to recognise the exis-
tence of the implied power was not at all
in conflict with article I., g 8, clause 18
of the Constitution, providing that Con-
gress should have power "to make all laws
which shall be necessary and proper for
carrying into execution the foregoing pow-
ers," since that provision did not confine
the implied authority ia things which were
Indispensably necessary, Init, on the con-
trary, gave legislative power to adopt every
appropriate means to give effect to the pow-
ers expressly given. In terms it was point-
ed out that this broad authority was not
stereotyped as of any particular time, but
endured, thus furnishing a perpetual and
living sanction to the legislative authority
within the limita of « just discretion, en-
abling It to take Into consideration the
changing wanta and demands of society and
to adopt pnyvialona appropriate to meet
every aituatlon which it was deemed re-
quired to be provided for. In fact, th«
ruUnga which we have stated were all
summed up In the following passage, which
ever since has twen one of the principal
teata by which to datarmine tha scope of
the implied power of Congress over snlv
jeeta committed to Its legislative author-
ity:
"We admit, as »11 must admit, that the
powers ot the government are limited, and
that its limita are not to be transcended.
But we think the sound construction of tha
Constitution must allow to the national leg-
islature that diacreiion, with respect to the
means by which the powers it confers are
to be carried into execution, which will
enable that body to perform the high dutieis
assigned to it, in the manner most Ijeneflcial^
to the people. Let the'snd lie legitimate,*
let it be within tha scope of the Constitu-
tion, and ail means which are appropriate,
which are plainly adapted to that end,
which are not prohibited, but consist with
the letter and spirit of the Constitution, ar*
oonstitntional." p. 421.
In Osbom t. Bank of United SUtes, ft
Wheat. 788, 0 L. ed. 2M, where substantial-
ly the subject was presented in the same
form in which It had lieen passed upon in
M'CulIoch V. Maryland, yielding to tha ro-
qneat of counael, the whole subject was re-
examined and the previous doctrines restat-
ed and upheld. Considering more fully,
however, the qnestioD of the posseasion by
the corporation of private powers associat-
ed with its public authority, and meeting
the contention that the two were separable,
and th^ one, the public power, should be
treated as within, and the other, the private,
as without, the implied power of Congress,
It was expressly MA that the authority
of Congress waa to be ascertained by con-
tidering tha bank aa an entity possessing
the rights and powers conferred upon it. and
that the lawful power to create the bank
and give It the attributes which were deemed
eesential eould not be rendered unavailing
by detaching particular powers and con-
sidering them isolatedly, and thus deBtr<^
the efficacy of the bank as a national In-
strument. He ruling in effect was that
although B particular character of buainess
might not be, when Isolatedly considered,
within the implied power of Congress, if
such business was appropriats or relevant
to the banking buainess, ths implied power
was to be tested by the right to create the
bank and the authority to attach to it
that which was relevant, in the jud^iment
of Congress, to make the business of ths
,A_^OOglC
nt
rr anPBxuB coubt rbpobteb.
OOT. TBK,
bftuk ■nccessful. It ms aud: 'CtmgrcM
wa* of opinion UiAt theM faoultiw «
newiiry, to enable the bank to perfi
the MrricM which are exacted from it, and
for which it was created. Thi« waa eer-
talnlj a queation proper for the conBidera-
Stion of the natitmal leglslatare." p. 864.
i*At the doctrinea thue announced htve
been reiterated in a multitude of judicial
deneloni, and hare been undeviatinglj ap-
plied in legislatire, and mforced in admin-
iatrative, action, we corns at once to atate
the ease before ui to sea whether inch doe.
trine* dispose, without more, a* a mere
queation of authoritj, of the anbjeot under
canslderatloQ.
Section 11 (k) of the Act of Congreaa ap-
proved December E3, 1913, eBtabliahlug the
Federal Reserre Board (3S Stat, at L. 261,
202, chap, e, Comp. Btat. 1016, gS 0780,
9704), give* to that board authorit? "to
grant b; special permit to national banks
applying therefor, when not In contraTen-
tlon of state or local law, the right to act
a* trustee, executor, administrator, or reg-
istrar of stocks and bonds under such Tulea
and r^ulationi aa the aaid board maj
prescribe."
He PI rat National Bank of Bay City,
having obtained the certificate required, be-
gan the exercise of the powers stated.
Hereupon certain trust eompaniea which,
under the laws of Michigan, bad the au-
thority to do the eame character of business,
petitioned the attorney general of the state
to teat the right of the national bank to
vae the functions, on tile gronnd tliat Ita
doing BO was contrary to the laws of the
state of Uiebigao, and that the action
of the Federal Beserre Board, purporting
to give authority, was In contravention of
the Conatitution of the United States. The
attorney general then, on the relation of
the trust companies, commenced in the eu-
preme court of the state a proceeding in
the nature of quo warranto to teat the
right of the corporation to exerdae the
functions. The bank, in defenae, fully stat-
ed Its Federal charter, the rights given by
the act of Congress, and the action of
the Federal Reeerve Board taken there-
under. The attorney general demurred to
this defease, first, because Congress had
BO power to confer the authority which was
a tailed in question; second, because If it
^had the power, it was without right to
• delegate to the Ressrre Board the •detcr-
Bination of when It should be used; and
third, because the oiereise of the powers
was in cantravention of the laws and au-
thority of the state, and the Reaerre Board,
therefore, under the aot, had no pewsr to
grant the eortillcata.
Ibt eaa* was heard hj the full ooart Is
an opinion of one judge, which, it wonid
seem, waa written before the opinim of
the court was prepared, it waa elaborately
reasoned that the exerdae by a national
bank of tlie functions enumerated in tha
section of the act of Congreaa under con-
sideration would be contTBTy to the law*
of the atate, and therefore the Reeerf*
Board, under the terma of the act of Con*
grass, had no power to authorize tbeir
exertion. The opinion of the court, how*
ever, fully examining the grounds thus
stated and dlaagreeing with them, expressly
decided that corporations were authorized
by the atate law to perform the functiona in
question, and that the mere fact that
national banka were Federal corporations
did not render them nnfit to assume and
perform such duties under the atate law,
because the mere difference existing betweoi
tha general administrative roles governing
national banks and state corporations af-
forded no ground for aaying that it would
be eontrary to state law tor national banka
to csert the powers nnder conBideratioo.
