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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 

<{ 

WEST  PUBLISHING  CO. 

I.I 

1917 

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v,?.-t 

Dig 

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OopnioHT,  1918 

BT 

r  PDBUSHINQ  OOMPJJfX 
COPTBIOHT,  191T 

BT 

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(87  SUP.Ol.) 


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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. 


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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 


VOL.  242,  UNITED  STATES  REP6RTS 


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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 


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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 


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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. 


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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. 


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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. 


>v  Google 


■jGoogle 


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* 


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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. 


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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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