The authority conferred by the act of Con-
greaa and the rights arising from the
certificate from such point of view were
therefore upheld. Looking at the subject,
however, from a conaideration of the I^iala-
UvB power of Congreaa in the light of the
decisions in M'Cultoch v. Maryland and Oa-
bom V. Bank of United States, and reoop
nizing that it had been aettlad beyond dis-
pute that Congreaa had power to organlzn
banks and endow them with functions both
of a public and private character, and in
the aseiuned further light of the rule that
every reasonable intendment must be in-
dulged in in favor of the oonstitutionali^^
of a legislative power exercised, it waa yet^
decided that Congress had no 'authority*
to confer the powers embraced tn the aection
of the act under consideration, and hence
that the section was void. The court, fol-
lowing Its reference to U'Culloch v. Mary*
land and Oabom r. Bank of United States,
and to passages in the opinions in thoea
cases, upholding the rightful possession by
the bank of both public functions and pri-
vate banking attributes, stated the grounda
which led it to conclude that the rulings
in the dedded caaes were diatinguiababla
and therefore not controlling. It said:
''But in the reasoning of the judges, la
the opinions to which I have referred, I
find, I think, a conclusive argument aup-
porting the proposition that Congress haa
exceeded its constitutional powers in grant-
ing to banks the right to act as trusteea,
executors, and adminiatratora. If for mere
profit it can clothe this agency with the
powers eonaterated, it can give it the rights
of ft trading oorporatliHi, or a transport*-
,A_^OOglC
WU. nSST NAT. BANE t. FELLOWS ON BKLATION Ot UNION TRUST 00. Itt
UoD MMnpany, oi both. Here la, M Jtiilg«
Uarihall points out, & n&tural connectioit
between the bueineu of buikiag uid the
ekrrying on of Federal fiscftl operationi.
There is none, Apparently, between eucli
operation* and the bueineai of aettling
efltatea, or acting aa the tnutee of bond-
holders. Thii being so, there la in the leg-
islation a direct invasion of the sovereignty
of the state which controls not only the
devolution of estates of deceased persons
and the conducting of private business with-
in the state, but ss well the creation of
eorporatione and the qualifications and
duties of such as tnay engage in the business
of acting aa trustees, executors, and admin-
istrators. Such an invasion I think the
eourt may declare and may prevent by it*
order operating upon the offending agen^."
I— Mich. — > 169 N. W. 339.]
But we are of opinion that the doctrine
thus announced not only was wholly In-
adequate to distinguish the case before us
from the rulings in M'Gulloch v, Maryland
and Osbom v. Bank of United States, but,
3 on the contrary, directly conflicted with
What waa decided in those cases; that is to
* say,>diBregBrded their authority so aa to
eause it to be our duty to reverse for the
following reason s:
1. Because the opinion of the oourt. In-
stead of testing the existence of the implied
power to grant the particular functions in
fUeatiou by considering the bsnk as created
by Congress as an entity, with all the func-
tions and attributes conferred upon it, rest-
ed the determination aa to such power upon
• separation of the particular lunetiona
from the other attributes and functions of
the banic, and ascertained the existence of
tte implied authority to confer them by
eonsldering them aa segregated; that Is,
^ disregarding their relation to the bank
■a component parts of its operations, — a
docb'ine which, as we hare seen, waa in
the most expreas terms held to be unsound
in both of the caaaa.
2. Because while. In the premise to the
reasoning, the right of Congress was fully
reoognized to exercise ita legislative Judg-
ment aa to the necessity for creating ths
bank, including the scope and character of
the public and private powers which should
be given to it, in application the discretion
of Congress was disregarded or set aside
by exercising judicial discretian for the
purpose of detecmining whether It was rele-
vant or appropriate to give the bank the
particalar functions in question,
3. Because even under this mistaken view
the conclueion that there waa no ground for
Implying the power in Congress was errcme-
ous because it waa based on a mistaken
standard, since, for tha pnipoae of testing
87 S. C— 47.
' how far the functions In question which
were conferred by the act of Congress on
the bank were relevant to its business, or
bad any relation to discrimination by state
legislation against banks created by Con-
gress, it considered not the actual aituation,
that is, the condition of the state legisl*-
tion, but an imaginary or nonexisti&g con-
dition; that is, the assumption that, so
far as the state power waa concerned, tht
particular functions were in the atate as-n
joyed 'only by individuals or corporationia
not coming at all, actually or potentially,
in competition with national banks. And
the far-reaching effect of this error becomes
manifest when it is borne in mind thatt
plainly, the particular functions enumerat-
ed in the statute were conferred upon na*
tlonal banks because of the fact that they
were enjoyed aa the result of stat« legisla-
tion, by state corporations, rivals in a
greater or less degree of national bonks.
4. In view of the express ruling that tha
enjoyment of the powers in question by the
national bank would not be in contravention
of the state law, it follows that the retei^
ence of the court below to the state au-
thority over the particular subjects which
the statute deaJs with must have proceeded
upon the erroneous assumption that, because
a particular function was subject to ba
regulated ij the state law, tbarefore Con-
gress was without power to give a national
bank ths right to carry on such functions.
But if this be what the statement signifies,
the conflict between it and the rule settled
in M'Culloch v. Maryland and Osbom t.
Bank of United States is manifest. What
those cases estsbllabed was that although
a busincae was of a private nature and sub-
ject to state regulation, if it was of such
a character as to cause It to be incidental
t« the successful discharge by a bank char-
tered by Congreea of its public functions, it
was competent for Congress to give th*
bank tbe power to exercise such private
business in co-operation with or as part of
its public authority. Manifestly tlds ex-
cluded the power of the state in such case,
although It might possess in a general sens*
authority to regulate such business, to use
that authority to prohibit such business
from being united by Congress with the
banking function, since to do so would ba
but tha exertion of state authority to
prohibit Congress from exerting a power
which, under the Constitution, it had a
right to exercise. From this It must also
follow that even although a business be of^
such a character that it is not inherently^
considered susceptible of'being included by*
Congress in the powers conferred on na-
tional banks, that rule wonld nnasn to apply
if, by state law, stata ►""'^-g eorpontioB^
,A_.OOglC
73S
37 8UPREUB COUKT BEPOBTBK.
Oct. 1
trust companleB, or others which, b; rea«on
of their buainesB, are riFaU or quasi rivals
of national banks, are pBrmitted to carry on
such husinesB. l^ia must be, since the
state may not ij legislation create & con-
dition as to a particular business which
would bring about actual or potential com-
petition with the buainesa of national banka,
and at the same time deny the powo' of
Congress t« meet such created condition by
legislation appropriate to avoid the injury
which otherwise would be suffered by the
national agency. Of course, as the general
•ubject of regulating the character of busi-
ness just referred to is peculiarly within
state administrative control, state regula-
tions for the conduct of such bueinesa, if
not discriminatory or so unreasonable as
to justify tb« conclusion that they neces-
sarily would so operate, would be control-
ling upon banks chartered by Congress when
they came, in virtue of authority conferred
upon them by Congress, to exert such par-
ticular powers. And these considerations
clearly were in the legislative mind when
It enacted the statute in question. This
result would seem to be plain when it is
observed (a) that the statute authorizes
the exertion of the particular functions by
national banks when not in contravention
of the state law; that is, where the right
to perform them is expressly given by the
state law; or, whst Is equivalent, is de-
ducible from the state law because that law
has given the functions to stat« banks or
corporations whose bus in ess in a greater
or leas degree rivals that of national banks,
thus engendering from the state law itself
an implication of authority in Congress to
do as to national banks that which the
state law has done as to other corporations;
and (b) that the statute subjects the right
to exert the particular functions which it
. con f era on national banks to the adminis-
Mtrative authority of the Seaerve Board,
• giving besides to that board power to'adopt
rules regulating the exercise of the functions
conferred, thus affording the means of co-
ordinating the functions when permitted
to be discharged by national bonks with
the reasonable and nondiscriminating pro-
visions of state law regulating their exer-
cise aa to state corporations, — the whole
to the end that bannony and the concord-
ant exercise of the national and state pow-
er might result.
Before passing to the question of pro-
cedure we think it necessary to do no i
than say that a contention which
pressed in argument, and which It may be
was indirectly referred to in the opinion
of the court below, that the authority given
by the sectlMi to the ^Reserve Board was
void becftuss conferring legisIatiT* powM
on tiutt board, is to plainly adversely dis-
posed of by many prsvious adjudications aa
cause it to be necessary only to refer
them. Marshall Field & Co. v. Clark,
143 U. a 649, 36 L. ed. 2D4, 12 Sup, Ct.
Rep. 495; Buttfield v. Stranahan, 192 U.
' 470, 48 L. ed. 526, 24 Sup. Ct. Rep.
t; United States v. Grimaud, 220 U. S.
606, 65 L. ed. 563, 31 Sup. Ct. Rep. 480;
Monongahela Bridge Co. v. United Stat«fl,
216 U. 8. 177, 64 L. ed. 435, 50 Sup. Ct
Rep. 35R; Intermountain Rate Cases (UniV
ed States v. Atchison, T. & S. F. R. Co.)
234 U. 8. 470, GS L. ed. 1409, S4 Sup. CI.
Rep. 086.
The question of the competency of the
procedure and the right to administer the
remedy sought then remains. It involves
a challenge of the right of the state attor-
ney general to resort In a state court to
proceedings in the nature of quo warranto
to test the power of the corporation to
exert the particular functions given by
the act of Congress because they "'"re in-
herently Federal in character, enjoyed by
a Federal corporation, and susceptible only
of being directly tested in a Federal court.
Support for the challenge in argument is
rested upon Ableman v. Booth, 21 How. 600,
16 L. ed. 169; Tarblp's Case, 13 Wall. 397,
20 1^ ed. 607; Van Reed v. People's Nat.
Bank, 198 U. S. 654, 557, 49 L. ed. 1161,
, 25 Sup. Ct. Rep. 775, 3 Ann. Cas.
1154; State ex rel. Wilcox v. Curtis, 35
Conn. 374, 96 Am. Dec. 263. But, without
iquiring Into the merits of the doctrine
upon which the proposition rests, we think
when the contention is tested by a con-
sideration of the subjectmatter of this par-gt
ticular controversy it cannot be sustained.^
In other words, we'are of opinion that, as*
the particular functions in question, by the
express terms of the act of Congress, were
given only "when not in contravention of
state or local law," the state court was, if
not expressly, at least impliedly, authorized
by Congress to consider and pass upon the
question whether the particular power wu
or was not in contravention of the state
law, and we place our conclusicm on that
ground. We find no ambiguity in the text,
but if it be that ambiguity Is latent In the
provision, a consideration of its purpose
would dispel doubt; especially in view of
the Interpretation which we have given the
statute, and the contraat between the clause
governing the subject t^ the state taw and
the provision conferring administrative
power on the Reserve Board. The nature
of the subject dealt with adds cogency to
this view, since that subject involves the
action of state courts of probate in a uni-
versal aaiBK, implying from Its very natura
the duty of such courts to pass upon tha
,A_.oogle
UM. FIRBT NAT. BAHE v. FELLOWS ON BBLAHOH OV UNION TRUST 00. 7»
qontion, and tlie power of the court below,
within tlks limita of state jurisdietioD, to
settle, BO far bs the Bt&te was concerned,
tlie question for ftll such courts hj one suit,
thus sToiding the confusion which might
■rise in the entire sjstem of state probate
proceedings and the veiy serious injury to
Dutny claascB of societj which also might
be occasioned. And our conclusion on this
subject is fortified by the terms of g 67,
chap. 106, 13 Stat, at L. 116, making con-
troversies concerning national banks cog-
nizable in st&te courts because of their
Intimate relation to manj state laws and
r^ulations, although, without the grant of
the act of Congreas, such controversies
would have been Federal in character.
As it follows from what we have said
that the court below erred in declaring the
section of the act of Congress to ba un-
constitutional, the judgment must be re-
versed and the case remanded for further
proceedings not inconsistent with thi* opin-
1 it is s
ordered.
• *Mr. Justice Tui Devantei*, dissenting:
I dissent from the conclusion that tlits
proceeding could be brought and maintained
in the state court. It is an information
in the nature of a quo warranto against a
Federal corporation, — a national bank. It
calla in question the bank's right to exer-
cise a privilege claimed under an act of
Congress, the privilege, under the terms
of the act, being conferred only when "not
in contravention of the state or local law."
The information was brought by the attor-
ns general of the state in hie own name,
and charges that the bank's exercise of the
privilege is "in contempt of the people of
the state," by which it is meant, as the
record discloses, first, that the exercise of
the privilege by the bank is In contraven-
tion of the law of the state, and, second, that
the act of Congress under which the privi-
l^e is claimed transcends the power of C<on-
gresa and is void. The state court dealt
with both grounds. The first nas overruled
and the second sustained. The judgment
rendered enjoins and excludes the bank from
exercising the privilege.
The writ of quo warranto was a preroga-
tive writ, and the modem proceeding by
information is not different in that respect.
When it is brought to exclude the exercise
of a franchise, privilege, or power clairaed
under the United Btates, it can only be
brought in the name of the United States
and by its representative, or in such other
mode as it may have sanctioned. Wallace
V. Anderson, 6 Wheat. ESI, S L. ed. 91;
Nebraska r Lockwood, 3 Wall. 236, 18
L. ed. 47 1 Newman v. United States, £3S
V. 8. S37, 60 L. ed. 1416, 36 Sup. Ct Rap.
881. Aj la said in the Lockwood casei
"The right to institute such proceedings If
inherently in the government of the nation."
This is particularly true of national banks,
for they not only derive all their powers
from the United States, hut are instm-
mentalities created by it for a public pur-
pose, and "are not to be interfered with by
state legislative or judicial action, eiccptM
BO far*as the lawmaking power of the gov-7
ernment may permit." Davis t. Elmira
Sav. Bank, ISl U. S. 276, 2S3, 40 L. ed.
TOO, 701, 16 Sup. Ct Rep. 602; Van Reed
V. People's Nat Bank, 198 U. S. 654, 557,
4S li. ed. 1161, 1162, 26 Sup. Ct Rep. 77S,
3 Ann. Cas. 1164. Indeed, they are upon
much the same plane aa are otBcers of the
United States, because their conduct can
only be controlled by the power that created
them. U'Clung v. Sllliman, B Wheat. 698,
606, S L. ed. 340, 342. If it were otlierwise,
the supremacy of tha United States and ot
its Constitution and laws would be serious-
ly imperiled. Ableraan v. Booth, 21 How.
606, 16 L. ed. 169; Tarble's Case, 13 Wall.
3BS, 20 L. ed. 697; Tennessee v. Davis, 100
U. S. 257, 26 L. ed. 648; State ex rel. Wil-
cox V. Curtis, 35 Conn. 374, 96 Am. Deo.
263.
Tbxtt much, as I nnderstand it, is con-
ceded in this court's opinion, the conclusion
that the state court could entertain tha
Information and proceed to judgment there-
on, as was done, being rested upon an im-
plied authorization by Congress. This au-
thorization is thought to be found in the
provision stating that the privilege claimed
is given only "when not in contravention of
state or local law," and in the provision In
the Act of June 3, 1864, chap. 106, | 67, 13
Stat at L. 116, now in Rev. SUt S 5108,
Comp. Stat 1016, § 9759, which makes
suits against national banks cognizable in
certain state courts. I do not find any
such authorization in either provision.
The first does no more than to withhold
the privilege in question from national
banka located in states whose laws are op-
posed to or not in harmony with the pos-
session and exercise of such a privilege on
the part of the banks. It says nothing
about judicial proceedings, — nothing abont
who shall bring them or where they ahall
be brought. There is in it no suggestion
that quo warranto proceedings were in tlis
mind of Congress. Had there been a pur-
pose to do anything so unusual as to au-
thorize a state officer to Institute and con-
duct such a proceeding in a state court
against a Federal corporation, is it not res'
Bonahle to believe that Congress would haven
given expression to that^nrposel As before*
indicated. It said nothing upon the pOlB^
,A_^OOglC
T«
ST BUPESMB COURT REFORTEB.
oot. ;
— juat ks it wonld luive doD« hkd no sneb
purpose been in mind. But if the worda
"when not in contraventiim of gtate or locfti
law" could be r^krded aa giving any wu*-
rant for % quo warranto proceeding by *
etnte officer in a state court, I should aa;
tliey ivuuld do no more than to permit ■ucit
a proL'cvding to dstermlne whether the privi-
lege waa in cootraTention of the itate law.
Tliere is nothing in them which pointa even
remotelj to a purpose to aanction a proeeed-
ing lo determine the power of Congresa un-
der the Constitution to clothe a national
bank with the privilege Indicated. That
would be without any precedent in the leg-
ialatlon relating to Federal oorporationa,
and 1 submit that it ia moat improbable
that Congress either did or would entertain
•uch a purpose.
^e provision cited from the Act of 1804
haa been la the statutes tor flftj-three yeara,
and no one seems ever to have thought until
now that it was intended to authorize a
proceeding such aa this againat a national
bank. I think fta worda do not fairly lend
themaelvea to that purpoM. Thqr kan
hitherto betti regarded, and In practice treat-
ed, aa referring to ordinary suita auch aa
may be oonveniently prosecuted against k
Imnlc In its home town and county. Besides,
the terms of the provision show that it can
have no applicati<Hi here. After providing
for auing a national bank In the Federal
or territorial court of the district In which
it is established, the provision adds, "or
in any state, county or municipal court in
the county or city in which said association
Is located." Thia bank, aa the record die-
closes, is located in Bay City, Bay county.
The proceeding was twgun and had in tb*
supreme court of the state at the capital,
which is Lanaing, Ingham county. There*
fore the provialon can give no aupport to tha
proceeding. at
For these reasons I think the judgment^
should be'reversed, with a direction to die'
mlas the information for want of jurisdi^
Mr. Justiee Day anthorliea me ta M|>
ttiat he eoncura la this dissent.
■jGoogle
FOLLOWING AEE MEMORANDA
CASES DISPOSED OF AT OCIOBEB TERM, 1916,
oiBiaimi DHPOsm o
LuATOS, MtOHSL, & Lazaxub et ail., Peti-
tioners, T. W. P. O. Habdiro et al., Tru»-
tMS, etc {No. 227.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeala tor
tbe Fifth Circuit.
Hr. Oiranlt Farrar for petitioner!.
No eounsel appeared for reepondents.
April 25, 1917. Dismissed for want of
proseontion.
Datid E. Sovem et al., PlaintifTs In Error,
T. Fkahk T. Johijboti et al. (No. 244.]
In Error to the Supreme Conrt of the
SUte of Colorado.
Kfessra Ernest Knaebel and William W.
Grant, Jr. for plaintitTB in error.
No counsel appeared for detendanta In
April 28, 1917. Dismissed with «oita,
purauaat to the Tenth Rnla.
BX PABfBl IV THK MaTITS OF BmiflX J.
BnuiBAKD, Petitioner. [No. 29, Orlg-
fnaL]
Mr. Charles J. Gillson for petitioner.
No appearance for respondent.
June 4, 1917. Per Curiam: Rule dls-
flharged and petition dismissed apon the
authority of I fi of the Act (rf Congress of
July 30, 1894 (28 Stat, at L. 160, dtap.
172), i 3, Rule VIII. of the court of ap-
peals of the District of Columbia.
Lasb Gkaik Compart, Plaintiff In Error,
V. UmTD Statbs of AmKioa. [No.
SGB.]
In Error to the District Court of tha
United States for the Eastern Distriet of
Uissouri.
Messrs. Walter E, Baimders, John B.
Leab7, and Irrin V. Berth for plaintiff in
Hr. Boliciter General Davis for defendant
, 1617. Per Curiam: DismlBsed
for want of jurisdictian, npen the authori^ Bep.
of Hannls Distilling Co. t. Baltimore, ilt
U. S. 28S, 64 L. ed. IBS, 39 Sup. Ct Rep.
326; Hendricks ». United States, 223 U. 8.
178, 184, &e L. ed. 394, 396, 32 Sup. Ct. Rep.
313. See Re FalliMr, 136 U. S. 257, 266-
268, 34 L. ed. B14, S17-G19, 10 Sup. Ct
Rep. 1034; Homer t. United States, 143
U. S. 207, 214, 38 L. ed. 126, 130, 12 Sup.
Ct Rep. 407; BenM>n t. Henkel, 198 U. a
I. 16, 49 L. ed. 916, 024, 25 Sup. Ct Rep.
S«9; United SUtea t. Thaver, 209 U. S. 39,
44, 62 L. ed. 673, 676, 28 Bup. Ct. Rep.
426; Hfde t. United States, 226 U. S. 347,
301, 66 L. ed. 1114, 1123, 32 Sup. Ct Rep.
793, Ann. Caa. 1914A, S14.
AuDBT Pick ft Compaht, PlalntilT in Er-
ror, T. Frank C JoaoAit, Secretary ol
State of tbe State of California. [No.
184.]
In Error to the Supreme Court of the
SUto of California.
Mr. W. I. Brobect for plaintiff in error.
Messrs. U. S. Webb and Raymond Ben-
jamin for defendant in error.
June 4, 1Q17. Per Curiam: Judgment
aiDrmed with costs, upon tbe sutbority of
Kanaas City, Ft. S. t M. E. Co. v. Botkin,
240 U. S. 227, 60 L. ed. 617, 36 Sup, Ct
Rep. 261.
St. Lodu, Isor Mourtatr, ft SoTinacBR
Railway, Plaintiff in Error, -r. Wiluam
Irobam. [No. eOl.]
In Error to the Supreme Court of the
State of Arkansas.
Mr. Troy Pace for plaintiff in error,
Messrs. J. H. Ralston and William X.
Richardson for defendant in error.
June 4, 1017. Per Curiam: Judpnent
affirmed with costs, upon the authority of
Chicago Junction R. Co. v. King, 222 U. B.
222, 66 L. ed. 173, 32 Sup. Ct Rep. 79;
Seaboard Air Line R. Co. t. Padgptt, 238
U. S. 668, G9 L. ed. 777, 3fi Bup. Ct. Rep.
481; Baltimore ft 0. R. Co. ». Wbitacre,
242 U. S, 100, 61 L. ed. 228, 37 Sup. Ot
.A^iOOglC
748
37 SUPREME COURT REPORTER.
Oct. Tbk,
Xz pakte: Iir TBX Mati^ or Cobite^u
G. Goodrich et »1., Petitioner!. [No. — ,
Original.]
Motion for leave to file petition ton Writ
•f Prohibition.
McBBTs. EumU Taylor uid William D.
Qordou for petitioner!.
No connsel appeared for respondent.
June i, 1917. Denied.
Xz PABTB: Ik tbx Mattcb ov J. 8. KHr
aoBX, Sn^ and L. E. Hunter, Petitioner*.
[No. — , Original.]
Motion for leave to Ble petition for
Writ of Mandamus.
Mr. W, E. BreeM tor petitioners.
No appearance (or respondent.
June 4, 1917. Denied
BoBXBT D. KiNHKT, Petitioner, t. Euan
C. RicB. [No. —.J
Motion for leave to file petition for Writ
of Certiorari without certified copy td
transcript of record.
Mr, Robert D. Einne;, petitioner, pro ae.
No appe&rance for respondent.
June 4, 1917. Denied.
J. Knox Osmt, Petitioner, t. Uhitid
Etates. [No. 1126]
Petition for a Writ of Certiorari to tie
United States Circuit Court of Appeals
for the Eighth Circuit.
Meaars. James C. Denton and Frank Lee
for petitioner.
Mr. Solicitor General Davie for
June 4, 1S17. Granted.
EALPn K BIJUB and Thomas Addis, Peti-
tioners, V. Unithi Statcs. [No. lOBB.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Ninth Circuit
Kfessrs. J. J. Dunne, Allen O. Wri^t, T.
E. K. Cormac, and F. R. Coudert fur peti-
tionee.
Mr. Solicitor General Davis tor reapond-
June 4, 1017. Denied.
Uains NoRTHWKSTEBn Developueht Coh-
FANT, Petitioner, v. Nosthwest^ui Com-
iiBBCLAL CauPAnr. [No. 1097.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
tlie Ninth Circuit.
Ur, William H. Goham for petitioner.
Messrs. W. E. Bogle and Carroll B.
Graves for respondent
June 4, 1917. Denied.
H. A. A. SuiTH, Petitioner, v. GoT^MVxn
or THE CADAI. ZOHE ^ BB. WlLUAH C.
MaoIntibk. [No. 1008.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Fifth Circuit.
Messrs. Jaclcscm E. Ralston, William E.
Richardaon, and Frank Anille for peti-
No ^pearane* for responde&L
June 4, 1917. Denied.
Unioit PAcmo Railboad Cokpaitt, FMi-
tioner, v. Ebba J. Vaimra, as Admia-
istratrix, ete. [No. 1116.]
Petition for a Writ of Certiorari to the
Supreme Courii of the State of Nebraslu-
Messra. Nelson H. Loomia and Alfred
G. Eliick for petitioner.
Messrs. John J. HalligaJi and G. Petraa
Peterson for reepondent
June 4, 1S17. Denied.
William P. Eixison, Ina., Petttkatw, ▼,
Mabshall B. Hinin, a* T^nsteSr ata.
[No. 1124.]
Petition for a Writ of Cvtitovri to t]w
United States Circuit Court of Appeals
for the Sectmd Circuit.
Mr. Jacob J. Leaser for pstltloner.
Mr. Oscar W. JeSstj for respondent
June 4, 1917, Denied.
Daisy B. Jaaa, Petitioner, '
Laokawanita, ft WcBTniT Raiuoas
COMPANT. [No. 1136.]
Petition for a Writ of Certiorail to tlM
United States Circuit Court of Appaala for
the Third Circuit
Mr. Alexander Simpson for petitioow.
No appearance for respondent
June 4, 1017. Denied.
St. Louis & Sait Fbanouoo Railboas
CoMPAKi, Plaintiff in Error, v. Edoab E.
HoDOE, a Minor, etc. [No. G26.]
In Error to the Supreme Court of tba
State of Oklahoma.
Mr. W. F. Evans for plaintiff in error.
No appearance for defoidant in error.
June 4, 1917. Dismissed with costs, <hi
motion of counsel for the plaintiff in error.
St. Louis South wsbimiT Railway Coh-
PANT, AppellEuit, V. W. H. McIiAnaHLia
et al., Constituting, etc [No. 508.]
Appeal from the United States Cireuit
Court of Appeals for the Eighth Circuit
Messrs. Edward A. Haid and William T,
Wooldridge for appellant
Messrs. W. E. Hemingway, G. B. Rosa^
J. F. Loughborough, and V. H. Miles for
appellees.
June 4, 1B17. Dismissed per sttpnlatlaa.
,A_i00gle
uu.
MBHORAKSA OASBB.
TU
Unrmt SrAiva or Aktsioa kz sTLATiom
AiTTT Beynolds, Plaintiff in Error, v,
Fo&NELiN K. L>AnK, Secretary of the In-
terior. [No. 037.]
In Error to the Court of Appeals of tilc
District of Colombia.
Messrs, James W. McNeill and Norman
R Haskell for ptaintiff in error.
Mi.'ssrs. Charles D. Malintfie and C. Ed>
ward Wright, for defendant in error.
June 4, 1917. Ditjiuissed 'with coats, on
motion of counael for the plaintiff in
AiMLiAN CoMPANi, Petitioner, t. Tigtob
Talking Maouike Compact. [No.
1143.]
Petition for a Writ of Certiorari to the
United states Circuit Court of Appeals for
the Third Circuit.
Mr. Arthur C. Hounds tor petitionei
MeBsra, Thomas E. French and Samuel
H. Kiehiirds for reHpnndeat.
June 6, 1917. Denied.
JosFTK Ubnrt Bash et al.. Plaintiffs In
Error, t. William Howald. [No. 657-]
In Error to the Supreme Court of the
State of Oklahoma.
Mr. P. C. Simons for plaintilTa In error.
Mr. J. B. Ferguson for defendant in
June 11, ]»17. Per Curiam: DUmlssed
tor want of jurisdiction upon the authority
of Deming t. Carlisle Packing Co. 226 U.
e. 102, 108, 67 L. ed. 140, 142, 33 Sup. Ct
Bep. 80; ConKolidatcd Turnp. Co. v. Nor-
folk 4 0. V. R. Co. 228 U. S. 596, 600, 57
L ed. 982, 983, 33 Sup. Ct Rep. 609;
Parker t. McLain, 237 U. S. 4B0. 59 L. ed.
1051, 36 Sup. Ct Rep. 632; Btewart v.
Kansaa City, 239 U. S. 14, SO L. ed. 120,
36 Sup. Ct. Rep. 16; Re Neagle, 135 U. S.
05, 34 L. ed. fl8, 10 Sup. Ct. Rep. 658; Re
Delgado, 140 U. S. 686, 688, 35 L. ed. 678,
11 Sup. Ct Bep. 874.
Weatben Uwioi* Tuboraph Ojmpaitt,
Plaintiff in Error, v. Louisvuxe t Nash-
vn.Lc Railboad Cohpaht. [Nob. 1036,
1030, 1037, and 1038.)
In Error to the Supreme Court of the
State of Alabama.
Messrs. Rush Taggart, Ray Ruahton,
Forney Johnston, and William M. Williams
for plaintiff in error.
Messrs. Henry L, Stone and E. Perry
Thomaa for defendant in error.
June 11, 1917. Per Curiam: Judgments
affirmed with coats, upon the authority of
Pen,^acola Tel^. Co. t. Weatem U. Teleg.
Co. aa U. S. 1, 84 L. ed, 708; Weatem U.
Teleg. Co. t. Ann Arbor R. Co. 178 U. S.
239, 44 L. ed. 1062, 20 Suy. Ot Rep. 887;
Weatem TJ. Teleg. Co. v. Pennsylvania R.
Co. 195 U. S. 540, 49 L. ed. 312, 25 Sup.
Ct. Hep. 133, 1 Ann. Caa. 617; Western U.
Teleg. Co. t. Richmond, 224 U. S. 160, 66
L. ed. 710, 32 Sup. Ct. Rep. 440; I«uiBville
t N. R. Co. V. Western U. Teleg. Co. 237
U. a 300, 59 L. ed. 966, 36 Sup. Ct. Rep.
'698.
Petitions for Writs of Certiorari denied.
CABounA, CvmonrxELa, & Ohio Railway,
Plaintiff in Error, v. Qbobgb W. Steoup.
(No. 1122.]
In Error to the United BUtea Circuit
Court of Appeals for the Sixth Circuit.
Mr. John W. Price for plaintiff in error.
Messrs. Isaac Harr and Robert Burrow
for defendant in error.
June 11, 1917. Per Curiam: Dismlaaed
for want of jurisdiction upon the authority
of g 3 of the Act of Con^esB of September
e, 191(1 <3e Stat at L. 727, dtap. 44S.
Comp. Stat 1916, | 1120b).
Ouaha Bai,~u Iron St(»e Co., formerly
Omaha Iron Store Co., Appellant, T.
Mor.rNB Pi«w Company. [No. 1029.]
Appeal from the District Court of tha
United Statea for the District ot Nebraska.
Mr. Otto Raymond Barnett for appellant
MoEsrs. Samuel W. Banning and Thomaa
A. Banning for appellee.
June 11, 1917. Per Curiam: Dismissed
for want of jurisdiction upon the authority
of Aspen Min. t Smelting Co. v, Billings,
160 U. S. 31. 37, 37 L. ed. 080, 088, 14 Sup.
Ct. Rep. 4; Brown v. Alton Water Co. 222
U. S. 325, 5(1 L. ed. 221, 32 Sup. Ct Rep.
166; Metropolitan Water Co. v. Kaw Val-
ley Drainage Dist. 223 V. S. 619, 66 L. ed.
533, 32 Sup, Ct. Rep. 24C; Union Trust
Co. V. WcBthus, 228 U. S. 519, 67 L. ed.
047, 33 Sup. Ct, Rep. 603; Shapiro t.
United States. 235 U. S. 412, 60 L. ed. 291,
35 Sup. Ct. Rep. 122.
P. C. CBehln, County Treasurer of Cnya.-
ho^ County, Appellant, v. John D.
Rocn;EFELr.ER. [No. 1102.]
Appeal from the United States Circuit
Court of A|ipenla for the Sixth Circuit
Messrs. Samuel Doerfler and Thomaa 8.
Duiilap for appellant.
Messrs. W. B. Sanders and A. K Cleren-
ger for appellee.
June II, 1917. Per Curiam: Dismlaaed
for want of jurisdiction upon tho authority
of: (1) Weir t. Rountree. 218 U. S. 807,
54 L. ed. e;).), 30 Sup. Ct. Rep. 413: Bu^ley
V. Ceneral Fire ExtinsuUher Co. 212 U. S.
477, 53 h. ed. 805, 20 Sup. Ct. Ecp. 341;
O. i, C. Mcrriam Co. t. Syndicate Pub. Co.
237 U. S. 618, 50 L. ed. 1148, 36 Sup. Ct
R«p. 708; Norton t. WhiUaide, 239 U &
D,at,z.,i-.,'^-.00'^IC
744
37 SUFREUE OOUBI BEFO&I&B.
On. '
144, 148, 147, 60 L. «d. 186, 187, M Bup.
Ct. Kep. 97; (2) Arbvckle v. Blackburn,
101 V. 8. 406, 48 L. ed. 239, £4 Sup. Ct
Rep, 14S.
Petition (or Writ of CertloFArl denied.
Ex rnKTE: In thb MATim ov Donn M.
RoeEKTS, Petitioner [No. — , Original]!
and Ez TAXTB: In thz Matt^ of Dbn-
KiS Shea, [No, — , Original.]
Motiong for leava to file petitions for
Write of Habeas Corpus.
Mr. FrtuiB E. Lindquist for petitlonert.
No Etppearance for respondent.
June 11, 1917. Denied on tlie author-
ity of United States v. Mosley, 238 U. S.
383, 59 L. ed. 13Go, 35 Sup. Ct Bep. 904.
In Error to Uie Supreme Court of the
State of Idaho.
Mr. Cliarles W. Beale for plaintiff In
Mr. John P. Gray for defendant in error.
June 11, 1017. Per Curiam: DiamiBsed
for want of jurisdiction upon the authority
of Luxton T. North Ri»er Bridge Co. 147
U. S. S3T, 37 L. ed. 194, 13 Sup. Ct. Rep.
856 ; Southern R. Co. t. PobUI Teleg.-Cable
Co. 179 U. 8. 641, 46 L. ed. 365, SI Bup.
Ct. Rep. 249; Grays Harbor Logging Co. v,
Coats-Fordney Logging Co. S43 V. S. 251,
61 L. ed. 702. 87 Sup. Ct Rep. 296.
Ex PAKTT: In THB MATTER 0» ATASTA
HtioHEB, Petitioner, [No. — > Original.]
Motion for leave to file petition for Writs
of Prohibition and Mandamus.
Mr. Benjamin Patterson for petitioner.
No appearance for respondent
June 11, lOlT. Denied.
SiDKET Eenkt et al., t. A. B, Dick Con-
PAMY, [No. 20, October Term, 1911.]
Motion for leave to file bill of review in
the District Court of the United States for
the Southern District of New York.
Messrs. Arthur von Briesen and Hans
Ton Briesen for ooniplainants.
No appearance for defendaJit
June 11, 1017. Granted.
JoflVB Feebiilah, PctiUoner, t. U>Rm>
SxAna. [No. 820.]
PeUticm for a Writ of Certiorari to tlM
Dnited States Clrouit Conrt of Appeals for
tbe First Circuit
Messrs. Charles T. Gallagher and William
H. Taylor for petitioner.
Mr. Solicitor General Davis for r
June 11, U17. Denied.
W. P. TnCKM, Petitioner, ». CBAWPORn*
vnxB Stais Bank. [No. 1062.]
Petition for a Writ of Certiorari to the
United SUtes Circuit Court of Appeals for
tbe Fifth Circuit
Mr. J. C. Davant for petitioner.
Mr. Peter 0. Knight for respondent
June 11, 1017. Denied.
Indian Laud h I^ust Cohpart et aL,
Petitioners, t. Ronrar L. Ovran. [No.
1110.]
Petition for a Writ of Cwtiorari to tlw
Supreme Court of the State of Oklahoma.
Mr. L«wis C. Lawson for petitioners.
Mr. W. W. Noffsinger fw respondent
June 11, 1917. Denied.
HABitnrr L. Bioob, Petitioner, t. Gnwa
£. MOBBis et al. [No. 1113.]
Petition for a Writ of Certiorari to the
Court of Errors and Appeals of the Stata
of New Jersey.
Mr. Donald H. McLean for petitioner.
Mr. Benjamin F, Edsall for respondents.
June 11, 1917. Denied.
Cranz Compant, Petitioner, ▼. FmELm
Tkubt Compamt, Trustee etc [No,
1114.]
Petition for a Writ of Certiorari to the
United SUtes Circuit Court of Appeals
for the Ninth Circuit.
Mr. C. W. Fulton (or petitioner.
Mr. Randolph W. Cbilds for respondent
June 11, 1917. Denied.
CiTT OP RiCHUOND, Petitioner, t. Elizabeth
W. BiBO et al. [No. 1130.]
Petition for a Writ of Certiorari to the
Unitpd States Circuit Court of Appeals for
the Fourth Circuit
Mr. George Wayne Anderson for peti-
No appearance for respondents,
Jane 11, 1017. Granted.
Caleb B. Rioob et al.. Petitioners, t. Jobh
J. ClLLBEFIK [No. 1123. J
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Fourth Circuit.
Mr. Charles K Hogg for petitioners
No appearance for respondauL
June 11, 1017. Denied.
..Google
uu.
HBUOHANDA OASB&
IiUHoia Ctensu. "*"■■*'» OmtrAxr, Pe-
titioner, V. Unim STA-m. [No. 1128.]
FetiUoDBT for a Writ of Cartlorui to tlia
United StAtM Circuit Qnat «l Appekli for
tiia Eighth Circait
Heura. Blewett Lm and W. 8, Horton
fw peUtioiMr.
Mr. Solicitor 0«a«ral D»Tlf for ra^oiid-
June U. IBIT. Deoted.
lUn.BOiit CoMTAST, Patltionar, t. Ib»-
Br H. Uaimihr. [No. 1129.]
PBtitlon for a Writ of Cwtiontri to tlte
Daltod 8t>tM Cireult Court of AppttlM f9r
the SeeoDd Circuit.
Mr. WlUUun 8. Jmumj (or petitloMC.
Ifr. CUjton R. Lnik tor reapoadnt.
JvBe 11. IBIT. Denied.
Ibz JA>n et ■!., PktiUonar^ t. J. A. K.
Ptu^ U Traatee, etc. [No. IISI.]
Petition for a Writ o( CertioraTi to the
United Btatee Cireult Court of Appmim tot
tte Fifth Circuit.
Ur. George T. Hogg for petitioncrib
No
for
Jime 11, ISIT. Denied.
BfAinuBD Qai IdBRT OoMrAKT or IBS
Cnr or Nnr Tcmx, Fetiticmar, t. B. Q.
Pjukaw C<na>Ainr. [No. 11S&.]
PatltiOD fer a Writ of Oerttorui to the
United SUtM Clronit Coort of Appecla
for tlie Seoond Clrenlt.
Mr. John A. Oarrer for paUtienar.
Mr. Mark Aih for reapondent.
June 11, 1B17. Denied.
c Wallaoh et aL, PaUUon-
•ra T. Coximjua E. O. Biluhh. [No.
1133,]
Petition for a Writ of Certiw«ri to the
Supreme Court of the SUta of niinoia.
Mesara. Jacob Newman, C. H. Popp«»-
kuaen, and E. L. Btem for petitionen.
Mwera. Jeaaa J. Rida and J. F. Mea^w
June 11, 1S17.
Wmvr k Taebjutt iLurartiananm Oon'
PUTT, Petitioner, t. BmaoiMBB ASDina
MAO&nn CfotrAXY. [No. 1138.]
Petition fer a Writ of Certiorari to tta
OUted Statee Clrenlt Cowt of A^m^ fer
the Savnth Circait.
Mr. Henry Lom CUrite fer pettttcaar.
k Mward W. Kwiter Md Bobwt H.
> 11, ISIT. DMied.
Feabk WKxai, Patltlonar, t. O. W. Kua
•t al. [No. 1141.]
Fetitlou for a Writ of Certiorari to tk
Supreme Court of the Btate of Oklahomat
Mr. William P. Thompaon for petitlout.
No appearance for reapondenta.
June 11, 1B17. Denied.
W. H. LriMT, Petitioner, ▼. Joan P. Bi«i%
Tniatee, eta. [No. 1143.]
PvtiUon for a Writ of Certiorari ta tka
Unltad Btet«B OiraoH Court of Appeala las
the Bl^tk Clranit.
UMWa. Park DbtIb, C. C. QOdwdl, and
Thomaa Stwllnff for peUtioner.
Meaara. O. O. Bailir and J. H. T«art««
for reapondent.
June 11, UlT. Denied.
M. F. Wrm, Petitioner, t. W. A. BHMflOK,
aa nnit«l Btatea Uarahal, ate, [Na.
1148.]
Petition for a Writ of Cwtlorari to tha
United SUtea Ctreult Ooort ^ Appeala
f« the Eighth areult
Meaara. Paul A. Bwert, Neman R. Haa-
kell, and Henry 0. Lewta for peUtlooer.
Mr. Solicitor Qeneral Davia fer reapon^
ani
June 11, HIT. DMled.
Petitions, r. W. A. BrSf
lOH, a> Dnitad SUtM MarduO, ete. [No.
1147.]
Petition fer a Writ of Oartiorari to the
Unlt«d Statea Circuit Court of Appeala for
the Eighth Circuit
Meeara. Norman K. Haakell, Bl GI. Mo-
*'<""Ti and Hairy C. Lenrla for petitioner.
Mr. Solicitor General Darla for reapon^
June 11. 1&17. Denied.
JonvH K. Wio et aL, Petitionera, t. Cob-
RKUua C. Wath et «L [No. 1161.]
Petition for » Writ of CwtlwaH to the
United Statea Cireult Court of ,^)peak
for the Ninth Ctrcuit.
Mmti. Balim M. Franklin, O. H. Bra-
rilUar, and Jantea W. Troon lor petitkmara.
Meeara. Joeei* W. BaHagr and Waldon
I 11. ini.
Diatiz.dbyGoO^le
TM
37 8UPRBUB COURT REPOKTEE.
Oct, Izbu,
EiSBcrr Coupakt, «te. et »L, Petitioners,
T. THOxAa BwiNa, Commueionei of P&t-
«aU. [No. 1153.}
Petition for B Writ of Certiorari to the
United Stfttee Circuit Court of jt^peali for
the Second Circuit.
HeMrs. W. H. Swenarton uid T. B. Mer-
win for petitionera.
No appearuice for reepraidelU^
Jmu 11. 19U. Deaitia
&UCUZL It. Kmm^ at at, Keoeiveri, ete.,
Pstitioners, t. Axi.lntio CoiuiCUHiCA-
Tion CoHPANT et al. [No. 11S4.]
Petition for % Writ of Cwtior&ri to th*
United States Circuit Court of Appeals for
the Second Circuit.
Mr. Frederick W. Winter for petitionov.
Ueoars. Frederick P. Itah, B*ttj S.
Enight, and Harrison F, Lynuw lor r»-
Bpondenta.
Jan* 11, U17. Dutia^
Stoo or Cases i
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